Luther Philmore Smith v. The State of Texas--Appeal from 276th District Court of Marion County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00015-CR

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LUTHER PHILMORE SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 276th Judicial District Court

Marion County, Texas

Trial Court No. F12,876

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

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.

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.

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).

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.

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 576 77 (explaining that Ex 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, 15(h)(2) (Vernon Supp. 2004).

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. 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. I, 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.

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.

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.

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.

Donald R. Ross

Justice

Date Submitted: May 7, 2004

Date Decided: June 10, 2004

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