
No. 04-99-00610-CR
William James KESINGER,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 96CR3613W
Honorable Mark R. Luitjen, Judge Presiding
Opinion by:	Catherine Stone, Justice
Sitting:	Catherine Stone, Justice
		Paul W. Green, Justice
		Karen Angelini, Justice
 
Delivered and Filed:	November 22, 2000
AFFIRMED
	William James Kesinger ("Kesinger") appeals a judgment sentencing him to two years
confinement in a state jail facility.  Kesinger presents one issue, asserting that the trial court was
required to suspend imposition of his sentence and place him on community supervision.  We overrule
this contention and affirm the trial court's judgment.
Background
	Kesinger was charged with committing the offense of criminal mischief, a state jail felony, on
May 27, 1996.  On October 2, 1996, the trial court deferred adjudication of Kesinger's guilt and
placed him on community supervision for a period of four years.  On May 29, 1997, the State filed
a motion to enter adjudication of guilt and revoke probation, alleging Kesinger had violated the terms
and conditions of his probation.  On May 13, 1999, the State filed its first amended motion to enter
adjudication of guilt and revoke probation.  On July 12, 1999, Kesinger pled true to the allegations
in the State's motion.  The trial court adjudicated Kesinger's guilt and sentenced him to two years
in a state jail facility.  Kesinger timely filed this appeal.
Discussion
	Kesinger argues that the trial court was required to suspend imposition of his sentence and
place him on community supervision based on article 42.12, section 15(a) of the Texas Code of
Criminal Procedure.  The version of article 42.12, section 15(a) applicable to defendants convicted
of an offense committed before September 1, 1997, provided:
	On conviction of a state jail felony, punished under Section 12.35(a), Penal Code, the
judge shall suspend the imposition of the sentence of confinement and place the
defendant on community supervision, unless the defendant has been previously
convicted of a felony, in which event the judge may suspend the imposition of the
sentence and place the defendant on community supervision or may order the sentence
to be executed.
Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 60, 1995 Tex. Gen. Laws 2734, 2754, amended by,
Act of May 15, 1997, 75th Leg., R.S., ch. 488, §§ 1, 6, 1997 Tex. Gen. Laws 1812, 1812.  The State
concedes that if this were the only applicable statutory provision, the trial court would have been
required to suspend Kesinger's sentence.  See State v. Mancuso, 919 S.W.2d 86, 89 (Tex. Crim. App.
1996); see also Jackson v. State, 990 S.W.2d 879, 882 (Tex. App.--Beaumont 1999, no pet.);
Jordan v. State, 979 S.W.2d 75, 77 (Tex. App.--Austin 1998, pet. granted).  However, the State
asserts that article 42.12, section 5(b) is specifically applicable to the situation that faced the trial
court and enabled the trial court to impose sentence.  Article 42.12, section 5(b) provides, in pertinent
part:
	A court assessing punishment after an adjudication of guilt of a defendant charged
with a state jail felony may suspend the imposition of the sentence and place the
defendant on community supervision or may order the sentence to be executed,
regardless of whether the defendant has been previously convicted of a felony.
Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2000).  This version of article 42.12,
section 5(b) was in effect when Kesinger committed the offense, when his adjudication was deferred,
and when his guilt was adjudicated and sentence was imposed.  A specific statute prevails over a
general statute.  See State v. Mancuso, 919 S.W.2d at 88.  Under article 42.12, section 5(b), the trial
court was permitted to impose sentence. (1) 
Conclusion
	The judgment of the trial court is affirmed.
							Catherine Stone, Justice
PUBLISH
1. Although our decision appears to be in conflict with the decision reached by the Beaumont court, we note
that the Beaumont court did not take article 42.12, section 5(b) into consideration in reaching its decision, and the
Beaumont court merely noted the possibility that the sentence was illegal in remanding the cause to the trial court for
a new punishment hearing.  See Jackson, 990 S.W.2d at 882.  On remand, the trial court still may have imposed
sentence based on article 42.12, section 5(b).  In addition, we note that the Austin court was not dealing with a situation
involving a state jail felony for which adjudication had previously been deferred.  See Jordan, 979 S.W.2d at 76-77
(sentence imposed following plea of guilt).
