











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00015-CR
______________________________


LUTHER PHILMORE SMITH, Appellant
Â 
V.
Â 
THE STATE OF TEXAS, Appellee


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

On Appeal from the 276th Judicial District Court
Marion County, Texas
Trial Court No. F12,876


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 



Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross


MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â On February 11, 2002, Luther Philmore Smith pled guilty to unauthorized use of a
motor vehicle.
  Pursuant to a plea agreement, the trial court found the evidence
substantiated Smith's guilt, but deferred a finding of guilt for two years and placed him on
community supervision.  The trial court later adjudicated Smith's guilt after he admitted
having violated several conditions of his supervision, but continued Smith on community
supervision under additional conditions.  
Â Â Â Â Â Â Â Â Â Â On January 8, 2004, Smith pled "true" to violating four conditions of his adjudicated
community supervision and pled "not true" to violating a fifth condition.  After hearing
evidence and arguments on the State's motion to revoke, the trial court found Smith
violated all five conditions and sentenced him to fourteen months in a state jail facility.  In
pronouncing sentence, the trial court specifically denied Smith credit for any of the time he
had previously spent in jail in connection with this case.  On appeal, Smith contends the
trial court erred by failing to credit him with any of the time he spent in jail before the
revocation.  
Â Â Â Â Â Â Â Â Â Â On appeal, Smith claims there are four periods of incarceration for which he should
receive credit against his sentence:  (1) the time he spent in jail before being initially placed
on community supervision; (2) the time he spent in jail in connection with the State's motion
to adjudicate guilt (Smith's guilt was adjudicated November 15, 2002);
 (3) the time Smith
spent in jail pending the State's first motion to revoke (filed January 15, 2003, but
presumably later dismissed pursuant to an agreed modification filed July 28, 2003); and
(4) the time spent in jail pending the State's second motion to revoke (filed December 5,
2003).  
Â Â Â Â Â Â Â Â Â Â The Texas Court of Criminal Appeals addressed a factually similar case in Ex parte
Bates, 978 S.W.2d 575 (Tex. Crim. App. 1998).  Bates was convicted of delivering less
than five pounds of marihuana and assessed punishment at confinement in a state jail
facility for a period of two years, probated for five years.  Id. at 576.  When Bates later pled
"true" to violating his community supervision, the trial court revoked his community
supervision and assessed Bates' punishment at confinement for eighteen months, with no
credit being given for any time Bates spent in jail before the guilty plea or before having his
community supervision revoked.  Id. 
Â Â Â Â Â Â Â Â Â Â On appeal to the Texas Court of Criminal Appeals, that court first addressed
whether Bates was entitled to credit for his pretrial jail time.  Based on three key factors,
the court concluded the trial court was not required to give Bates credit for the period of
time he spent in jail awaiting trial:  (1) Article 42.12, Section 15(h)(2) of the Texas Code of
Criminal Procedure grants a trial court discretion whether to credit a defendant's sentence
with any pretrial jail time; (2) the only exception to the exercise of that discretion arises
when the trial court assesses the maximum statutory punishment, which Bates had not
received; and (3) Bates "would not be required to serve more than the maximum
permissible term even if the pretrial jail time were added to the term assessed."  Id. at
576â77 (explaining that ExÂ parte Harris, 946 S.W.2d 79 (Tex. Crim. App. 1997), did not
apply to Bates' case); see Tex. Code Crim. Proc. Ann. art. 42.12, Â§ 15(h)(2) (Vernon
Supp. 2004).
Â Â Â Â Â Â Â Â Â Â The Bates court next addressed whether Bates should have been given credit for
the time he was confined pending the motion to revoke his community supervision.  Bates,
978 S.W.2d at 577.  After analyzing the constitutionality of Article 42.12, Section 15(h)(2),
as well as our opinion in Jimerson v. State, 957 S.W.2d 875 (Tex. App.âTexarkana 1997,
no pet.), the Bates court concluded that denying credit for periods of confinement pending
revocation of community supervision would violate the due course of law provision of the
Texas Constitution.  Id. at 578 (referencing Tex. Const. art.Â I, Â§ 19).  Accordingly, the court
found Bates should have been given credit for the time he spent in jail between the time
of his arrest on the revocation warrant and the trial court's decision to revoke his
community supervision.  Id.
Â Â Â Â Â Â Â Â Â Â In the case now before us, there is no evidence regarding the total number of days
Smith spent confined.  Further, no attempt was made before the trial court to set forth the
specific number of days Smith spent in confinement before trial or while awaiting a hearing
on the State's motions to adjudicate guilt or revoke community supervision.  
Â Â Â Â Â Â Â Â Â Â The trial court declined to give Smith credit for the time he spent in jail awaiting trial. 
Under the reasoning in Bates, we cannot say the trial court abused its discretion in this
case.  There is no statutory or constitutional requirement that Smith be given pretrial credit
in this case, because he received less than the maximum sentence and there is no
indication that he would be required to serve more than the maximum permissible term if
his pretrial jail time were added to his sentence.  Cf. id. at 577.  Smith is, however, entitled
to be credited for any time he spent confined in jail awaiting a hearing on the State's
motions to adjudicate guilt or revoke community supervision.  See id. at 578.  Accordingly,
the trial court erred by not granting credit for these time periods.
Â Â Â Â Â Â Â Â Â Â From the record before us, we cannot determine the exact dates of Smith's various
incarcerations in this case.  We, therefore, affirm the trial court's judgment of revocation,
but remand the case to the trial court with instructions to calculate and credit Smith for the
time spent in jail pending the State's motion to adjudicate guilt and pending both of the
State's motions to revoke Smith's community supervision.
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Donald R. Ross
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â May 7, 2004
Date Decided:Â Â Â Â Â Â Â Â Â June 10, 2004

