IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 73,797

EX PARTE MARK LAURENCE BUSBY, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CRANE COUNTY


Womack, J., filed a dissenting opinion, in which Keller, P.J., and Hervey, J., joined.

The applicant wants credit against his sentence for a period of time in which he was released from prison by a grant of probation that the trial court had no jurisdiction to give. This issue first came before the Court in 1981. We held that such a defendant was not entitled to a credit.

The appellant was sentenced on March 27, 1978, and he went to the Department of Corrections on the same day. Therefore, "the execution of the sentence actually beg(an)" no later than that day. Thereafter the appellant applied for "shock probation." The court granted "shock probation" on August 7, 1978, or 133 days after the execution of the sentence actually began. This it was without jurisdiction to do, for V.A.C.C.P. Article 42.12, Section 3e continue[d] the jurisdiction of the trial court to grant "shock probation" for only 120 days after the execution of the sentence actually begins.

The appellant claims that he is entitled to "flat time" credit for the time he was released on probation. He makes analogy to the cases in which inmates were released from prison erroneously, through no fault of their own. Those prisoners were not released at their request. The closer analogy is to Ex parte Massie, 161 Tex. Crim. 568, 278 S.W.2d 851 (1955). Massie applied for probation, but he was sentenced to 5 years' confinement. After the judgment was affirmed by this court, the trial court placed Massie on probation, which it had no authority to do. Massie claimed that he was entitled to credit for the time he was on probation. This court disagreed, saying that the void order was due, at least in part, to Massie's own actions.



Relator applied for probation when he pleaded guilty. He will not now be heard to say that by no conduct on his part did he escape confinement during the period he was at large under the void order.



278 S.W.2d at 853. This was an application of the rule of Ex parte Moneyhun, 161 Tex. Crim. 19, 274 S.W.2d 546, 547 (1955): "When appellant's attorney requested his release he became the moving factor and cannot now take advantage of a void order (of conditional release) on the part of the County Judge." Accord, Ex parte Williams, 164 Tex. Crim. 568, 301 S.W.2d 84 (1957). The appellant is not entitled to credit for the time he spent on the "shock probation" which he had requested; he is entitled only to credit for the time he actually was incarcerated. (1)



In 1985, a divided court declined to follow our 1981 decision for the following reason: "We believe that the foregoing rules penalize a defendant for asserting his statutory right to probation. A defendant should not be penalized if the relief he requests is proper and only through the improper actions of the trial court does the order become void." (2) Today the Court accepts this reason, saying, "When an applicant makes a proper and timely request for shock probation, but the trial court's order is untimely and therefore void, the applicant should not be penalized for asserting his statutory rights." (3)

The principle that a person should not be penalized for asserting a right is, no doubt, a good one. But it has nothing to do with this case, since the applicant's assertion of a right led to a benefit, not a penalty.

The first question is, what right did the applicant assert? The Court was obviously wrong in 1985 when it said that denying a time credit to the defendant would "penalize a defendant for asserting his statutory right to probation," (4) since there is no statutory right to probation, and with particular relevance to today's case, there is no statutory right to release on shock probation. There is not even a statutory right to a hearing of a request for shock probation. (5) Today the Court avoids the mistake it made in 1985 by failing to specify any right; it says only that if we deny the time credit the applicant will "be penalized for asserting his statutory rights." (6) The only possible right is the right to request shock probation.

Now what was the penalty for requesting shock probation? The request was granted and the applicant was released on shock probation. Surely this was not a penalty. If the applicant thought it was a penalty, he would not have asked for it. He did not complain about this "penalty" when he was released or at any time during the period of his release on probation from August 30, 1988 to September 10, 1992. During this time, the record shows, he was convicted of public intoxication and driving while intoxicated. He smoked marihuana, used cocaine, was fired from one job for stealing the same kind of property that he was convicted of stealing in this case, and was fired from another job for refusing to work. He was not suffering a penalty.

He was penalized by being put back in prison when his unauthorized probation was revoked. But that penalty was not a result of his requesting probation; it was a result of his violating the conditions of probation. This cannot be the penalty to which the Court refers, nor does the applicant complain of the revocation, for the very good reason that it is nothing more than the exact penalty that was assessed by the district court when the applicant pleaded guilty and agreed to the sentence.

The "penalty" of which the applicant complains is that he has not gotten credit against his sentence for a period of time when he was not serving the sentence. This is no penalty. In my view, giving a defendant credit against a sentence for time in which he was not serving the sentence is contrary to law and reason. A defendant may not get credit for the time during which the execution of the sentence was suspended. (7) The same is true for the time a prisoner was released on parole. (8)

The applicant claims that he should serve less time on his sentence, because he got a vacation from it, than a prisoner who has gotten no vacation will serve. What law justifies that result? By what reason could the denial of that result be deemed a penalty? If the Court has another penalty in mind, what is it?

The applicant would be penalized if the district court granted him another probation and did not give him credit on the period of probation for the time he was erroneously on probation, but that time should have no more effect on his sentence than any time on probation has on any sentence. If a defendant is sentenced to ten years in prison, probated for a period of five years, and the court revokes probation on the last day of the fifth year, the defendant's sentence is still ten years.

The idea that a prisoner should have his sentence decreased because he got an erroneous vacation from prison should be met with hearty laughter, not the acceptance the Court gives it today. I respectfully dissent.

En banc.

Delivered March 7, 2001.

Publish.

1. Adams v. State, 610 S.W.2d 780, 781-82 (Tex. Cr. App. 1981) (citations and footnotes omitted); accord Tamez v. State, 620 S.W.2d 586, 589 (Tex. Cr. App. 1981).

2. Stasey v. State, 683 S.W.2d 705, 708 (Tex. Cr. App. 1985).

3. Ante at 5.

4. Stasey, 683 S.W.2d at 708.

5. See Tex. Code Crim. Proc. art.42.12, 6(c).

6. Ante at 5.

7. "No part of the time that the defendant is on community supervision shall be considered as any part of the time that he shall be sentenced to serve." Tex. Code Crim. Proc. art 42.12, 23(b).

8. Ex parte Adams, 941 S.W.2d 136 (Tex. Cr. App. 1997).