                                  NO. 07-08-00281-CR

                              IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                    APRIL 19, 2010


                              BRANDON LEWIS, APPELLANT

                                           v.

                            THE STATE OF TEXAS, APPELLEE


               FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                     NO. 4270; HONORABLE FELIX KLEIN, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant Brandon Lewis appeals from the trial court=s judgment revoking his

community supervision and sentencing him to two years in the State Jail Division of the

Texas Department of Criminal Justice. Through two issues, appellant contends the trial

court reversibly erred. We will affirm the court’s judgment but remand for calculation of

credit for time served.
                                        Background


       In May 2007, pursuant to a plea agreement with the State, appellant plead guilty

to the offense of criminal nonsupport. 1 The court placed him on community supervision

for a period of five years. Thereafter, in August 2007, the State filed a motion to revoke

appellant=s community supervision, alleging: (1) appellant failed to report as required;

(2) failed to pay his court costs, restitution and probation fees for July 2007; (3) failed to

support his dependents as required for July 2007; and (4) failed to complete an affidavit

explaining why he could not pay the requisite monthly payments. In May 2008, the

court heard the State=s motion. Appellant plead true to each of the State=s allegations.


       The State presented the testimony of appellant=s community supervision officer.

She testified that appellant had made only one payment since he had been on

probation. The State also presented the testimony of appellant=s son=s mother, who

testified to appellant’s failure to pay child support. She further testified appellant had

been held in contempt on previous occasions but still appellant had not paid as ordered.

The witness opined that continued probation was not appropriate for appellant. She

stated she wanted him to go to jail for Athe maximum@ because Ait would teach him a

lesson, because he=s been given probation twice and it hasn=t done any good.@


      Appellant testified on his own behalf, seeking to explain the reasons for his failure

to pay. On cross-examination, appellant acknowledged he had not made the required

payments and did not take his probation seriously.         Appellant=s sister also testified,


       1
           See Tex. Penal Code Ann. ' 25.05 (Vernon 2001).

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stating she was willing to take appellant in and work with him to help him get a job and

meet his responsibilities to his son.


       Following this evidence and closing arguments by each side, the trial court

revoked appellant=s community supervision and sentenced him to two years

confinement. This appeal followed.


                                          Analysis


Credit for Time Served


        In appellant=s first issue, he argues the trial court abused its discretion by failing

to apply credit to his sentence for the time he spent in the county jail from his arrest to

the revocation hearing and sentencing. He cites Jimerson v. State, 957 S.W.2d 875

(Tex.App.BTexarkana 1997, no pet.), which found Article 42.12, section 15(h)(2)

contrary to the Texas Constitution to the extent it gave a trial court discretion to grant or

deny a defendant sentenced to a state jail facility credit for time he was confined

pending a hearing on a motion to revoke community supervision. Id. at 877. The State

recognizes that, under Ex Parte Bates, 978 S.W.2d 575, 577-78 (Tex.Crim.App. 1998),

which adopted the reasoning of Jimerson, appellant should receive credit for time

served while awaiting his revocation hearing. See also Dunn v. State, No. 07-98-0126-

CR, 1998 WL 442450 (Tex.App.BAmarillo Aug. 5, 1998, no pet.) (recognizing same). 2




        2
         The State’s only argument in response to appellant’s first issue asserts the
reasoning behind Bates and Jimerson is flawed. The State argues a position similar to
that adopted by Judge Keller’s dissent in Bates, 978 S.W.2d at 578-79. We are not
privileged to ignore the applicable holdings of the Court of Criminal Appeals.
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      There is no dispute that appellant spent a certain amount of time in jail between

his arrest in early 2008 and the hearing on the State’s revocation motion. The appellate

record, however, does not contain the information necessary to modify the judgment to

reflect credit for appellant’s prehearing jail time. Accordingly, we will remand the case

to the trial court with instructions to reform the judgment to reflect credit for such time

served. See Joseph v. State, 3 S.W.3d 627, 643-44 (Tex.App.BHouston [14th Dist.]

1999, no pet.) (making similar remand).


Withdrawal of Plea


      In appellant=s second issue, he contends the trial court erred in not permitting him

to withdraw his plea of “true” after the parties disagreed as to whether a plea agreement

had been reached. We find no error.


      The record reflects that at the community supervision revocation hearing, the

prosecutor made the statement that A[b]ased on [appellant=s] pleas of true, the State

would ask that the allegations be found true.        We don=t have an agreement for

disposition in this case.@ However, during the State=s closing argument, the prosecutor

stated, AI=m going to ask that [appellant] be revoked.       He be assessed two years

confinement in the Texas Department of Criminal Justice State Jail Division. . . he

deserves more than two years if we can give him, since, that=s all we can give him,

that=s what I’m asking you to give him.@


      Appellant=s counsel then stated, AI was misled by the prosecutor=s office. They

initially told me that they did not have a recommendation and weren=t going to give a


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recommendation today. He comes in here and then he asks for the maximum. I think

that is a violation of our contract with the probation office.@


       Thereafter, the prosecutor again informed the court that there was no agreement

made for a sentencing recommendation. Appellant=s counsel again disagreed, saying

the prosecutor had said he was not going to make a recommendation. The court then

intervened and asked appellant if he wished to continue on his plea of true, advising

appellant that, if he felt he had been induced by the State to plead true, he had the

opportunity to return and have another contested hearing.             Appellant indicated he

wished to proceed with his plea of true to the State=s allegations.


       On appeal, appellant argues the State assured him it would not make a

recommendation regarding his sentence. He then contends that the State’s violation of

its agreement rendered his plea of true to the allegations involuntary.           The State

disagrees, arguing there was no agreement and no breach of duty. Further, the State

points out, the trial court asked appellant if he wanted another contested hearing or

wanted to proceed on his pleas of true.


       Appellant relies on Bass v. State, 576 S.W.2d 400 (Tex.Crim.App. 1979), in

which the court sustained the defendant’s argument he should be allowed to withdraw

his guilty plea because of the prosecutor’s violation of a plea bargain agreement. Id. at

400, 402. We agree with the State that Bass is distinguishable. In Bass, the court

found the record reflected Awithout conflict that there was an agreement made by the

prosecutor not to make a recommendation as to punishment.” Id. at 401. The trial court

here was confronted with direct conflict between appellant’s assertion the prosecutor
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had agreed not to make a sentencing recommendation and the prosecutor’s denial that

such an agreement existed. More significantly, the trial court here expressly offered

appellant the relief sought in Bass, an opportunity to withdraw his pleas of true and

“come back and have a contested hearing.”          When the trial court asked whether

appellant wished to “continue on your plea of true at this time,” and appellant’s counsel

admonished appellant, “It’s up to you,” appellant chose to maintain his plea of true.


       Further, even after sentencing, when asked if there was any reason sentence

should not be pronounced, appellant responded there was not. We overrule appellant=s

second issue.


       We affirm the trial court=s judgment revoking appellant=s community supervision

and imposing sentence.       However, we remand the case to the trial court with

instructions to reform the judgment to reflect any credit for time served in accordance

with this opinion.




                                                              James T. Campbell
                                                                   Justice




Do not publish.




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