### 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. 03-10-00285- CR NO. 03-10-00286- CR

Cody Harold Fr agel, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NOS . 652 99 & 653 00, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

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

I n two cause s, appellant Cody Har old Fr ag el pleaded guilty to the offe nse of ag g rava ted ro b b ery . See Tex. Penal Code Ann. § 29.03 (West 2003). Punishm ent

was assessed at ten y ear s’ imprisonment in cause number 65299 and twelve y ear s’ imprisonment in

cause number 65300. Additionally , in cause number 65300, t h e district court order ed Fr ag el to pay $945.00 in court-a

ppointed attorney ’s fee s. I n two issues on appea l, F rag el asser ts tha t ( 1) the district court err ed in failing to awa rd him the appropr iate amount of cre dit for time spent in jail prior to his conviction and (2) there was insufficient evidenc e to order Fr ag el to pay court-a p p o i n t ed attorney ’s fee s. We will aff irm the judgme nt in cause number 65299. We will modify the judgme nt in cause number 65300 to delete that portion of the judgme nt requiring Fr ag el to pay attorney ’s fee s and, as modified, a ffirm.The State alleg ed that Fr ag el robbed a Su b wa y store in Killeen on two separ ate

occa sions on J uly 26 and Aug ust 9, 2009. The State further alleg ed that during eac h robber y , Fr ag el used and exhibi ted a deadly wea pon, n am el y a k n ife. The only document in the record providing details of the robber ies and the events leading to Fragel’s appre hension is an “af fidavit of arr est” prepa red by the arr esting office r. Acc ording to the aff idavit, Fr ag el was arr ested on Aug ust 14 for 1 what appear s to be an unrela ted offense. At that time, the arresting off i ce rs o b s erve d that Fr ag el 2 “appe are d very simil ar to the descr iption of the suspect in the Subway robbery

. ” A p hoto lineup

was prepa

red and shown to the two cler ks who wer e working at t h e s t o re d u ring the robber ies. Both victims identified Fr ag el as the man who had robbed them. An office r interviewe d Fr ag el on Aug ust 20. At that time, acc ording to the office r, Fr ag el admitted to committing the robber ies. The

arr est aff idavit was signe d by the office r on Aug ust 21, and Fr ag el was broug ht befor e the mag istrate for his initial hearing on Aug ust 22.

On Ap ri l 5, 2010, Fr ag el pleade d g uilty to both robber ies. On April 8, the d i s t ri ct court assessed the punishment noted above and sentenc ed Fr ag el acc ording ly

. During its

o ra l p ro n o u nceme nt of the sentenc e, the district court stated, “I will g ive y ou cre dit for the d ay s
The rec ord in eac h cause contains a differ ent arr est af fi d av i t
. Although eac h aff idavit 1 rec ites differ ent fac ts corr esponding to eac h robber y , they are identical in many respe cts. For convenie nce, we will r efe r to the aff idavit in cause number 65299, as that aff idavit w as filed first. The arr est aff

idavit does not specify the offe nse for which Fr ag el was arr ested on this date. 2 We note that in addition to the robber ies, Fr agel was also char g ed with the offe nse of criminal mischief, which was alleg ed to have occur red on J uly 19, 2009. Fr ag el pleade d g uilty to this offe nse at t h e same time he pleade d g uilty to the robber ies. The criminal-mischief cause , howeve r, wa s not a ppeale d, and no appellate rec ord of that conviction has been provided. As a result, we cannot deter mine whether this was the offe nse for which Fr ag el was arr ested on Aug ust 14. Howeve r, there is no indication in the rec ord that the Aug ust 14 arr est was for the robber y offe nses, and Fr ag el does not contend other

wise. 2y ou have serve d

. . . .” The district court did not announce on the rec ord the specific number of day s

it was cre diting to Fr ag el, and no further discussion of jail-time cre dit appea rs in the rec ord. Howeve r, on the same day sentenc e was p ro n ounced, Fr ag el filed a written reque st for cre dit of 230 day s beg inning on Aug ust 2, 2009 and ending on April 8, 2 0 1 0

. T h e o ri g inal judgme nt of conviction re flec ts those dates.

