in Re Sue Walston ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00421-CV

In re Sue Walston

Original Proceeding

ORDER OF RECUSAL

          I hereby order myself recused from further participation in this case pursuant to Texas Rule of Appellate Procedure 16.2, which incorporates by reference Texas Rule of Civil Procedure 18b.  See Tex. R. Civ. P. 18b(2)(a).

          Signed February 7, 2006.

                                                                   TOM GRAY

                                                                   Chief Justice

'>      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).

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed December 14, 2005

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