IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.74,864

EX PARTE ANDREW MICHAEL MABRY, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM DENTON COUNTY

Keller, P.J., filed a concurring and dissenting opinion in which HERVEY, J., joined.

CONCURRING AND DISSENTING OPINION

I concur in the Court's opinion regarding the issue of applicant's eligibility for mandatory supervision, and I agree that applicant is entitled to some "street time" credit on his sentence, but, for the reasons given in my dissent in Ex parte Spann, ⁽¹⁾ I disagree as to the amount of time credit. This opinion is just the first indication of the enormous impact of the Court's erroneous interpretation of the time credit statute in Spann. The Spann opinion will affect every mandatory-supervision eligible prisoner who is entitled to street time credit. We are just now seeing the tip of the iceberg, as more and more prisoners will receive far more time credit than the Legislature intended to give them.

In this case, for example, applicant receives over two years more time credit than he should. Instead of awarding applicant the 911 days that the Legislature intended to give him, the Court, under Spann, awards him the full 1707 days spent on the street - a difference of 796 days. ⁽²⁾

I respectfully dissent to the amount of time awarded.

KELLER, Presiding Judge

Date filed: June 9, 2004

Publish

1. 2004 Tex. Crim. App. LEXIS 666 at *16-*44 (April 21, 2004)(Keller, P.J., dissenting).

2. Applicant should earn two days for every day served on the street past the midpoint. ⁽³⁾

3. Id. at *34. ----- " " " "