State v. Harris
This text of 921 S.W.2d 376 (State v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION
Appellee, Jerry Harris, was convicted of a state jail felony enhanced by two prior felony convictions. The State appeals, claiming the sentence was unlawful because the trial court should have sentenced appellee as an habitual offender pursuant to section 12.42(d) of the Penal Code. This appeal requires us to examine whether section 12.42(d) controls when the trial court sentenced appellee to a class A misdemeanor pursuant to section 12.44(a) of the Penal Code. We hold that it does not.
Facts
Appellee was charged by felony indictment with the primary offense of delivery of cocaine weighing less than one gram by aggregate weight. The indictment contained two enhancement paragraphs alleging that appel-lee had two prior felony convictions, both for possession of cocaine. Appellee entered a plea of guilty to the primary offense and a plea of true to both enhancement paragraphs. The trial court convicted appellee of the primary offense and assessed punishment at 180 days in jail pursuant to section 12.44(a) of the Penal Code. See Tex. Penal Code Ann. § 12.44(a) (Vernon Supp.1996).1
[377]*377Enhancement of State Jail Felonies
In its sole point of error, the State claims that the sentence imposed by the trial court is illegal. See TexCode Crim.P.Ann. art. 44.01(b) (Vernon Supp.1996) (allowing State to appeal sentence on ground it is illegal). More specifically, the State contends that section 12.42(d) of the Penal Code (the enhancement provision for habitual offenders) applies when, as in this case, an individual (1) is charged and convicted of a state jail felony (primary offense) in which no deadly weapon was used and (2) has been twice previously convicted of felony offenses (enhancement offenses) which are not state jail offenses and each enhancement offense occurred prior to the primary offense in sequential order. We disagree.
In State v. Mancuso, 919 S.W.2d 86 (Tex. Crim.App.1996), the Court of Criminal Appeals affirmed this Court’s decision that a defendant charged with a state jail felony enhanced by two prior felony convictions is subject to punishment under former Tex. Penal Code Ann. § 12.35(a)2 and Tex Code CrimP.Ann. art. 42.12 § 15 (Vernon Supp. 1996). The Court of Criminal Appeals upheld this Court’s rejection of the State’s argument that Tex Penal Code Ann. § 12.42(d)3 required sentencing as an habitual offender.
Mancuso involved two mandatory sentencing provisions. In this case, we are faced with a mandatory provision, section 12.42(d), and a permissive provision, section 12.44(a) (which begins, “A court may punish a defen-dant_”) (emphasis added). If both the mandatory and permissive provisions were applicable, it is reasonable that the mandatory provision would take precedence.
However, in State v. Warner, 915 S.W.2d 873 (Tex.App.—Houston [1st Dist.], 1995, pet. filed), this Court held that section 12.42(d) does not apply to state jail felonies. Thus, the reasoning of Warner is applicable to this case. Accordingly, for the reasons outlined in Warner, we hold that the trial court did not err by sentencing appellant pursuant to section 12.44(a) rather than section 12.42(d). We overrule the State’s sole point of error and affirm the trial court’s judgment.
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Cite This Page — Counsel Stack
921 S.W.2d 376, 1996 Tex. App. LEXIS 1217, 1996 WL 137540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harris-texapp-1996.