Rivers, Ex Parte Kevin Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,488

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EX PARTE KEVIN LEE RIVERS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NUMBER D-1-DC-2004-205266 FROM THE 390TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY

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   Per curiam.



O P I N I O N  

   This is a post-conviction application for writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3. Applicant was convicted of possession of more than one gram of cocaine and punishment was assessed at confinement for two and a half years. There was no appeal from this conviction.

Applicant contends, inter alia, that he has improperly been denied release on mandatory supervision. The trial court entered findings of fact that Applicant has been denied release on mandatory supervision because he was previously convicted of aggravated assault on a peace officer, a third degree felony, and that assault was committed in 1992.

A prior conviction for a third degree felony aggravated assault does not render an inmate ineligible for mandatory supervision unless that conviction included a finding either that a deadly weapon was used or exhibited or that serious bodily injury resulted. Ex parte Byrd, 162 S.W.3d 250 (Tex. Crim. App. 2005); Ex parte Hall, 995 S.W.2d 151 (Tex. Crim. App. 1999). Applicant's previous aggravated assault conviction did not include either of these elements, so the Texas Department of Criminal Justice has erroneously classified Applicant as ineligible for mandatory supervision.

Habeas corpus relief is granted. The Texas Department of Criminal Justice, Criminal Institutions Division, shall immediately classify Applicant as eligible for mandatory supervision in cause number D-1-DC-2004-205266 in the 390^th Judicial District Court of Travis County.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Criminal Institutions and Parole Divisions, and to the Texas Board of Pardons and Paroles.

DO NOT PUBLISH   

DELIVERED: August 30, 2006