The dis t ri ct court subsequently enter ed a judgme nt nunc pro tunc amending the judgme nt to reflec t jail-time credit beg inning on Aug ust 22, 2009. The ending date is uncha ng ed. I n his first issue, Fr ag el asser ts that he was entitled to rec eive the amount of jail-time cre dit specifie d i n t h e o ri gi n al judgme nt and that “ther e is no evidenc e in the rec ord to support the nunc pro tunc order .” We disag ree .

“I n all criminal case s, the judge of the court in which the defe ndant is convicted shall g ive the defe ndant cre dit on the defe ndant’s sentenc e for the time that the defe ndant has spent in jail fo r the case , other than confine ment serve d as a condition of community supervision, from the time of his arrest and confineme nt until his sentenc e by the trial court.” Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (1) (West Supp. 2010) (e m p h as is added)

. The trial court cannot, howeve r, g ive cre dit for time not spent in custody

. Ex parte Hayw a r d , 7 1 1 S

. W .2d 652, 656 (Tex. Crim. App. 1986); see also Ex parte Harve y , 8 4 6 S

. W .2d 328, 329 (Tex. Crim. App. 1993) (jail time

cre dited by trial court may not exceed time be tween date of commission of offe nse and imposit ion of sentenc e). “A judgme nt nunc pro tunc is the appropr iate avenue to make a corr ection when the court’s rec ords do not mirror the judgme nt that was actua lly rende red.” Colli ns v. State , 240 S.W .3d

3925, 928 (Tex. Crim. App. 2007). Credit for time s erved is an element of the judgme nt. Id .;

see Tex. Code Crim. P roc. A nn. art. 42.01, § 1(18) (West Supp. 2010). Thus, “ wher e a defe ndant has been denied cre dit for jail time to which he is entitled, the trial court may enter appropr iate nunc pro tunc order s authorizing cr edit for the a ppropriate time.” Shaw v

. State , 539 S.W .2d 887, 890 (Tex. Crim. App. 1976). Conversely , when a defe ndant has been g iven cre dit for time not spent i n cu s t o d y to which he is not entitled, “the trial court has the authority to make corr ections in th e

rec ords to show the truth of what actually occur red in the c ase,” i.e., the ac tual time the defe ndant spent in jail prior to his sentence

. Id

.

The j u d gm en t that was actua lly rende red in this case , as pronounce d by the district court during sentenc ing, was that Fr ag el rec eive “cr edit for the day s [he] serve d.” Howeve r, the starting date ref

lected on the orig inal written judgme nt of conviction does n o t co n fo rm t o the time Fr ag el s erve d. There is nothing in the record to sug g est that Fr ag el’s arrest and confine ment for the robber

y offe nses beg an on Aug ust 2, 2009. I n fac t, one of the robber ies for which Fr ag el was 3 char g ed was not committed until Aug ust 9. Although the other robber y was committed on J uly 26, it is undisputed that Fr ag el was not questioned c oncer ning either robber

y until Aug ust 20, the first aff idavit for his arr est was not signe d until Aug ust 21, and he was not taken into custody and broug ht befor e the mag istrate for his initial hear ing until Aug ust 22. This d at e corresponds t o the s tarting date ref lecte d i n t h e j u d g ment nunc pro tunc enter ed by the district court. Thus, acc ording to the

Fr ag el char acte rizes his reque st for jail time cre dit as “evide nce” of his entitlement to the 3 cre dit specifie d in the reque st. I t is not. As the State observe s, “it is mere ly a reque st and not proof of time serve d.” Fr ag el attache d no supporting documentation to his reque st, nor did he explain in his request the f

actua l or leg al basis for the Aug ust 2 starting date. Nor ha s he done so on a ppeal. 4rec ord bef ore us, the ja il-time c redit spec ified in the judg ment nunc pro tunc confor ms to the tim e Fr ag el actua lly serve d prior to his sentenc e. Acc ording ly , we conclude that the district court’s entry of the judgme nt nunc pro tunc was proper . See Ex parte Y barra , 149 S.W .3d 147, 148 (Tex. Crim. App. 2004) (holding that when trial court fails to awa rd appropr iate pre- sentenc e jail time cre dit at time sentenc e is imposed, “the trial court has the authority to corr ect the judgme nt to ref lect the appropr iate time cr edit by nunc pro tunc order and should do so”); see also Tex. R. App. P . 23.2. We overrule Fr ag el’s first issue. 4

I n his second issue, Fr ag el arg ues that the evidenc e was insufficient to support the district court’s order for Fr ag el to pay court-a ppointed attorney ’s fee s in cause number 65300. The State conce des that the e vidence was insuffic ient. Having revie wed the r ecor d, we a g ree .

