Kinkaid v. State , 2006 Tex. App. LEXIS 1311 ( 2006 )

OPINION ON PETITION FOR DISCRETIONARY REVIEW

BILL VANCE, Justice.

As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this modified opinion within 30 days after the State filed a Petition for Discretionary Review.¹ Tex.R.App. P. 50.

INTRODUCTION

Gary Shane Kinkaid pled guilty to the felony offense of aggravated assault with a deadly weapon. Adjudication was deferred and he was placed on community supervision for a period of five years. In the order placing Kinkaid on deferred adjudication, the trial court did not enter a deadly weapon finding. The trial court ultimately revoked Kinkaid’s community supervision, adjudicated his guilt, made a deadly weapon finding, and sentenced him to twenty years in prison. Kinkaid appeals his revocation. In his sole issue, Kinkaid contends that the trial court erred by entering an affirmative deadly weapon finding in the order revoking his community supervision.

LAW AND ANALYSIS

As the Sampson court explained, the purpose of making an affirmative deadly weapon finding is to assist in calculating a prisoner’s parole eligibility date. Sampson v. State, 983 S.W.2d 842 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd). Parole eligibility applies only to incarcerated individuals. It is not applicable when the adjudication of guilt of a defendant has been deferred and he is placed on community supervision. Id. Therefore, a deadly weapon finding is not appropriate in an order of deferred adjudication. Id.

If a trial court determines a defendant has violated the terms of his deferred adjudication and assesses imprisonment as punishment, it is then appropriate to make an affirmative deadly weapon finding in the order adjudicating guilt. Tex.Code CRim. PROC. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.2005). In this case, the trial court correctly entered the affirmative deadly weapon finding in the order adjudicating guilt.

We overrule Kinkaid’s sole issue.

CONCLUSION

The trial court’s judgment is affirmed. Our opinions and judgment dated December 14, 2005, are withdrawn, and this opinion is substituted as the opinion of the court. Tex.R.App. P. 50. The State’s Petition for Discretionary Review is dismissed by operation of law. Id.

Chief Justice GRAY concurring.

1 . The State’s PDR is an excellent discussion of the issue and the ramifications of our original opinion.