Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In 2002, applicant plead guilty to deadly conduct, a third-degree felony. The trial court deferred adjudication of guilt in accordance with a plea agreement and placed applicant on community supervision for three years. In 2004, the state moved for an adjudication of guilt. The trial court adjudicated applicant and orally sentenced him to eight years’ imprisonment, but did not announce a deadly weapon finding. In the written judgment and sentence, however, the trial court included an affirmative deadly weapon finding. HOLDING:Denied. Applicant asserts that the trial court’s entry of an affirmative deadly weapon finding violated Texas Code of Criminal Procedure Article 26.13(a)(2), Article 42.12 �5(b) and his due process rights, thus rendering his plea involuntary and his sentence illegal. Applicant contends that Article 26.13(a)(2) requires a court to either follow the existing plea agreement made before the decision to adjudicate guilt or allow applicant to withdraw his previously entered guilty plea. In Ditto v. State, 988 S.W.2d 236 (Tex. Crim. App. 1999), the court held that, unlike regular community supervision, “[u]pon violation of the deferred adjudication probations, the judges have no further obligation to comply with the plea bargains since the bargains had already been satisfied by the judges’ initial sentencing.” Applicant argues that the trial court lacked the authority to enter an affirmative deadly weapon finding because the court failed to proceed as if adjudication had not been deferred pursuant to Article 42.12 �5(b). Applicant relies on Ditto. As the court noted in Ditto, the court of appeals misread Article 42.12 �5(b) and based its ruling on “[w]hen a defendant’s deferred adjudication is revoked,” rather than the actual words of the statute, “[a]fter an adjudication . . ..” “Only after guilt has been adjudicated do proceedings continue as if there had been no deferred adjudication. Accordingly, section 5(b) does not stand for the proposition that appellants were in a position to withdraw their pleas after the revocation of their deferred adjudication probations.” Applicant asserts, pursuant to Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002), that the inclusion of the deadly weapon finding in the written judgment destroyed his legitimate expectation of serving the sentence announced orally by the court. A deadly weapon finding, however, is not part of the sentence. a trial court is not required to orally announce a deadly weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment. The trial court properly included an affirmative deadly weapon finding in the written judgment. OPINION:Johnson, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Meyers, J., dissented.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.