Gary Shane Kinkaid v. The State of Texas--Appeal from 40th District Court of Ellis County

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

Concurring Opinion on petition for

discretionary review

I withdraw my dissenting opinion dated December 14, 2005 and substitute this concurring opinion. What follows is my original dissenting opinion with the modifications necessary to reflect that the majority now overrules Kinkaid s sole issue regarding the trial court s deadly weapon finding.

The majority originally failed 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).

Conclusion

Because the majority now affirms the trial court s judgment, including the deadly weapon finding, I concur in the judgment.

TOM GRAY

Chief Justice

Concurring opinion delivered and filed February 15, 2006

Publish

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