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Click here for the full text of this decision FACTS:James Michael Guin was charged with committing the offense of graffiti under Texas Penal Code �28.08. Specifically, it was alleged that he intentionally or knowingly made racist markings with aerosol paint on property of the Gladewater Independent School District (Gladewater ISD) causing a loss of less than $20,000. As alleged, the offense was classified as a state-jail felony offense. On Sept. 29, 2005, after he was properly admonished by the trial court, Guin entered a written waiver of jury trial and consent to stipulation of testimony and pled guilty to the offense. Guin filed an application for community supervision alleging that he had never been convicted of a felony in this or any other state. There was no negotiated plea agreement in connection with the plea of guilty. Guin was then questioned by his attorney concerning his remorse in committing the offense, his application for community supervision and some of the terms and conditions of community supervision. Guin also testified that at the time of the offense, a person named Joe Fiquette participated in painting the graffiti on the walls. The state then cross-examined Guin concerning the incident and asked, “[W]hat in the world possessed you to go write these things on the school?” In response, Guin stated, “I don’t know, I had a couple drinks and a shot.” Guin further responded that he did not write “white pride” on the wall and that Fiquette wrote that and some other vulgar language. The state questioned Guin concerning his actions in smoking marijuana after he was released on bond, which Guin conceded to be true. The state then asked, “[S]o where are you getting this marijuana?” Guin answered that he obtained it from some people with whom he was “hanging around.” The state then questioned Guin concerning his failure to appear when his case was originally set. Guin answered that he did not realize he had court at that time. Guin’s attorney conducted redirect examination explaining that, if placed on community supervision, Guin would be prohibited from smoking marijuana and drinking intoxicating beverages. Guin stated that he would abide by those conditions of community supervision. The trial court asked a series of questions concerning whether Guin was a member of any kind of gang or practiced racism and inquired about the tattoos on his body. The court also asked Guin, “[W]here you been getting your liquor?” Guin responded that he had been getting it from John Brown. The court further asked him if he was a member of the Aryan Nations Group and also where he was obtaining marijuana. Guin answered he obtained it from several places without giving the trial court specific names of persons. The trial court expressed to Guin that it felt he was being evasive in his answers which was not helping him in “seeking mercy,” and the trial court explained it would give Guin an opportunity to change any answers he had given. Guin replied, “Sir, I am telling the truth.” The trial court took the punishment issue under advisement and on a later date sentenced Guin to 15 months’ confinement in a state-jail facility. Guin raised four points of error on appeal. He argued that the indictment was insufficient to confer jurisdiction in the trial court; the trial court erred by improperly interrogating Guin; the punishment assessed was unconstitutionally disproportionate to the crime; and Guin received ineffective assistance of counsel. HOLDING:Affirmed. Overruling appellant’s first point of error, the court held that the allegation that the owner of the property involved was the Gladewater ISD was sufficient to allege the element of the offense related to the owner of the defaced property. Viewing the entire proceeding in context and noting the trial court’s role in determining whether community supervision instead of jail time was warranted, the court did not find that the trial court became so entangled in questioning Guin that he became an advocate and could not make an objective finding in the case. The court found that the judge’s questions did not constitute fundamental error and are not so egregious that Guin was denied a fair trial. Because Guin did not preserve error � by objecting during trial or in a motion for a new trial � to the sentence on the ground that it was disproportionate to the crime, the court stated that the point was waived. Guin alleged 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 choice of whether to submit the punishment issue to the court or jury is one of trial strategy, the court stating in declining to second-guess the defense counsel’s trial strategy. In the absence of a record reference concerning counsel’s reasoning, the court presumed that appellant’s trial counsel had a plausible reason for his or her actions. OPINION:Carter, J.; Morriss, C.J., and Ross and Carter, J.J.

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