COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RICKY JOE RUTLEDGE, JR., §
No. 08-15-00111-CR
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Appellant, Appeal from the
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V. 18th District Court
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THE STATE OF TEXAS, of Johnson County, Texas
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Appellee. (TC# F48548)
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OPINION
Ricky Joe Rutledge, Jr. appeals his conviction of possession of less than one gram of
methamphetamine. Appellant entered a plea of guilty before the jury, and the trial court
conducted a unitary proceeding. TEX.CODE CRIM.PROC.ANN. art. 26.14 (West 2009); see State v.
Aguilera, 165 S.W.3d 695, 698 n.6 (Tex.Crim.App. 2005); Frame v. State, 615 S.W.2d 766, 767
(Tex.Crim.App. 1981). The jury found Appellant guilty and assessed his punishment at a fine of
$3,500 and confinement in the state jail for two years. We affirm.
PUNISHMENT
In his sole issue, Appellant argues that the trial court erred by failing to give him credit
for jail time served. He additionally argues that the maximum sentence assessed by the jury
constitutes cruel and unusual punishment in violation of the Eighth Amendment and Article I,
Section 13 of the Texas Constitution.
Cruel and Unusual Punishment
As a prerequisite to presenting a complaint for appellate review, Appellant must present
to the trial court a timely request, objection, or motion stating the specific grounds for the desired
ruling. TEX.R.APP.P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.
1996). Constitutional rights, including the right to be free from cruel and unusual punishment,
may be waived by the failure to object. Rhoades, 934 S.W.2d at 120; Curry v. State, 910 S.W.2d
490, 496 (Tex.Crim.App. 1995). Appellant did not raise this complaint about his sentence at the
time it was imposed or in his motion for new trial. Consequently, Appellant has waived his
complaint that the sentence amounts to cruel and unusual punishment.
Jail Credit
Appellant next contends that the trial court did not have discretion to refuse to give him
credit for 46 days served in the Johnson County Jail. Article 42.03, section 2(a) of the Code of
Criminal Procedure provides that:
In all criminal cases the judge of the court in which the defendant is convicted
shall give the defendant credit on the defendant’s sentence for the time that the
defendant has spent:
(1) in jail for the case, including confinement served as described by Article
46B.009 and excluding confinement served as a condition of community
supervision, 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 Supp. 2016). Consequently, the trial
court is generally required to grant the defendant pre-sentence jail time when sentence is
pronounced. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex.Crim.App. 2004).
Another statute must be considered in our analysis of this issue. Article 42.12,
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§ 15(h)(2)(A) provides that:
(2) A judge:
(A) may credit against any time a defendant is required to serve in a state jail
felony facility time served by the defendant in a county jail from the time
of the defendant’s arrest and confinement until sentencing by the trial
court. [Emphasis added].
TEX.CODE CRIM.PROC.ANN. art. 42.12, § 15(h)(2)(A)(West Supp. 2016). Article 42.12
controls over Article 42.03 because a specific statute controls a general statute. Hoitt v.
State, 30 S.W.3d 670, 676 (Tex.App.--Texarkana 2000, pet. ref’d). Thus, the trial court
has discretion to give the defendant credit for jail time served. The trial court’s discretion
is limited in cases where an indigent defendant is unable to post bond and the failure to
grant time credit would cause a defendant to be incarcerated for longer than the
maximum punishment provided for the offense. See Ex parte Harris, 946 S.W.2d 79, 80
(Tex.Crim.App. 1997); Hoitt, 30 S.W.3d at 676. There is no evidence in the record that
Appellant was indigent at the time of his arrest and subsequent confinement in jail. To
the contrary, Appellant testified during the punishment phase that he made $60,000 the
previous year. Consequently, the trial court had discretion to not give Appellant credit
for the 46 days he had served in jail. We overrule Appellant’s sole issue and affirm the
judgment of the trial court.
September 28, 2016
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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