Opinion
Nos. WR-71,157-02 and WR-71,157-03
Filed: January 13, 2010. DO NOT PUBLISH.
On Applications for Writs of Habeas Corpus Cause Nos. W04-48339-I and W04-48253-I in Criminal District Court No. 2 from Dallas County.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failure to stop and render aid and murder and sentenced to forty (40) years' imprisonment in both causes. The Eighth Court of Appeals affirmed his convictions. Jordan v. State, Nos. 08-05-00251-CR and 08-05-00252-CR (Tex. App.-El Paso, 2007, no pet.) (not designated for publication). Applicant contends inter alia that the enhancement paragraphs were invalid because the offenses used to enhance punishment were state jail felony offenses and therefore could not be used to enhance punishment under Tex. Pen. Code, § 12.42 (d). Pursuant to this Court's remand order, the trial court entered supplemental findings of fact and conclusions of law recommending that relief be denied. This Court has undertaken an independent review of all the evidence in the record. We agree that relief should be denied. The record reflects that Applicant has several prior second degree felony convictions which could have been substituted for the prior state jail felony conviction to properly enhance punishment under Section 12.42(d). We decline to adopt the trial judge's finding that the prior state jail felony conviction punished as a third degree felony conviction could be used to enhance punishment under Section 12.42 (d) because it is contrary to the law. Based upon the trial court's remaining findings of fact and conclusions of law, as well as our own independent review of the record, we deny relief.