David Eric Williams v. State of Texas ( 2007 )

Opinion filed September 13, 2007

Opinion filed September 13, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00262-CR

                                                    __________

                                 DAVID ERIC WILLIAMS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                    Trial Court Cause No. 14184

                                                                   O P I N I O N

This is an appeal from a judgment revoking community supervision.  David Eric Williams originally entered a plea of guilty to the second degree felony offense of aggravated assault.  Pursuant to the plea bargain agreement, the trial court convicted appellant and assessed his punishment at confinement for ten years and a $3,000 fine.  Consistent with the plea bargain agreement,  the trial court suspended the imposition of the sentence and placed appellant on community supervision for ten years.  At the hearing on the State=s motion to revoke, appellant entered pleas of true to six of the State=s allegations.  The trial court found nine of the State=s allegations to be true.  The trial court then revoked appellant=s community supervision and imposed a sentence of confinement for six years.  In its revocation judgment, the trial court also entered a deadly weapon finding as to the aggravated assault offense.  We modify the revocation judgment to delete the deadly weapon finding and affirm.

                                                                 Issues on Appeal

Appellant briefs two issues on appeal.  First, he argues that the trial court erred in making a deadly weapon finding in the revocation judgment when such a finding was not included in the judgment convicting him of aggravated assault. Second, he argues that the trial court abused its discretion in assessing his sentence at confinement for six years.

                                                           Deadly Weapon Finding

The record from the original plea hearing reflects that a deadly weapon finding was not included in the plea bargain agreement, was not entered in the trial court=s oral pronouncement in open court, and was not entered in the judgment convicting appellant of aggravated assault.  Appellant correctly contends in his first issue that a deadly weapon finding could not be included in the subsequent judgment revoking his community supervision under the facts of this case.  Ex parte Shaw, 724 S.W.2d 75, 77 (Tex. Crim. App. 1987); Rivers v. State, 99 S.W.3d 659, 660 (Tex. App.CWaco 2003, no pet.).  The first issue is sustained, and the judgment revoking community supervision is modified to delete the deadly weapon finding.

                                               Punishment Assessed After Revocation

In his second issue, appellant argues that the sentence of confinement for six years was Aunfair and unjust@ because he had completed approximately nine and one-half years of his ten-year-term of community supervision at the time the trial court revoked his community supervision.  Therefore, appellant contends that the trial court abused its discretion.  We disagree.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 23 (Vernon 2006 ) provides that, upon revocation of community supervision, the trial court may reduce the original term of confinement provided that the trial court finds a shorter sentence is in the Abest interests of society and the defendant@ and that the shorter sentence is not less than the minimum prescribed by the legislature for the offense.  Article 42.12, section 23 also provides that A[n]o part of the time that the defendant is on community supervision shall be considered as any part of the time that he shall be sentenced to serve@ after revocation.

Tex. Penal Code Ann. ' 22.02 (Vernon Supp. 2006) defines the offense of aggravated assault and declares it to be a second degree felony.  Tex. Penal code Ann. ' 12. 33 (Vernon 2003) provides that a person convicted of a second degree felony shall be confined for a term of not more than twenty years nor less than two years. The trial court assessed appellant=s sentence at six years, a term well within the range prescribed by the legislature. A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d). The second issue is overruled.

                                                               This Court=s Ruling

The trial court=s August 24, 2006 judgment revoking community supervision is modified to delete the deadly weapon finding.  As modified, the judgment is affirmed.

TERRY McCALL

JUSTICE

September 13, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.