dissenting on State’s Petition for Discretionary Review.
I join the dissenting opinion of the Presiding Judge and write separately to explain my disagreements with the majority opinion.
The 1993 Legislature enacted Texas Penal Code Section 12.35, revised Section 12.42, and added Section 15 to Texas Code of Criminal Procedure Article 42.12, creating a new category of crime — the state jail felony — and a punishment range for same. The effective date of those sections is September 1, 1994. Many offenses (e.g., possession of less than one gram of cocaine) that, if committed prior to September 1, 1994, were third degree felonies, were reclassified as state jail felonies. Except as provided for in Section 12.35(c), the maximum term of confinement upon conviction of an unenhanced state jail felony is two years in a state jail; the maximum term of confinement upon conviction of an unenhaneed third degree felony is ten years in TDCJ — Institutional Division.
The 1993 Legislature did not, however, make any change to Section 12.42(d), generally known as the habitual offender statute. Section 12.42(d), in its entirety, provides:
(d) If it is shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous offense having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
The Legislature, given the plain language of section 12.42(d), did not exempt an individual charged with a state jail felony, with two prior felony convictions, from also being charged as an habitual offender. Indeed, to hold, as the majority does, the Legislature intended to do so, in my opinion, disregards Section 12.42(e) enacted effective September 1,1995. Section 12.42(e) provides:
(e) A previous conviction for a state jail felony may be used for enhancement purposes under this section only if the defendant was punished for the offense under Section 12.35(c).
The Legislature’s intent was to limit, for enhancement purposes under the habitual offender statute, the use of prior state jail felonies to those described in Section 12.35(c), i.e., those in which an affirmative finding of use of a deadly weapon has been made or where the defendant has been previously convicted of an offense described in Art. 42.12, § 3(g)(a)(l) or § 3(g)(a)(2). This is consistent with the Legislature’s intent to treat more harshly violent state jail felons and less harshly those convicted of nonviolent state jail felonies. Sections 12.42(d) and (e), therefore, provide for treating individuals such as appellants, with two or more prior non-state jail felony convictions (as well as prior convictions for state jail felonies punished under Section 12.35(c)), to be punished as habitual offenders upon conviction of a subsequent state jail felony (or any felony) *95provided the state jail felony was committed prior to January 1,1996.
The 1996 Legislature made significant changes to Section 12.42. First, Section 12.42(d), now Section 12.42(d)(1), was amended to bar its application to an individual charged with a state jail felony punishable under Section 12.35(a). Second, a previous conviction for a state jail felony punished under Section 12.35(a) cannot be used for enhancement purposes under Sections 12.42(b), 12.42(c), or 12.42(d)(1) per Section 12.42(e) as amended effective January 1, 1996. Third, new Sections 12.42(a)(1) and (a)(2) describe the enhancements applicable to an individual convicted of a state jail felony punished under 12.35(a) who has prior convictions for one or more felonies, including state jail felonies. Fourth, new Section 12.42(a)(3) establishes a separate enhancement for an individual convicted of a state jail felony under 12.35(c) who has a prior felony conviction.
The changes to Section 12.42 described above are effective January 1,1996.
Appellants in the present case were charged by indictment with state jail felonies punishable under Section 12.35(a); the offenses were committed prior to January 1, 1996 in each case. Both appellants had two prior final felony convictions, none of which were state jail felonies. Both appellants pled guilty to the charged offenses, and both appellants pled “true” to the enhancement paragraphs in the indictments regarding the prior felony convictions, which were alleged to have been committed in the proper sequential order per Section 12.42(d).
Under the plain language of Sections 12.42(d) and (e) then in effect, appellants were habitual offenders and were subject to be sentenced as such. Had the Legislature intended a different result, it would have amended Section 12.42(d). Further evidence of legislative intent that state jail felons with two or more prior non-state jail felony convictions be subject to punishment as habitual offenders is shown by the Legislature’s enactment of 12.42(e). Section 12.42(e) exempts only nonviolent state jail felonies described in Section 12.35(a) from being used for enhancement purposes under Section 12.42(d), meaning that any felon with two or more prior felony convictions, including convictions for section 12.35(c) “violent” state jail felonies, may be punished as habitual offenders. Where the intent of the Legislature is clear, we should not go beyond the plain meaning of the statute. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).1
Because the State did provide proper notice in the indictments that it intended to prosecute appellants as habitual offenders, the applicable statute is Section 12.42(d), not Art. 42, § 15 which properly applies only to state jail felons sentenced in accordance with Section 12.35(a). As the Presiding Judge demonstrates in his dissent, Art. 42.12, § 15 and § 12.42(d) do not conflict; they apply to different circumstances as follows:
(1) Defendant convicted of a state jail felony punished under Section 12.35(a), no prior convictions: Article 42.12, § 15(a) applies and he will receive community supervision.
(2) Defendant convicted of a state jail felony, with two or more prior felony convictions (assuming enhancement is not sought under Section 12.42(a)(2)), punished under Section 12.35(a): still receives community supervision under Article 42.12, § 15(a) but may be sentenced to up to one year of incarceration in a state jail at the trial court’s discretion under Article 42.12, § 15(d).
(3) Any defendant (except as of January 1, 1996 a defendant charged with a state jail felony punished under Section 12.35(a)) with at least two final felony convictions and the convictions occurred in the sequential order described in Section 12.42(d) and the convictions and proper sequential order are alleged in the indictment and proven by the State at trial: Section 12.42(d) applies and he is subject to sentencing as an habitual offender.2
*96As described in the preceding paragraph, the habitual offender statute places on the State a higher burden of pleading and proof before the defendant may be sentenced as an habitual offender. Should the State elect not to pursue this avenue or if it fails to meet its burdén of pleading and proof, a defendant convicted of a state jail felony, committed before January 1,1996 and punishable under Section 12.35(a), mil be sentenced under Art. 42.12, § 15, even if he has been convicted of two or more prior non-state jail felonies.
The First Court of Appeals affirmed the judgment and sentence of the trial court on the ground that Section 12.42(d) is not applicable to defendants such as appellants convicted of state jail felonies committed before January 1,1996. Because I believe the First Court of Appeals erred, I would reverse.
I respectfully dissent.
. I note that had appellants committed the present offenses on or after January 1, 1996, they could have been punished for a second degree felony under Section 12.42(a)(2), the term of imprisonment for which is two to twenty years in the penitentiary. Tex.Penal Code § 12.33.
. The Fourteenth Court of Appeals came to the same conclusion, in effect, in State v. Perry, 912 *96S.W.2d 244 (Tex.App.-Houston [14th] 1995), finding that a defendant convicted of a state jail felony who has two or more prior felony (other than state jail felony) convictions may be sentenced as an habitual offender provided the State gives notice of its intent to prosecute the defendant as an habitual offender in the indictment and pleads and proves defendant was convicted of two (or more) felonies and the convictions became final in the proper sequential order as provided in Section 12.42(d). As the Court of Appeals held, "Defendants who are not enhanced pursuant to the specific requirements of 12.42(d) still fall within the Art. 42.12, § 15 restrictions. Nor does our interpretation of the statute lead to ‘absurd consequences that the legislature could not possibly have intended,’ as argued by appel-lees. We find nothing remotely absurd about a legislative intent to punish habitual ex-convicts more severely than first offenders.” Perry, supra, at 253.