


 
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
 

MEMORANDUM  Opinion

 
Gary Shane Kinkaid pled guilty to the felony
offense of aggravated assault with a deadly weapon.  He received a deferred
sentence and was placed on community supervision for a period of five years. 
The trial court ultimately revoked Kinkaid’s community supervision, made a
deadly weapon finding, and sentenced him to twenty years in prison.  Kinkaid
appeals his revocation.  We affirm as reformed.
In his sole issue, Kinkaid contends that the
trial court erred by entering an affirmative deadly weapon finding in the order
revoking Kinkaid’s community supervision.  The trial court had not entered a
deadly weapon finding in its earlier judgment; in fact, it entered “none.”
     The Code of Criminal Procedure provides
that the trial court "shall" enter an affirmative deadly weapon
finding in the judgment of the court.  Tex.
Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2005).  When
a trial court forgoes an affirmative finding regarding a deadly weapon at the
time of the judgment and suspends the sentence, it has no authority to enter
such finding in connection with the later revocation of community supervision. 
Rivers v. State, 99 S.W.3d 659, 660 (Tex. App.—Waco 2003, no pet.).  The
trial court had no authority to enter the deadly weapon finding in the order
revoking Kinkaid’s community supervision.
Kinkaid’s sole issue is sustained.  The
revocation order is reformed to delete the deadly weapon finding.  As reformed,
the trial court's order of revocation is affirmed.
 
 
 
BILL VANCE
Justice
 
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
          (Chief
Justice Gray dissenting)
Affirmed
as reformed
Opinion
delivered and filed December 14, 2005
Do
not publish
[CR25]

