Gary Shane Kinkaid v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00368-CR

Gary Shane Kinkaid,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 27777CR

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.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Affirmed as reformed

Opinion delivered and filed December 14, 2005

Do not publish

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