Opinion
No. 05-08-00629-CR
Opinion Filed March 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-51343-PQ.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Walter Ray Andrews waived a jury and pleaded guilty to burglary of a building. The trial court assessed punishment, enhanced by two prior convictions, at fourteen years' imprisonment. In a single point of error, appellant contends the judgment is void because the sentence assessed is outside the maximum allowed by law. We reverse and remand to the trial court for a new punishment hearing. Appellant argues one of his prior convictions was a state jail felony and could not be used to enhance the punishment range. Thus the enhanced sentence is void, and the case should be returned to the trial court for a new punishment hearing. The State agrees that appellant's sentence was improperly enhanced under the repeat offender statute, and appellant should receive a new punishment hearing. During a trial before the court, appellant pleaded guilty to burglary of a building, a state-jail felony, and true to two enhancement paragraphs detailing two prior convictions for burglary of a habitation in March 1991 and unauthorized use of a motor vehicle in November 2000. In 1991, burglary of a habitation was a second-degree felony offense. See Act of June 14, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 926-27 (amended 1993) (current version at Tex. Penal Code Ann. § 30.02(c)(2) (Vernon 2003)). In 2000, unauthorized use of a motor vehicle was a state-jail felony offense. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3643 (current version at Tex. Penal Code Ann. § 31.07(b)). The punishment range for a second-degree felony is imprisonment for not more than twenty years or less than two years, and an optional fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.33. The punishment range for a state-jail felony is confinement in a state jail for not more than two years or less than 180 days, and an optional fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.34. Although a trial court is authorized to assess an enhanced punishment for a repeat or habitual felony offender, the Court of Criminal Appeals has held that offenders who have two previous convictions in the form of one state-jail felony and one non-state-jail felony are not subject to increased punishment. See Campbell v. State, 49 S.W.3d 874, 878 (Tex.Crim.App. 2001); see also Tex. Penal Code Ann. § 12.42(a) (Vernon Supp. 2008). Thus, the trial court imposed an unauthorized sentence by assessing a fourteen-year prison term. We sustain appellant's sole point of error. We reverse the trial court's judgment and remand to the trial court for a new punishment hearing.