In Re: Robert Caldwell--Appeal from 7th District Court of Smith County

NO. 12-02-00248-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: ROBERT CALDWELL

 
ORIGINAL PROCEEDING

Relator Robert Caldwell ("Relator") seeks a writ of mandamus compelling the 7th District Court of Smith County to rescind its order sentencing Relator to deferred adjudication probation for aggravated assault. We deny the writ.

Relator alleges that article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure provides that judge-ordered community supervision is not available to a defendant who uses or exhibits a deadly weapon during the commission of a felony offense or during immediate flight therefrom. Tex. Code Crim. Proc. Ann. art. 42.12 3g(a)(2) (Vernon Supp. 2002). The indictment in the instant case states that Relator used a deadly weapon to threaten another individual. Relator therefore contends that the trial court's sentencing order was void and should be rescinded.

Relator was sentenced to deferred adjudication probation and not regular probation. Therefore, the imposition of his sentence is governed by section 5, and not section 3g(a)(2), of Article 42.12. (1) Id. 5. Section 5 provides that after receiving a plea of guilty of plea or nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, the trial court may defer further proceedings without entering an adjudication of guilt and place the defendant on community supervision. Id. From the record before us, we cannot determine that the imposition of sentence in this case was contrary to section 5. Consequently, Relator has not shown that he is entitled to mandamus relief.

Relator's petition for writ of mandamus is denied.

Sam Griffith

Justice

 

Opinion delivered November 8, 2002.

Panel consisted of Worthen, J., and Griffith, J.

Gohmert, Jr., C.J., not participating.

 
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
November 8, 2002
NO. 12-02-00248-CV
IN RE: ROBERT CALDWELL
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Robert Caldwell, who is the defendant in Cause No. 007-81669-97, pending on the docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on September 9, 2002, and the same having been duly considered, because it is the opinion of this Court that A Writ of Mandamus Should Not Issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby Denied.

It is further ORDERED that Robert Caldwell, pay all costs incurred by reason of this proceeding.

Sam Griffith, Justice.

Panel consisted of Worthen, J., and Griffith, J.

Gohmert, Jr., C.J., not participating.

1. Relator's erroneous reference to section 3g(a)(2) appears to be the result of a statement in the court documents attached as an appendix to his petition that he received deferred adjudication pursuant to article 42.12, section 3 of the Texas Code of Criminal Procedure. However, that provision relates to regular community supervision and not deferred adjudication.