
 NO. 12-02-00248-CV

 
IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT

 
TYLER, TEXAS

 

§



IN RE: ROBERT CALDWELL§
	ORIGINAL PROCEEDING


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 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therefore contends that the trial court's sentencing order was void and should be rescinded.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(DO NOT PUBLISH)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.

