Bardul Ajro v. the State of Texas

NO. 12-23-00127-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BARDUL AJRO, § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Bardul Ajro, appeals his conviction for the offense of theft. In two issues, he
argues that the trial court erred by failing to give him credit for his full amount of presentence
jail time. We affirm.
BACKGROUND
On November 21, 2020, Appellant committed the offense of theft of property valued at
less than $2,500.00, and subsequently posted a $10,000.00 bond to secure his release from the
Smith County Jail.1 He was indicted for the offense on September 9, 2021, and his bond
increased to $30,000.00. For reason of insufficient bond, on September 23, an arrest warrant
issued for Appellant (who was already serving a state jail sentence for an unrelated offense).
Appellant was served with the arrest warrant while in the custody of Collin County on April 1,
2022, and posted the increased bond on April 28, while in the custody of Rockwall County.
On March 29, 2023, Appellant pleaded “guilty” to the theft offense. The trial court
adjudicated Appellant “guilty,” but postponed sentencing based on defense counsel’s
representation that Appellant’s time credit as calculated by the court was incorrect. Before

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The record is unclear regarding exactly when Appellant was arrested and how long he was confined
before posting bond. Similarly, although Appellant’s defense counsel stated that all of Rockwall, Tarrant, Collin,
and Wise Counties had custody of Appellant during the relevant time period, it is not apparent exactly when he was
at each different facility or when he was moved from one county’s custody to another.
sentencing, Appellant filed a Motion for Credit on Sentence asking the trial court to recalculate
the amount of time credit. Thereafter, on April 10, the trial court held the sentencing hearing,
imposed a sentence of twenty-four months’ imprisonment, and credited Appellant for twenty-
eight days of jail time. This appeal followed.

TIME CREDIT
In two issues, Appellant contends that the trial court erred by (1) crediting his sentence
with only twenty-eight days of jail time and (2) entering same in the judgment of conviction. 2
Applicable Law
In all criminal cases, the trial court is required to give the defendant credit on his sentence
for presentence jail time—the time during which he was “in jail for the case . . . from the time of
his arrest and confinement until his sentence by the trial court[.]” TEX. CODE CRIM. PROC. ANN.
art. 42.03 § 2(a)(1) (West 2023). Based on Article 42.03’s plain language, “the credit at issue
relates not just to any time the defendant spent incarcerated before conviction.” Collins v. State,
318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. ref’d). “Rather, it is the time one is
incarcerated for the case in which he is ultimately tried and convicted.” Id. The statute’s
language does not authorize time credit in one case for confinement in another case. In re
Ralston, No. 12-22-00060-CR, 2022 WL 1121050, at *1 (Tex. App.—Tyler Apr. 14, 2022)
(orig. proceeding) (mem. op., not designated for publication). In other words, Article 42.03
“requires that the trial court credit a defendant’s sentence only for time spent in jail between
arrest and confinement and subsequent sentence on a particular charge.” Cooper v. State, No.
05-19-00229-CR, 2020 WL 3496365, at *3 (Tex. App.—Dallas June 29, 2020, no pet.) (mem.
op., not designated for publication) (emphasis in original) (citing Ex parte Crossley, 586 S.W.2d
545, 546 (Tex. Crim. App. 1979)).
When a person is confined (either physically or constructively) by another jurisdiction, he
is confined on a particular charge only if a detainer or “hold” is lodged against him by that
jurisdiction. Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim. App. 1989) (op. on reh’g). The

2
Typically, the correct avenue to seek additional presentence jail time credit is through a motion for
judgment nunc pro tunc, but when (as here) the alleged failure to award credit involves the exercise of judicial
reasoning, a judgment nunc pro tunc is not the proper remedy and an appellate court may address the merits of the
claim. See Benefield v. State, No. 02-14-00099-CR, 2015 WL 4606273, at *7 n.10 (Tex. App.—Fort Worth July
30, 2015, pet. ref’d) (mem. op., not designated for publication); Blackerby v. State, No. 03–11–00272–CR, 2012
WL 6097306, at *3 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op., not designated for publication).

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rationale for allowing a time credit under a detainer is that the hold results in a “change in the
basis for (a prisoner’s) confinement.” Id. at 115. If no such detainer is filed, the defendant must
show by some other evidence that the incarceration in another jurisdiction is for the same case.
Hannington v. State, 832 S.W.2d 355, 356 (Tex. Crim. App. 1992).
Analysis
Appellant appears to suggest that he should be credited for time he spent incarcerated
from September 23, 2021 (the date the Smith County arrest warrant issued), until April 28, 2022
(the date Appellant posted the increased bond), because the warrant constituted a “hold” from
Smith County for the theft offense. Appellant further submits that “if notice of the hold . . .
should have been provided [to another jurisdiction] but was not[,]” the lack of such notice may
have “caused [Appellant] to have a reduced time credit.” That is, he claims that because Smith
County did not promptly inform the relevant jurisdiction or jurisdictions of the alleged “hold,”
Appellant should receive additional time credit for the delay. The State does not dispute that
Appellant is entitled to credit for the time elapsed between when Appellant was served with the
Smith County warrant for the subject theft offense and when he posted the increased bond.
However, the State disagrees that Smith County’s issuance of an arrest warrant for the theft
offense began Appellant’s confinement for that offense.
Texas courts that have examined the issue have determined that issuance of an arrest
warrant related to one offense while the individual is incarcerated in another jurisdiction on a
second offense, without a detainer or hold, does not trigger the accumulation of jail time credit
for the first offense. 3 In Acosta v. State, the State moved to revoke a criminal defendant’s
community supervision for violating his probationary conditions in May of 2001. Acosta v.
State, No. 08-01-00509-CR, 2003 WL 22451496, at *1 (Tex. App.—El Paso Oct. 28, 2003, no
pet.) (mem. op., not designated for publication). The hearing on the State’s motion to revoke
occurred in December 2001, at which Acosta pleaded “true” to the violation and the trial court
sentenced him to two years’ imprisonment. Id. at *1. Acosta argued that he should receive time
credit from the date the arrest warrant issued until his sentencing, a period during which he was
incarcerated at a federal prison facility. Id. at *1-2. Acosta’s probation officer testified that a
capias warrant did issue in May 2001, but it was not received at the federal prison facility until