As an al t er n at ive to reve rsing the district court’s judgme nt nunc pro tunc and there by 4 reinstating the starting date specifie d in the orig inal written judgme nt, Fr ag el asks us to “re mand this case back to the trial court to deter mine the proper back- time cre dit to which Appellant is entitled.” The court of criminal appe als has previously stated that “[b] efor e any unfavor able nunc pro tunc order s are enter ed the person convicted should be g iven an opportunity to be prese nt for the hear ing, represente d by counsel, in order to acc ord him due proce ss of law.” Shaw v. St a t e , 5 3 9 S

. W

. 2 d 887, 890 (Tex. Crim. App. 1976). Howeve r, subsequent to Shaw , the court of criminal appea ls has explained that no rema

nd is nece ssary if the trial court’s entry of the nunc pro tunc order was proper . See Homan v. Hughes , 708 S.W .2d 449, 454-55 (Tex. Crim. App. 1986). This i s b ec ause “the outcome would not chang e” upon rema nd and such a hear ing would be a “usele ss task.” Id

. Having conclude d t h at the district court’s entry of the judgme nt nunc pro tunc was proper , we need not rema nd the case . See id .; Lancaster v. State , 324 S.W .3d 217 , 2 2 8 (T ex . Ap p.—Waco 2010, pet. ref ’d); see also Carter v. State , No. 03-09-00211- CR, 2009 T ex . Ap p . L EXI S 9265, at *2 (Tex. App.—Austin Dec

. 3, 2009, no pet.) (mem. op., not desig nated for publication) (dec lining to rema nd case for re- calc ulation of jail-time cre dit beca

use “[t] he time cre dit awa rded in the judgme nt has not been shown to be incorre ct, nor has appellant shown any rea son to rema nd this cause to the district court”)

. 5A trial court’s authority to order a d ef en d ant to repa

y the cost of court-a

ppointed leg al counsel is expressly conditioned on the court deter mini n g t h at the defe ndant has the financ ial resour ces and ability to pay . Tex. Code Crim. Proc. Ann. art. 26.05(g ) (West Supp. 2010). The defe ndant’s financ ial resour ces and ability to pay are ex p l i ci t criti cal elements under article 26.05(g ) t hat m ust be supported by rec ord evidence. Maye r v. Stat e , 309 S.W

. 3 d 552, 556 (Tex. Crim. App. 2010). Thus, we revie w a trial court’s order that the defe ndant pay court-a ppointed attorney ’s fee s for s u ff

i ci ency of the evidenc e. Id

. “Sufficie ncy of the evidenc e is measure d by viewing all of the rec ord evidenc e in the light most fa vorable to the verdic t.” Id

. at 557. When the evidenc e does not support the order to pay attorney ’s fee s, the proper reme dy is to delete the order

. See id

. The financ ial questionnaire filed by Fr ag el i n t h es e causes ref lects that he was unemploy ed, had no income, and owned no proper ty at the initiation of these proce eding s. Counsel

was subsequently appointed to repr esent Fr ag el during the proce eding s, which indicates that Fr ag el was determined by the di strict court to be indi g ent. “A defe ndant who is deter mined by the court to be indige nt is presumed to rema in indige nt for the rema inder of the proce eding s in the case unless

a materia l chang e in the defe ndant’s financ ial circ umstances occur s.” Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010). As the State conce des, there is no evidenc e in the rec ord tending to show that there ha s been a ny materia l chang e to Fr ag el’s financial circumstance s subsequent to him being found indige nt. I n fac t, counsel has been appointed to repr esent Fr ag el on appea l, which indicates that the district c ourt still considers him to be indigent.

We sustain Fra g el’s sec ond issue.

6We aff irm the district court’s judgme nt in cause number 652 9 9

. We modify the judgme nt in cause number 65300 to delete that portion of the judgme nt requiring Fr ag el to pay attorney ’s fe es of $945.00 a nd, as modified, af

firm.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose 03-10-00285- CR Affir med 03-10-00286- CR Modified and, a s Modified, Aff irmed Filed: Mar ch 31, 2011 Do Not Publish

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