## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 23

- 00095

- CR

___________________________

On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1 774483R
Before Kerr, Birdwell, and Bassel, JJ. M em orandum Opinion by Justice Kerr 

### M ICHAEL 

### A ARON 

### J OBSON 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appell a nt Michael A aron Jobson appeals h is sentence of 25 years ’ incarceration
for failure to comply with sex

- offender

- registration r equ irements

. See T e x . Code Crim.
P roc. Ann. art

. 62.102

. I n a single p oint , J ob son argues that his sentence is illegal
because it is outside the lawful punishment range . We agree that the trial court imposed an il legal sentence , and we therefore rev e r se Jobson ’ s sent ence and remand for a new punishment trial.
I. B AC KGROUND Jobson was indicted for failing to comply with the r equire ments of the s ex
offender

- registrat ion statute , a third

- degree fel ony . See id. art
. 62. 102(b)(2). In two

en hanc ement paragraphs , th e i ndict m ent all eged that Jobson had previously bee n convic ted of two felony

- sex

- offender

- registr at ion offenses

. Jobson pl eaded not gu ilty to the alleged offense and not true to the two enhancement p a ragraphs. T he jury found Jobson guilty , found bo th enhancem ent
paragra ph s t rue , a nd assessed Jobson ’ s punishment at 25 years ’ incarcerat ion

. The trial court sentenced him accordingly. Jobson now app eals the imposition of that sentence.
II. D ISCUSSION In a singl e point , Jobson argues that his sentence is illega l because it ex ceeds the lawful p unishment range . T he S tate concedes the point , and we agree.3 A. Standar d of Review and Applicable Law
A sentence that is outside the authorized punishme nt range is an illegal

sentence. O ’ R eilly v. State , 501 S.W.3d 722, 728

– 29 (Tex. App

. — Dallas 2016, no pet.) (citing Ex parte Parrott , 396 S.W.3d 531, 534 (Tex. Crim. App. 2013)). “If a defendant ’ s range of punishment is impro perly enhanced, in the sense th at the prior convictions alleged do not actually support enhancement under the appli cable sta tutory provision,
then the defendant has been sentenced in violation of the law and his sentence is ‘illegal.’ ” Bell v. State , 635 S .W.3d 641, 64 5 (Tex. Crim. App. 2021) (citing Ex parte Rich , 194 S. W.3d 508, 511

– 12 (Tex. Crim. App. 2006)). T his i s an unwa ivable complaint that may be challenged at any time. O ’ Reilly , 501 S.W.3d at 729 ( fi rst citing Ex parte
Pe na , 71 S.W.3d 336, 339 (Te x. Crim. App. 2002) ; and then c iting Baines v. State , 418 S.W.3d 66 3, 6 74 (Tex. App.

— Texarkana 2010, pet. ref ’ d) ). Whether a sentence exceeds the punishment range authorized by stat ute is a legal quest ion that we review
de nov o. See Yaz dchi v . State , 428 S.W.3d 831 , 837 (Tex. Crim. App. 2014) ; Fountain v.
State , No. 03

- 17

- 00699

- CR , 2018 WL 3677871, at *1 (T ex. App.

— Aus tin Aug. 3, 2018, no pet.) (mem. op., not designate d for publicat ion).
B. Improper Punishm ent - Range Enha nc e ment The p unishm ent range for Jobson ’ s charged offense was im properly enhanced.
See Bell , 635 S.W.3d at 645

. Jobson ’ s sex

- offender

- registr at ion off ense is a third

- degree felony

. See Tex. Code Crim. Proc. Ann. art. 62.102 (b)(2)

. The trial cou rt ’ s puni shment charge i nstruc ted the jur y that if i t found both of the ind ictment ’ s enhancement4 paragraphs to be t rue, it must assess Jobso n ’ s pu n ishment wi thin the ra nge for a first

degree felony

— that is , “ confinement

. . . for any term of not less than 5 years or more
than 99 years or life

. ” See Tex. Penal Code Ann. § 12.32. Thus, the charge allowed t he
enhancements to b e “ stacked ” such that the first enhancem en t raised the punishment
range to a second

- degree f elony and the second enha n c ement paragraph raised the
pun ish ment r ange to a first

- de gree felony. T h is was improper

. The T exas Cour t of Cri minal Appeals has made clear that enhancements under
bot h Article 6 2.102 ( c) of the Texas Code of Criminal Procedure and Sect ion 12.42 of
the Tex as Penal Code “ opera te onl y to increase the level o f punishment, not to elevate the grade of the offense of conviction. ” Cra wford v. S tate , 509 S.W.3d 359 , 363 n.7 ( Tex. Crim. App . 2017) (citing Ford v. State , 334 S.W.3d 230, 234

– 35 (Tex. Crim. App. 2011) )

. Th erefore , when , a s here , an indictment alleges multiple
enhancements under Article 62.102 (c) and Pena l Code Sect ion 12.4 2, “ t he first
enhancement does not raise the first offen se itself to a hi gher grade of felony, [rather] every subsequent enhancement

. . . proceed [s] fro m the identical baseline, raising the punishment to exactly the same ‘ next highest d egree of felony ’ as the first
enhancement. ” Id.
B ecause bo th alleged e nhan c ements should have proceeded f rom the same baseline rather than being “ stacked , ” Jobson ’ s offen se sho uld have been punished as a

se cond

- d egree f el ony, s ee id. , t he maximum senten c e for which is 20 years ’5 incarceration , Tex. Penal Code Ann. § 12.33

. Jobson ’ s 25

- year sentence is thus illegal

. S ee O’Reilly , 501 S.W.3d at 728

– 29

. Ac cordingly, we sustain Jobson ’ s sole point

. III. C ONCLUSION Having sust ained Jobson ’ s sole point , we reverse his sentence and remand this
case to the trial court fo r a new punishmen t hearing.

/s/ Elizabeth Kerr Eli zabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : February 8 , 202 4