### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00367- CR

Blair Duan e Wright, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LAMP ASAS CO UNTY, 27TH JUDICI AL DISTRICT NO. 821 4, H ONO RAB LE WI LLIAM B ACHUS JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
P ER CURIAM

I n Fe bruar

y 200 9 , appellant Bla ir Duane Wright pleade d g uilty to an indictment

acc using him of driving while intox icated with a passeng er y oung er than fiftee n y ear s of ag e, a state jail felony

. See Tex. Penal Code Ann. § 49.045 (West Supp. 2010). He al s o pleade d true to enh an ce m ent para g raphs alleg ing previous convictions for theft of more than $1500, a state jail felony , and obstruction or reta liation, a third d egr ee felony

. See id

. §§ 31.03(a) , (e) (4)( A), 36.06(a) , (c)

. The tr i al co u rt adjudg ed him g uilty and, pursuant to a plea barg ain, assessed punishment at nineteen y ear s in prison.

I n November 2009, appe l l ant wrote a letter to the trial court complaining that the
sentenc e was unlawful. Following a hear ing in May 2010, the trial court ag ree d with appellant that the two previous convictions did not opera te to enhanc e his punishment under the applicable statute.See id

. § 12.42(a) (2) (providing that at trial o f u nag g rava ted state jail felony , defe ndant shall be

punished for second deg ree felony upon proof of two previous sequential felony convictions); Campbell v. State , 49 S.W .3d 874, 878 (Tex. Cri m . App. 2001) (holding that as used in

s ection 12.42(a) , “fe lony ” and “state jail felony ” are mutually exclusive). The court rese ntenc ed appellant to two y ear s in state jail, and appe llant ga ve notice of

appea l. Appellant’s court-a

ppointed attorney has filed a motion to withdraw supported by a brief concluding that the appea l is frivo l o us and without merit. See Anders v. Calif ornia , 386 U.S. 738, 744 (1967). I n a pro se brief responding to counsel’s Anders brief, appellant contends that beca use he pleade d g uilty pursuant to a plea barg ain ag ree ment that called for a sentenc e g rea ter than that allowed by law, his c onviction must be rever sed and the cause rema nded to allow him to withdraw his plea

. See E x parte Rich , 194 S.W .3d 508, 514 (Tex. Crim. App. 2006). 1
We conclude that the contention raised by appellant in his pro se brief is an arg uable
g round for appea l. There fore , we a bate the a ppeal a nd rema nd the cause to the trial court with the instruction to appoint new counsel to brief the iss u e. S ee Bledsoe v. State , 178 S.W .3d 824, 827

At the same Fe bruar

y 2009 proce eding , appellant also pleade d g uilty to an indictment acc using 1 him of failing to appea

r, a third deg ree felony

. See Tex. Penal Code Ann. § 38.10(a) , (f) (W est 2003). The same previous convict i o n fo r theft of more than $1500 was alleg ed for enhanc ement, and the trial court assessed the same neg otiated nineteen- y ear prison term. Although the failure to appea r conviction is not befor e us in this appea l, we note th at t h e use of a previous state jail felony conviction to enhan ce a t h i rd deg ree felony under section 12.42(a) (3) may also violate the holding in Campbell that the terms “fe lony ” and “state jail felony ,” as used in section 12.42(a) , are mutually exclusive. See Tex. Pena l Code Ann. § 12.42(a) (3) (West Supp. 2010) (providing that at trial of third deg ree felony , defe ndant shall be puni shed for second deg ree felony upon proof of previous felony conviction); Campbell v. State , 49 S.W .3d 874, 878 (Tex. Crim. App. 2001). This is an is sue appellant may urg e in a post -convic tion habea s corpus application. See Ex part e Rich , 194 S.W .3d 508, 511 (Tex. Crim. App. 2006). 2(Tex. Crim. App. 2005). A copy of the order appointing new counsel shall be forwa rded to the Clerk within ten day s of the date of this opinion. Subject to an extension of time for g ood cause shown, substitut e counsel shall tender a brief within thirty day s. Present counse l ’s m o tion to withdraw is gr anted.

Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Abated Filed: June 15, 2011 Do Not Publish

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