Christopher Lance Matthews v. State ( 2005 )

Opinion filed December 1, 2005

Opinion filed December 1, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00117-CR

                                                    __________

                       CHRISTOPHER LANCE MATTHEWS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. CR 16-957

                                                                   O P I N I O N

Christopher Lance Matthews pleaded guilty to criminally negligent homicide.  There was no plea bargain agreement.  The trial court convicted appellant of the offense, found that a deadly weapon was used during the commission of the offense, and assessed punishment at seven years confinement.  We affirm.

In his sole issue on appeal, appellant argues that he did not freely and voluntarily enter his plea of guilty because the trial court incorrectly admonished him on his eligibility for deferred adjudication.  The indictment alleged that appellant committed the offense of criminally negligent homicide by pointing a loaded shotgun at the victim and pulling the trigger.  Criminally negligent homicide is a state jail felony.  TEX. PEN. CODE ANN. ' 19.05(b) (Vernon 2003).  If there is a finding that a deadly weapon was used or exhibited during the commission of a state jail felony, the offense is punishable as a third degree felony. TEX. PEN. CODE ANN. 12.35(c)(1) (Vernon 2003).       The trial court admonished appellant:

[T]he range of punishment in this case is as a third degree felony if there is the finding of a deadly weapon as alleged in the Indictment...what that means is you are facing a maximum of 10 years in the Institutional Division of the Texas Department of Criminal Justice and a minimum of 2 years there, plus you could be fined any amount not to exceed $10,000.

The trial court further stated:

Now, on the other hand, if I did not so find, and if I instead considered this as a State Jail felony, then you=re looking at a range of the maximum of 2 years, minimum of 180 days in a State Jail with an optional fine of up to $10,000.

The trial court stated:

[R]egardless of which offense is involved here, that is, whether it=s a third degree or the State Jail felony, there could be a situation called deferred adjudication where I would not actually convict you of anything, if I thought that was appropriate, defer adjudication, postpone that, place you on supervision of this court for a period of up to ten years.

The trial court went on to explain the consequences of deferred adjudication to appellant.

Appellant argues that the trial court incorrectly admonished him on his eligibility for deferred adjudication.  Appellant contends that, pursuant to TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(2) (Vernon Pamph. Supp. 2005), he would not be eligible for deferred adjudication if the trial court found that a deadly weapon was used during the commission of the offense and assessed punishment as a third degree felony.  Article 42.12, section 3g(a)(2) is applicable to a defendant placed on community supervision without deferring the adjudication of guilt.  TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5 (Vernon Pamph. Supp. 2005) is applicable when the trial court finds that it is in the best interest of society and the defendant to defer an adjudication of guilt and place a defendant on community supervision.  Article 42.12, section 5  provides circumstances under which a trial court may not grant deferred adjudication. Article 42.12, section 5 does not prohibit a trial court from granting deferred adjudication for the offense of criminally negligent homicide whether punished as a state jail felony or a third degree felony.  The trial court did not err in admonishing appellant.  Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 1, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.