Ex Parte Hopson

OPINION

McCORMICK, Judge.

This is a post conviction application for writ of habeas corpus. Article 11.07, V.A. C.C.P. Applicant alleges that he agreed to enter a plea of guilty to the offense of escape, enhanced by one prior conviction, on the condition that he would be assessed a life sentence but there would be no affirmative finding of the use of a deadly weapon during the commission of the offense and he would thus be entitled to good time credit in the determination of his eligibility for parole. Article 42.12, Section 3f(a)(2) and Section 15(b), V.A.C.C.P.

The record before us shows that applicant was indicted in pertinent part as follows:

“... did then and there after being arrested for and convicted of an offense, to-wit: Murder, a felony, did intentionally and knowingly escape from the custody of Lester Gunn, to-wit: Sheriff of Bell County, Texas and the said James Alvin Hopson did then and there to effect his escape intentionally and knowingly threaten to use and used a deadly weapon, to-wit: a razor and a razor blade....”

Thereafter followed one enhancement paragraph.

V.T.C.A., Penal Code, Section 38.07, provides as follows:

“(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
“(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if the actor: “(1) is under arrest for, charged with, or convicted of a felony; or
“(2) is confined in a penal institution.
“(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.”

As can be seen, the fact that applicant was charged with escape after being convicted of murder raised the offense from a Class A misdemeanor to a third-degree felony. Section 38.07(c)(1), supra. This alone, enhanced by one prior conviction, mandated that applicant be punished for a second-degree felony, that is, 2 to 20 years, and a fine not to exceed $10,000. V.T.C.A., Penal Code, Section 12.42(a) and Section 12.33.

Moreover, in the instant case, applicant was also alleged to have used a deadly weapon to effect his escape. This additional allegation raised the offense from a *547third-degree felony to a second-degree felony. Section 38.07(d), supra. Adding to that the paragraph alleging the enhancement for one prior conviction, we see that applicant’s potential punishment was raised to the range of a first-degree felony, this is, 5 to 99 years or life, and a fine not to exceed $10,000. V.T.C.A., Penal Code, Section 12.42(b), Section 12.32.

Applicant argues in his application that according to the terms of his plea bargain he agreed to plead only to the lesser included offense of escape, enhanced by a prior conviction. In return, he would receive a life sentence.

Our reading of the circumstances surrounding the taking of the plea, however, does not support that argument. And indeed, had the terms of the plea bargain agreement been such, the agreement would be void since the greatest punishment available for an enhanced third degree felony would be twenty years and a $10,000 fine. Sections 12.42(a) and 12.33, supra.

The record shows that at the plea hearing the prosecutor announced ready for the offense of escape with a deadly weapon, enhanced to a first-degree felony. The following occurred when the court asked applicant to enter a plea:

“[The Court]: But I have been presented here with copies of the plea bargain agreement as disclosed....
Now in Cause Number 29,355 it’s alleged that on the 30th of October, 1980 in Bell County, Texas, you then and there, after having been arrested and convicted of an offense, to-wit: murder, a felony, intentionally and knowingly escaped from custody of the sheriff, Lester Gunn, and that you did then and there, to effect your escape, intentionally and knowingly threaten to use and you did use a razor — a razorblade.
Now, to that charge, how do you plead, guilty or not guilty?
“A. Guilty.
* * * * * *
“Q. Now you understand with the pleas1 that you have entered here, there is a mandatory punishment with the plead — with the enhancement, there is a mandatory punishment in each case of life.
Do you understand that?
“A. Yes, sir.
“Q. And do you understand the plea bargain to be that these are going to run concurrently?
“A. Yes, sir.
“Q. These sentences; is that right?
“Mr. Leitner [the prosecutor]: That’s right. But there is not a mandatory punishment of life.
“The Court: It’s a first degree felony.
“Mr. Leitner: It’s a first degree and is supposed to be five to life, and a $10,-000 fine, up to $10,000.00 fine.
“Q. It’s mandatory first degree punishment, five to life, and a $10,000.00 fine may be imposed in addition.
But do you understand that the plea bargain is going to be that you receive life in each case?
“A. Yes, sir.
sfc sjs ⅝ * ⅜ ⅝
“Q. And have you discussed also with Mr. Holbrook [Defense Counsel] and has he explained to you that the court, in return for your plea, is not going to make an affirmative finding that there was a deadly weapon used in either one of these cases?
“A. Yes, sir.
“Q. So that you may be given the benefit of that ommission (sic) in crediting your time served in the penitentiary; do you understand that?
“A. Yes, sir.
“Q. Now, and knowing all that, do you still insist on your pleas of guilty and true as made, for the record?
*548“A. Yes sir.”

Thereafter, the court examined applicant’s judicial confession and then assessed life in each cause. Our review of applicant’s judicial confession shows that he confessed to using a deadly weapon, to-wit: a razor and razor blade, in effecting his escape. Furthermore, the record contains a pleading denominated “Disclosure of Plea Bargain Agreement.” This document reflects that applicant was to plead guilty to “Escape a 2nd Degree Felony Enhanced to a 1st Degree” in exchange for a life sentence. Thus, it is clear that applicant was not pleading to third-degree escape, but was knowingly and voluntarily pleading guilty to the offense of second-degree escape,2 that is, escape with a deadly weapon.

We turn now to the judgment and sentence entered in this cause. Both reflect that applicant was found guilty of the offense of “escape with a deadly weapon (enhanced).” We agree with applicant that this wording in the judgment amounts to an affirmative finding of a deadly weapon and thus violates the terms of the plea bargain entered into by the parties.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court wrote that where a plea bargain agreement is entered into, it must be enforced either by specific performance or else the defendant must be allowed to withdraw his plea. Examining the current case law in this particular area, we feel that the proper remedy in the instant case is specific performance, that is, deleting the affirmative finding of a deadly weapon from the judgment and sentence, for when such a finding is included in the judgment, good conduct time served is not considered when computing the prisoner’s parole eligibility. Carrillo v. State, 634 S.W.2d 21 (Tex.App. — El Paso, 1982, no p.d.r.). Therefore, we now order that the judgment and sentence be reformed in the instant case to reflect that applicant was found guilty of the offense of “escape, a 2nd degree felony (enhanced).” See, Ex parte Nino, 659 S.W.2d 437 (Tex.Cr.App.1983). Such reformation effectively deletes any affirmative finding of a deadly weapon and this satisfies all the terms of applicant’s plea bargain. Turner v. State, 664 S.W.2d 86, 90 (Tex.Cr.App.1983). Compare: Delgado v. State, 677 S.W.2d 776 (Tex.App.— San Antonio 1984) (guilty plea case where although indictment alleged defendant committed murder by shooting with a gun, judgment contained no affirmative finding of a deadly weapon-nor did it reflect that the deadly weapon used was a firearm, and thus defendant was not ineligible for probation).

It is so ordered.

. Applicant was also pleading to a robbery case at the same time he entered a plea in the instant case.

. Both the judicial confession and the "Disclosure of Plea Bargain Agreement” were signed, dated and filed on January 23, 1981, the same date applicant’s plea was entered.