Opinion
No. 10-04-00368-CR
Opinion delivered and filed December 14, 2005. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 27777CR. Affirmed as reformed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA. (Chief Justice Gray dissenting).
MEMORANDUM OPINION
Gary Shane Kinkaid pled guilty to the felony offense of aggravated assault with a deadly weapon. He received a deferred sentence and was placed on community supervision for a period of five years. The trial court ultimately revoked Kinkaid's community supervision, made a deadly weapon finding, and sentenced him to twenty years in prison. Kinkaid appeals his revocation. We affirm as reformed. In his sole issue, Kinkaid contends that the trial court erred by entering an affirmative deadly weapon finding in the order revoking Kinkaid's community supervision. The trial court had not entered a deadly weapon finding in its earlier judgment; in fact, it entered "none." The Code of Criminal Procedure provides that the trial court "shall" enter an affirmative deadly weapon finding in the judgment of the court. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2005). When a trial court forgoes an affirmative finding regarding a deadly weapon at the time of the judgment and suspends the sentence, it has no authority to enter such finding in connection with the later revocation of community supervision. Rivers v. State, 99 S.W.3d 659, 660 (Tex.App.-Waco 2003, no pet.). The trial court had no authority to enter the deadly weapon finding in the order revoking Kinkaid's community supervision. Kinkaid's sole issue is sustained. The revocation order is reformed to delete the deadly weapon finding. As reformed, the trial court's order of revocation is affirmed.
DISSENTING OPINION
I dissent. The majority fails to distinguish deferred-adjudication community supervision from regular community supervision or imprisonment. See Saffell v. State, Nos. 05-03-01549-CR 05-03-01550-CR, 2005 WL 289349, at *3 (Tex.App.-Dallas Feb. 8, 2005, no pet.) (not designated for publication) (mem. op.) (distinguishing imprisonment from deferred-adjudication community supervision); cf. Rivers v. State, 99 S.W.3d 659 (Tex.App.-Waco 2003, no pet.) (regular community supervision). "The purpose of a trial court's making an affirmative finding of a deadly weapon is to aid in calculating a prisoner's parole-eligibility date." Johnson v. State, No. 05-00-00464-CR, 2002 WL 1788002, at *3 (Tex.App.-Dallas Aug. 5, 2002, no pet.) (not designated for publication); accord Sampson v. State, 983 S.W.2d 842, 843 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). "An affirmative finding of a deadly weapon is not applicable to an order of deferred adjudication because parole eligibility applies to persons who are imprisoned." Sampson at 843 (citing Tex. Gov't Code Ann. § 508.145(d) (Vernon [2004])); Johnson at *3. "If a trial court determines that a defendant has violated the terms of his deferred adjudication and assesses imprisonment as a punishment, the trial court is required to enter any affirmative finding of a deadly weapon in its order adjudicating guilt." Sampson at 843-44 (citing TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. [2005])); accord Johnson at *3. "The finding would have had no legal consequence at the earlier stage in the proceedings, so it was not required to be entered at that time." 43 GEORGE E. DIX ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 38.110, at 738 (2d ed. 2001).