Opinion issued October 7, 2010.
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-01020-CR
James daniel boone, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Chambers County, Texas
Trial Court Cause No. 13035
MEMORANDUM OPINION
A jury convicted appellant, James Daniel Boone, of evading arrest or detention while using a motor vehicle, and the trial court assessed his punishment at ten years’ confinement.[1] In this appeal,[2] we determine whether appellant’s sentence exceeds the maximum punishment authorized for the offense for which he was convicted. Finding that it does, we affirm appellant’s conviction, but reverse the portion of the judgment assessing punishment and remand for a proper assessment of punishment.
BACKGROUND
Appellant’s indictment for the offense of evading arrest or detention while using a motor vehicle included two enhancement paragraphs, alleging convictions for two prior sequential felonies. After the jury returned a guilty verdict, punishment was to the trial court, but the enhancement paragraphs were not read to appellant and he did not enter any plea to them. At the punishment hearing, the trial court made no pronouncement of any findings regarding the enhancement paragraphs, but proceeded to assess punishment at ten years’ confinement. The court’s subsequent judgment indicated that appellant had pled “untrue” to both enhancement paragraphs, and that the court had found the first to be true and the second to be “untrue.”
VOID SENTENCE
Appellant contends that his ten year sentence exceeds the maximum punishment authorized by the penal code for the offense for which he was convicted. Sentences not authorized by law are void. Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991).
The offense of evading arrest or detention while using a motor vehicle is a state jail felony, punishable by confinement in a state jail for any term of not more than two years or less than 180 days and up to a $10,000 fine. Tex. Penal Code Ann. §§ 12.35(a), (b), 38.04(a), (b)(1)(B) (Vernon Supp. 2010). Yet section 12.42(a)(2) of the Penal Code provides that:
If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.
Id. § 12.42(a)(2) (Vernon Supp. 2010). Therefore, the two enhancement paragraphs in appellant’s indictment, if found to be true, would have authorized a second degree felony punishment.[3] Appellant’s punishment of ten years’ confinement in prison was consistent with the punishment range of a second degree felony.
However, the record in this case reflects that trial court found the second enhancement paragraph “untrue,” leaving only one “true” finding on an enhancement allegation.[4] A finding of a single prior felony conviction is not sufficient to enhance punishment to a second-degree felony under section 12.42 (a)(2). See id.
Alternatively, a state jail felony offense is punishable as a third degree offense under section 12.35(c) of the Texas Penal Code if a deadly weapon finding is made or if there is a finding that the defendant previously has been convicted of certain felonies or of a felony whose judgment contains a deadly weapon finding. See Tex. Penal Code Ann. § 12.35(c)(1), (2) (Vernon Supp. 2010) (providing that person found guilty of state jail felony may be punished for third degree felony upon certain showings). Appellant’s punishment of ten years’ confinement was also consistent with the punishment range of a third degree felony. See id. § 12.34 (Vernon Supp. 2010) (providing punishment range of imprisonment for not less than two years and not more than ten years and fine up to $10,000). However, in this case, there was no allegation or finding that appellant used a deadly weapon in the commission of the offense of evading arrest or detention using a motor vehicle. Additionally, the enhancement paragraph that the trial court found to be true was for a prior conviction for possession of a firearm by a felon, which is not one of the prior offenses that can be the basis of an enhancement under section 12.35(c)(2)(A); likewise, the judgment for that conviction does not contain a deadly weapon finding and so cannot be the basis for an enhancement under section 12.35(c)(2)(B). See id. § 12.35(c)(2)(A)-(B); see also id. § 12.42(3)(g)(1) (Vernon Supp. 2010).
Accordingly, the trial court was required to assess appellant’s sentence within the applicable state jail felony range. Appellant’s sentence of ten years’ confinement in prison exceeds the punishment range permissible for a state jail felony and is therefore void. Levy, 818 S.W.2d at 802. We grant appellant’s first issue and need not address the remaining issue.
CONCLUSION
We affirm the trial court’s judgment with respect to appellant’s conviction, reverse the part of the judgment assessing punishment, and remand this case to the trial court for a proper assessment of punishment in accordance with the applicable punishment range. See id. at 803; Tex. R. App. P. 43.2(b); Tex. Code Crim. Proc. art. 44.29(b) (Vernon Supp. 2010).
Jim Sharp
Justice
Panel consists of Justices Jennings, Alcala, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 38.04(a), (b)(1)(B) (Vernon Supp. 2010).
[2] We previously considered this case in an opinion addressing appeals of three of appellant’s convictions, including the present one. See Boone v. State, Nos. 01-04-00870-CR, 01-04-00871-CR, 01-04-00882-CR, 2005 WL 1474454 (Tex. App.—Houston [1st Dist.] June 23, 2005, no pet.) (mem. op.). In that opinion, we noted that, although appellant had filed a notice of appeal for this conviction, along with a clerk’s record and reporter’s record, appellate counsel had raised no issues on appeal as to this particular conviction, and we affirmed. Id. at *4. Appellant was later granted an out-of-time appeal for this conviction by the United States District Court, Southern District of Texas, Houston Division, based on the ineffective assistance of counsel appellant received on his first direct appeal of this case. This appeal ensued.
[3] Punishment for a second degree felony is imprisonment for not less than two years and not more than twenty years and up to a $10,000 fine. Tex. Penal Code Ann. § 12.33(a), (b) (Vernon Supp. 2010).
[4] It appears from the record that the trial court’s finding of “untrue” as to the second allegation was premised on a typographical variance between the indictment and the State’s evidence—the indictment alleged that the prior conviction occurred in 1999, whereas the State’s penitentiary packet showed that the conviction occurred in 1997. This Court has held that such a variance is not fatal to the allegation, absent evidence that the defendant was surprised or prejudiced. Benton v. State, 770 S.W.2d 946, 947–48 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). In this appeal, the State does not complain that the trial court erred by finding the enhancement paragraph not true.