Do Not Publish

venile was for clarification
and was not improper.  Likewise, the case of In re S.J., 940 S.W.2d 332 (Tex. App.--San Antonio
1997, no pet.), cited by Guin, contains questions of the court seeking clarification as to the testimony
regarding the time the incident occurred, and such questioning was not improper.  Id. at 338.
	As we view this entire proceeding in context, we do not believe that the judge became so
entangled in questioning Guin that he became an advocate and could not make an objective finding
in the case.   We find that the judge's questions do not constitute fundamental error and are not so
egregious that Guin was denied a fair trial.
	This point of error is overruled.
3. Disproportionate Sentencing
	Guin contends his sentence is excessive, which we understand to contend that the sentence
is unconstitutionally disproportionate under the Eighth Amendment to the United States Constitution
which prohibits the infliction of cruel and unusual punishment to persons convicted of a crime.  See
U.S. Const. amend. VIII.
	Guin did not object to the sentence on the ground that it was disproportionate to the crime,
or on any other ground either at the time it was imposed or by filing a motion for new trial.  To
preserve a complaint for appellate review, an appellant must have presented to the trial court a timely
request, objection, or motion stating the specific grounds for the ruling desired.  Tex. R. App. P.
33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996).  An objection must
be made in a timely manner, and a motion for new trial is an appropriate way to preserve for review
a claim for disproportionate sentencing.  Delacruz v. State, 167 S.W.3d 904, 905 (Tex.
App.--Texarkana 2005, no pet.).  Guin did not file a motion for new trial.  No issue is presented for
our review. 
	Even if the contention had been preserved for review, there is no evidence in the record
comparing the sentences imposed on persons in Texas with sentences imposed against defendants
in other jurisdictions who committed a similar offense.  Alberto v. State, 100 S.W.3d 528, 529 (Tex.
App.--Texarkana 2003, no pet.); see Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.--Texarkana
2002, pet. ref'd).   
	We overrule this point of error.


4. Ineffective Assistance of Counsel
	Guin alleges that he received ineffective assistance of counsel because trial counsel "should
have submitted the issue of punishment to a jury as opposed to the trial court."  The standard of
review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v.
Washington, 466 U.S. 668 (1984).   Appellant must show that (1) counsel's performance was so
deficient that he or she was not functioning as acceptable counsel under the Sixth Amendment, and
(2) but for counsel's error, the result of the proceedings would have been different.  Id. at 687-88;
see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).
	 Guin appears to suggest that counsel was unaware of the change in the law effective
September 1, 2005, concerning state-jail felony offenses, that authorized the jury to recommend to
the court that the sentence be suspended and that the defendant be placed on community supervision. 
Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d) (Vernon Supp. 2006).  However, since there was no
motion for new trial filed and no evidence developed on this issue, the record is silent as to whether
counsel knew of this change in the law and whether that would have precipitated a different trial
strategy.  The record does not affirmatively support Guin's claim of ineffective assistance of counsel. 
See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984).  
	The choice of whether to submit the punishment issue to the court or jury is one of trial
strategy, and we will not second-guess counsel's trial strategy.  There is a strong presumption that
counsel's performance fell within the wide range of reasonable professional assistance.  Strickland,
466 U.S. at 690.  To prevail on an ineffective assistance of counsel claim, appellant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.  Id.  Assertions of ineffective assistance of counsel must be firmly founded in the record. 
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).  In the absence of a record reference
concerning counsel's reasoning, we must generally presume that appellant's trial counsel had a
plausible reason for his or her actions.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999).  Guin's fourth point of error is overruled.
	We affirm the judgment of the trial court.  


							Jack Carter
							Justice

Date Submitted:	August 17, 2006
Date Decided:		October 25, 2006

Publish
1. Due to apparent misnumbering by the Legislature, there are two sections numbered 14 in
Article 42.12 of the Texas Code of Criminal Procedure.  The Section 14 we cite in this opinion is
titled "Substance Abuse Felony Program."
