NO. 07-02-0139 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B APRIL 16, 2003

______________________________ JODY LEW IS FORTIER,

Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 47 TH DISTRICT COURT OF POTTER COUN TY; NO. 42,646-A; HON. DAVID L. GLEASON, PRESIDING

_______________________________ ON MOTION FOR REHEARING

________________________________ Before JOHNS ON, C.J., Q UINN, J. a nd BOYD, S.J.* Pending before the court is the m otion of Jody Lew is Fortier, appellan t, fo r rehearing. Appellant questions whet her the judgm ent is void since he was “sentenced . . . pursuantto a first degree offense punishm entrange even though he w as only charged with and found guilty of a second degree f elony.” W e grant the motion for re hearing , reverse thatportion of

the judgment levying sentence and punishm ent, and rem and the cause for a new punishm ent hearing.1 The range menti oned happened to be that applicable to a s econd deg ree felony. See T EX
. P ENAL

C ODE A NN
. §12.33 (Vern on 2002). 2 Backgr ound In reviewing the record, w e see that appellant was charged by indictm ent w it h burglary of a habitation, a second degree felony. SeeT EX . P ENAL C ODE §30.02( C )(2). In
an attem pt to elevate the applicable punishment to that of a first degreefelony, the State added two enhan cem entpar agr aph s in the charging instrum ent. One involved a purported conviction for burg lary of a b uilding and theother, a conviction for unlawfully using a mo tor veh icle (UUMV ). At the initial plea hearing, the trial court admonished appellant that the crime for which he wasindicted constituted a second degree f elony and involved a term of imprisonm ent from two to 20 years. Appellant was also told that if either of th e en hancem entallegations were found true, the punishm ent assessed w ould b e tha t app licab le to a felony of the first degree, i.e. five to 99 y ears in prison. Thereafter, the State announced that it w as waiving the enhancem ent paragraph involving the burglary of a building, and appellant then plead true to the UUM V conviction. How ever, no sentence was levied for the tr ial cou rt deferred appell ant’s adj udicatio n of guilt and placed him on com munity s upervision. Several mo nths lapsed, then the S tate m oved to a djudicate a ppellant’s guilt. A hearing was convened. During the proceeding, the trial court adm onished appellant that if his guilt were adjud icated, it could “sentence [him ] to the m axim um allowed by law for this offense.” That m axim um, according to the court, consisted of “up to 20 years in prison and
a $10,000 fine.” 1 U pon being so adm onished, appellant pled true to various of the3

alle gations cont ained i n the State’s m otion. A t that point, th e trial court adj udicate d him guilty of the “offense of burglary of a ha bitation once enhanced

. . . . ” (Em phasis ad ded). And, though the prosecution requested that appellant be imprisoned for 25 years (which
wasa termexceeding them axim um allowab le for a second degree f elony), t he trial cour

t assessed 17 years. Yet , it did so after reiterating that the crime for which he was being punished was “ once enhanced .” (Em phasis added). Discussion Appellant argues that the UU MV con vi ctio n us ed a s a bas is t o en han ce h is punishment

involved a state ja il felony. As such, it allegedl y c ould not be used for enhancem entpurposes, and because it wa s, his sentence w as void. We di sagree with the pr op os it io n t ha t th e se nt en ce was v oi d. Howe ve r, we hold that the trial co urtcom mitted error i n consider ing it for enhancement purposes. The crime for which appellant was convicted and s entenced below, i.e. burglary of
a habitation, was a second degree felony. T EX . P ENA L C ODE A NN . §30.02( C )(2). Furthermore, th e r an ge of pu ni sh ment ap pl ic ab le to it con si st ed of imp ri so nmen t fr om two to 20 years plus a fine of up to $10,000. Id. at §12.33(a). On the ot her hand, the range of punishment

applicable to a felony of the first degree consisted of a term of imprisonm ent from five to 99 years plus a fine not to ex ceed $10,000. Id. at §12.32(a). Since the t rial court ass ess ed ater m of i m pris onm ent of 1 7 ye arsand a fi ne of $1 500 , it is clear that the sentence fell within the range applicable to second degree felonies per §12.33(a). Given that, i t did not lack the authority to asses s that w hich it ultimately did, irrespective of whether appellant’s punishment was enhanced. And, because w e cannot say

that the trial2 Again, two enhancements were averred i n the indict ment. The one per ta in in g to b ur gl ar y of a building w

as w aived by the p ros ecutor . The oth er, pe rtaining to UUMV, w as n ot. 4 court lacked the authority to levy such a sentence, neither the sentence nor the j udgme nt is void. Nix

v. State, 65 S.W.3d 664, 667-68 (Tex. Crim . App. 2001); Heath v. St ate, 817 S.W.2d 335, 33 9 (Tex . Crim . App. 1991) (d escribing w hen a se ntenceis void). Yet, it is equally clear that the prior conviction which the prosecuti on intende d to use for enhancem ent purposes, i.e. appellant’s conviction for UUMV , con stit ute d a s tate j ail felony. 2 T EX . P ENA L C ODE A NN . §31.07(b). Sim ilarly indisputable is that a state jail felony cannotbe used to enhance the punishm ent generally applicable to a second degree felony to that of a first degree felony. T EX . P ENA L C ODE A NN . §12.425(d). So, thetrial cou rt could notlaw fully consider the UUMV conviction to enhan ce appell ant’s punishment . Yet, the
r ecord discloses that it did. Again, it twice m entioned the phrase “once en hanced” i n describing the crime for which it found appellant guilty and intended to pu ni sh hi m. And, given that the State previ ously waived the oth er prior convi ction ment ioned in the indictment, the court could only have been referring to the U UMV conviction when uttering the phrase “once enhanced. ” In short, the record disclosesthat the trial court considered the state j ail felony as bas is to enhance punishment

. This it could not do. Thus, it erred. Moreover, nothing of record provides bas is up on w hich to r eas ona bly

infer that th e same sentence would have been levied had the UUMV conviction not been considered. Again, the trial cour t twice alluded to the state jail fel ony when sent e ncing appellant, and the prosecution had
mom ents earlier solici ted a particular sen tence ap plica ble onl y to a first degr ee felony.3 W e do not construe our holding as v iolati ng Nix v. State , 65 S.W .3d 664 (Tex. Crim . App. 2001). The error

underlying our deci sion occurred when the trial court sentenced appellant af ter ad jud icat ing him guilty and convicting him of burglarizing a ha bitat. It did n ot aris e at the initial plea h earing

. 5 Additio nall y, the term of imprisonm ent levied approached the m axim um authorized for a second degree felony. Co ns eq ue nt ly , we are not convinced that the error did not have a substantial and injurious effect or influence on the outcom e. So, w e cannot find that

the trial cou rt’ s c ons ider

atio n of thesta te j ail felony in enhancing appellant’s punishment w as harmless under Texas R ule of Appellate Procedure 44.2(b). Fitev. State , 60 S.W.3d 314, 320 (Tex. Ap p.--Houston [14th Dist.] 2001, pet. ref’ d) (holding that consideration of a state j ail felony to enhanc e pu nish m ent w as n ot h arm lesseve n th oug h th e se nte nceact ually assessed fell within the lawf ul range). Accordingl y, the m otion for rehearing is granted. We withdraw our judgm ent and the last paragraph of our original opinion w her ein we expressly affirmed the trial court’s judgm ent. In its place we declare that the por tion of the tr ial cou rt’s judgm ent sentencing appellant be and is hereby reversed and th at t he cause be rem anded for a new punishment hearing. 3

Brian Quinn Justice
Publish.