### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00658- CR NO. 03-11-00659- CR

David Pr eston Cam pbell, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NOS . CR22,2 08 & CR22,2 09, H ONO RAB LE JO HN Y OUNGB LOO D, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

These are appea ls pursuant t o Anders v. Calif ornia , 386 U.S. 738 (1967). I n trial co u rt cause number CR22,208 (appe llate cause number 03-11-00658- CR), appellant David Preston C am p b el l wa s charg ed with the offe nse of burg lary of a building. See Tex. Penal Code Ann. § 30.02 (West 2011). I n trial court cause number CR22,209 (appe llate cause number 03- 11-00659-CR), Campbell was char g ed with the offe nse of theft from a person See Tex. Penal Code Ann. § 31.03(e) (4)( b) (West Supp. 2012). Campbell pled guilty to both offe nses. The district court found the evidenc e sufficie nt to support a fi nding of g uilt in eac h cause , withheld such finding s at that time, and order ed a pre- sentenc e investigation repor t (PSI ). Following a sentenc ing hear ing, punishment was assessed at eig hteen months in state jail for both char g ed offe nses with the sentenc es to run conc urre ntly , but with no credit for time served. T hese a

ppeals followe d.I n eac h cause , Campbell’s court- appointed attorne y has filed a

motion to wit hdraw supported by a brief concluding that th e appea l is frivolous and without merit. Counsel has sent Campbell a copy of coun sel’s brief and advised him of his rig ht to examine the appellate rec ord and to file a pro se brief. See Anders , 386 U.S. at 744-45. No pro se brief or other written response has bee n filed. We have revie wed the rec ord, including appellate counsel’s briefs, and find that the rec ord contains at least one arg uable g round for appea l. See G arner v. State , 300 S.W .3d 763, 766 (Tex. Crim. App. 2009); Bledsoe v. State , 178 S.W .3d 824, 8 2 6 -2 7 (Tex

. Crim. App. 2005). Specifica lly , the rec ord re flec ts that the district court denied Campbell’s reque st to be g iven cre dit for time serve d. The arguable issue, as noted in a concur ring opinion out of the For t Worth Court of Appea ls, is “whether article 42.12, section 15 of t he code of criminal procedure vests a trial court with discretion—despite contra ry mandatory lang uag e in article 42.03, section 2(a) (1) of the code of criminal proce dure—to deny a defe ndant’s reque st for cr edit for time serve d betwee n arr est and sentenc ing when the defe ndant has been convicted of a state jail felony and is sentenc ed direc tly to imprisonment in a state jail fac ility , rathe r than plac ed on community supervision.” In re Crave n , No. 02-09-00243- CV, 2009 Tex. App. L EXI S 8836, at *1 (Tex. App.—For t Worth Nov. 13, 2009,

o rig

. proce eding ) (Walker, J ., concur ring ). As the concur

ring justice observe d, althoug h other courts of appea ls—including this one—have found that a trial court does have such discretion, “the 1 Court of Criminal Appea ls has y et to deter mine in a published opinion” the prec ise issue of “whe ther article 42.12, section 15(h) of the code of criminal proce dure vests a trial court wi th discretion to deny a defe ndant’s reque st for cre dit for time serve d betwee n arr est and sentenc ing in a case in which
See, e.g. , Holloway v. State , 115 S.W .3d 797, 798 (Tex. App.—Austin 2003, no pet.); Hoitt 1 v. State , 30 S.W .3d 670, 676, 677 (Tex. App.—Texarkana 2000, pet. re f’d)

. 2the defe ndant is convicted of a state jail felony and sentenc ed direc tly to imprisonment in a state jail

fac ility .” See id . at *11. We conclude that this issue has an arguable basis in law and is therefor e not frivolous. See McCoy v. Court of Appeals , 486 U.S. 429, 4 3 8 n . 1 0 (1 9 8 8); In re Schulman , 252 S.W .3d 403, 407 & n.12 (Tex. Crim. App. 2008); Bledsoe , 178 S.W .3d at 827. By this holding, howeve r, we intend no comment as to the ult i m at e m er i t s o f this issue. See Holloway v. State , 115 S.W .3d 797, 7 9 8 (Tex

. App.—Austin 2003, no pet.); but cf

. Craven , 2009 Tex. App. L EXI S 8836, at *11 (Walker, J., concurr ing)

.

Be cause an Anders brief has been filed, we may not addre ss the merits of any arguable g round for appea l until the issue has been briefe d by new counsel. See Bledsoe , 178 S.W .3d at 827. Acc ording ly , the appea ls are abate d. The district court is instructed to appoint substitut e counsel to file a brief a ddressingthe above issue, alongwith any other iss ue that counsel deems meritorious. See Stafford v. State , 813 S.W .2d 503, 511 (Tex. Crim. App. 1991). I n eac h cause , prese nt counsel’s motion to wit hdrawis gr anted. See id

. A copy of t he order appointing substitut e counse l shall be forwa rde d t o t his Court no later than September 4, 2012. Substi tute counsel’s brief will be due thirty day s after

the date of

appointment.

__________________________________________

Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and H enson Abated Filed: August 23, 2012 Do Not Publish

3