      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00719-CR



                                Kenneth Scott Gray, Appellant

                                                v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 42072, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In 1992, appellant Kenneth Scott Gray pleaded guilty to aggravated assault with a

deadly weapon and was placed on deferred adjudication supervision for ten years. A motion to

adjudicate was filed in 1995, but appellant absconded and the motion was not heard until 2006. At

the hearing, appellant admitted the violations alleged in the motion. He was adjudged guilty and

sentenced to fourteen years’ imprisonment.

               Appellant’s court-appointed attorney filed a brief in which he stated that the appeal

is frivolous. See Anders v. California, 386 U.S. 738 (1967). However, our review of the record

disclosed a potential error that was not frivolous. At the time it was committed, the offense in

this cause was a third degree felony. Act of May 28, 1989, 71st Leg., R.S., ch. 939, §§ 1, 2, 1989

Tex. Gen. Laws 4003-04 (amended 1994). Thus, the fourteen-year sentence imposed appeared to

exceed the statutory limit. The Court abated the appeal for rebriefing. See Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991).

               The State then filed a supplemental brief confessing error. See Mizell v. State, 119

S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding that sentence that is outside range of punishment

is illegal). Any court with jurisdiction over a criminal case may notice and correct an illegal

sentence. Id. In light of the State’s confession of error and the Court’s own authority to correct an

illegal sentence, further briefing was unnecessary. Therefore, the opinion abating the appeal

was withdrawn.

               Appellant received a copy of counsel’s brief and was advised of his right to examine

the appellate record and to file a pro se brief. No pro se brief has been filed. With the exception

of the improper sentence, our review of the record discloses no error that might arguably support

the appeal.

               The judgment of conviction is affirmed with respect to the adjudication of guilt. That

portion of the judgment imposing sentence is reversed and the cause is remanded for reassessment

of punishment as a third degree felony. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West 2006).




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed in part; Reversed and Remanded in part

Filed: May 10, 2007

Do Not Publish

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