Hartsell, Ex Parte Bradley Dale

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,101 EX PARTE BRADLEY DALE HARTSELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER 3730 IN THE 109TH JUDICIAL DISTRICT COURT

ANDREWS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, Texas Code of Criminal Procedure. Applicant was convicted of forgery, and punishment was assessed at confinement for six years. No direct appeal was taken. Applicant contends that his sentence is illegal because it was improperly enhanced. A claim that a sentence is not authorized by law because it exceeds the statutory maximum may be raised at any time. See Ex parte Pena, 71 S.W.3d 336, 337 at n. 2 (Tex. Crim. App. 2002). Applicant was convicted of a state jail felony and his sentence was enhanced to a second degree under Texas Penal Code, § 12.42(a)(2). The terms "felony" and "state jail felony," as used in subsection 12.42(a), are mutually exclusive. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001). Since subsection 12.42(a)(2) only refers to sequential felonies, the priors must both be non-state jail felonies for Applicant to be subject to a second degree enhancement. See Id. Although the indictment alleged two prior sequential felonies, one of the priors was a state jail felony; thus, Applicant's sentence could not have been enhanced to a second degree. The trial court recommends that relief be granted.

Relief is granted. The conviction in cause number 3730 from the 109th Judicial District Court of Andrews County is set aside and Applicant is ordered remanded to the trial court to answer the charges against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, correctional divisions.

DELIVERED: February 16, 2005

DO NOT PUBLISH