3
Although both cases discussed hereafter are unpublished, we may take guidance from unpublished
opinions to “aid in developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex.
App.—Amarillo 2003, pet. ref’d).

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October 2001, because the probation office had difficulty locating Acosta within the federal
prison system. Id. at *1. Our sister court reasoned that until the federal facility became aware of
the warrant, the adverse effects that accompany the filing of a detainer could not have occurred,
and the basis for Acosta’s confinement did not change. Id. at *2 (citing Bynum, 772 S.W.2d at
115) (hold from another jurisdiction may deny a prisoner privileges and opportunities such as
trusty status or early parole). Therefore, Texas did not obtain constructive custody of Acosta
until the date on which the federal facility received the warrant. Id. at *3.
Similarly, in Bertrand v. State, the appellant was arrested in Hardin County in March
2013 for unauthorized use of a vehicle, posted bail and was released from custody. Bertrand v.
State, No. 09-14-00374-CR, 2015 WL 2125266, at *1 (Tex. App.—Beaumont May 6, 2015, no
pet.) (mem. op., not designated for publication). He was arrested in Hardin County again in
October 2013 for public intoxication and a separate charge from Harris County and was
thereafter first released to the Harris County authorities, then released to the Jefferson County
authorities on other unrelated charges, and then turned over to the Texas Department of Criminal
Justice. Id. In December 2013, Bertrand was indicted for the unauthorized use of a vehicle
charge in Hardin County; a capias warrant issued and was served upon him on December 23, but
Hardin County never issued a hold or detainer to any other jurisdiction. Id. Hardin County
authorities finally took Bertrand into custody for the unauthorized use of a vehicle charge in June
2014. Id. The appellate court found that the time Bertrand spent in custody prior to June 2014
was all for unrelated offenses, and that he was not entitled to credit toward his sentence for any
of that time. Id. at *3-4. The court did not find relevant that the Hardin County authorities
“knew” he was already incarcerated, because without a detainer or hold, the adverse effects
described as a concern in Bynum could not have occurred. Id. at *3-4. Further, Bertrand did not
present any evidence that the time served prior to June 2014 was “directly attributable” to the
Hardin County vehicle charge. Id. at *4.
Appellant admits that Smith County did not place a hold or detainer on him related to this
case with any of Rockwall, Tarrant, Collin, or Wise Counties, and he offers no evidence that any
portion of his incarceration prior to April 28, 2022, was for his theft conviction in Smith County.
Appellant’s situation in this case is similar to those of the appellants in Acosta and Bertrand in
that the mere issuance of a warrant did not change the basis of his confinement in any other
jurisdiction. His incarceration for separate, unrelated offenses in other counties at the time the

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arrest warrant issued (and thereafter until he was sentenced for the theft offense in Smith
County) does not prove that those separate terms of incarceration were for this case, rather than
any of the other causes from the other counties. See TEX. CODE CRIM. PROC. ANN. art. 42.03 §
2(a)(1). The record before us provides no basis to credit Appellant with more than the twenty-
eight days of jail time credited to him in the judgment.
To the extent Appellant claims that the Smith County authorities had some duty to issue a
formal detainer (or otherwise inform the other relevant jurisdictions of the warrant’s issuance),
we disagree. Even presuming that Smith County authorities knew Appellant’s location at a
given time, their knowledge of Appellant’s incarceration in another county on a separate offense
does not “change the basis for his confinement, nor does it alter his status.” See Gonzalez v.
State, No. 08-10-00130-CR, 2011 WL 2348478, at *2 (Tex. App.—El Paso June 8, 2011, no
pet.) (mem. op., not designated for publication).
We conclude that the trial court did not err either by crediting Appellant’s sentence with
twenty-eight days of jail time, or by entering this amount of time credit in the judgment of
conviction. Accordingly, we overrule Appellant’s first and second issues.

DISPOSITION
Having overruled Appellant’s two issues, we affirm the judgment of the trial court.

BRIAN HOYLE
Justice

Opinion delivered November 8, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 8, 2023

NO. 12-23-00127-CR

BARDUL AJRO,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1569-21)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.