Need some help on this please. What level offense is pled/pleaded with the following language

"did then and there intentionally or knowingly enter a habitation without the effective consent of the owner, and attempted to commit or committed an assault against [victim]"

the answer to this question will control the disposition of an appeal i am working on. any feedback would be greatly appreciated.

Felony 2nd degree if in a habitation.

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if my particular case, DEF pled to what everyone thought was a first degree felony. odd case, so offer was 5 years probated for 5 years. within 6 months he was up on a revocation. pled true to some, revoked and sentenced to five years on a first degree felony

so now DEF is in custody for five years on what is called a first degree felony but what should be a second degree felony

the def's appellate attorney's suggestion is to reform the judgment to reflect second degree felony judgment. sounds like that might be a good idea any thoughts?

I'm out of the office today (holidays!) so I don't have access to my files but I think the proper remedy in this case would be reformation of the judgment since he was sentenced in accordance with the possible range of punishment for a second-degree felony.

As an aside, burglary of a hab with intent to commit assault CAN be a first-degree (potentially the source of your problem) if it is aggravated assault.

-L.

Nun Pro Tunc, changing the degree of the offense.

I'd argue there's no harm to the defendant. He was assumably admonished as to the range of 1st punishment, which encompasses 2nd.

Ask the defense attorney to sign off on the judgement as approved as to form and substance.

I had a similar situation arise several years ago, and both the defense attorney and defendant agreed to the nun pro tunc. I got my advice from a couple of sages on this board, although via telephone.

It inures to the D's benefit anyway, as when he is going through classification at TDCJ, they'll have it as a B.Hab2nd instead of a 1st. TDCJ might catch it, or they might not, in any event, it's in D's best interest to have it reflect a 2nd and not a 1st.