Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

Pending before the court is a motion for rehearing filed by Phillip Cooper (appellant). Attached to same is an exhibit titled "Stipulation on Time Credit and Waiver of Oral Argument" signed by both appellant's counsel and counsel for the State. Through it, the parties stipulate that "[a]ppellant is entitled to an additional 60 days of [jail] credit . . . ." Furthermore, we are asked to modify the trial court's judgment to credit appellant's sentence with that time.

Statute directs the trial court to "give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentenc[ing] . . . ." Tex. Code Crim. Proc. Ann. art. 42.03, §2(a) (Vernon Supp. 2003). Since both the State and appellant stipulate that appellant is entitled to an additional 60 days credit against his sentence and that credit was not awarded by the trial court, we grant the motion for rehearing and modify the trial court's judgment accordingly.

The judgment of the trial court is modified to reflect that appellant is entitled to 231 days credit against the sentence imposed by the trial court, that sentence being two years imprisonment in a state jail facility. ⁽²⁾ As modified, the judgment is again affirmed.

Brian Quinn

Justice

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1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. The trial court originally ordered that appellant be credited with 171 days. That period plus 60 days equals 231 days.

  Alfred William Ward (appellant) appeals from a final judgment revoking his probation. Through a single issue, he contends that the trial court abused its discretion in purportedly reinstating, sua sponte, the motion to revoke probation that it had previously dismissed per the State’s request. Not only did the court exceed its authority in reinstating the matter, but its doing so effectively denied him due process since he lacked notice of the allegations in the reinstated motion, he concludes. We affirm.

          Appellant was charged with and pled guilty to burglary of a habitation with intent to commit assault. Per a plea agreement, he was sentenced to ten years in prison. The sentence was suspended, and the trial court placed him on probation for seven years. Subsequently, the State sought to revoke that probation. It then moved to dismiss its motion, and the trial court granted that request. Later the same day, however, the trial court withdrew its dismissal order and reinstated the State’s motion to revoke. At the revocation hearing, appellant pled true to all of the allegations in the motion. Thereafter, the trial court revoked appellant’s probation and sentenced him to five years in prison.

          Appellant now contends that the trial court erred in reinstating the motion to revoke and withdrawing its prior order dismissing the State’s motion. We note that the State did not object to the trial court’s decision to reinstate the motion. Nor did the allegations in the reinstated motion change from those initially averred. More importantly, the appellant never objected (of record) to the order reinstating the motion, to the prosecution of the motion once it was reinstated, or to the revocation hearing. Nor did appellant claim surprise or request a continuance at the hearing; indeed, he even waived reading of the motion to revoke.

          In sum, none of the complaints before us have been preserved for review. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.–Beaumont 1999, no pet.). Accordingly, we overrule his sole issue.

          The judgment revoking probation is affirmed.

                                                                                      Per Curiam

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