Kenneth Scott Gray v. State ( 2007 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-06-00719-CR

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Kenneth Scott Gray, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 42072, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

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M E M O R A N D U M O P I N I O N

In 1992, appellant Kenneth Scott Gray pleaded guilty to aggravated assault with a deadly weapon and was placed on deferred adjudication supervision for ten years. A motion to adjudicate was filed in 1995, but appellant absconded and the motion was not heard until 2006. At the hearing, appellant admitted the violations alleged in the motion. He was adjudged guilty and sentenced to fourteen years' imprisonment.

Appellant's court-appointed counsel filed a brief in which he states that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Our review of the record, however, discloses an error that is not frivolous.

At the time this offense was committed, aggravated assault with a deadly weapon was a third degree felony. Act of May 28, 1989, 71st Leg., R.S., ch. 939, §§ 1, 2, 1989 Tex. Gen. Laws

4003-04 (amended 1994) (current version at Tex. Penal Code Ann. § 22.02(a)(2), (b) (West Supp. 2006)). In fact, the trial court admonished appellant of this fact at the adjudication hearing. A third degree felony is punishable by a term of imprisonment of not more than ten years. Tex. Penal Code Ann. § 12.34(a) (West 2003). The fourteen-year sentence imposed in this case exceeds this statutory limit.

The appeal is abated. The trial court is instructed to appoint substitute counsel to file a brief discussing the propriety of the sentence and any other issue counsel deems meritorious. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Present counsel's motion to withdraw is granted. See id. A copy of the order appointing substitute counsel shall be forwarded to this Court no later than April 13, 2007. Substitute counsel's brief will be due thirty days after the date of appointment.

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Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Abated

Filed: April 4, 2007

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