IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. 74,552

 

EX PARTE JACKIE JOHNSON, Applicant



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM LAMB COUNTY
 Hervey, J., delivered the unanimous opinion of the Court.


OPINION


This is a habeas corpus proceeding. A jury convicted applicant of a third degree felony offense of retaliation. See Section 36.06(c), Texas Penal Code. Pursuant to Section 12.42(d), Texas Penal Code, the jury found that applicant had previously been convicted of two "felony offenses" and sentenced applicant to 28 years. See Section 12.42(d) (authorizing a sentence of 25 to 99 years if "it is shown on the trial of a felony offense ... that the defendant has previously been finally convicted of two felony offenses"). Applicant's conviction and sentence were affirmed on direct appeal. Johnson v. State, No. 07-00-0413-CR (Tex.App.-Amarillo, delivered April 30, 2001) (nonpublished).

Applicant has raised various claims in this habeas corpus proceeding. The trial court and the State have recommended granting applicant habeas corpus relief because one of applicant's prior felony convictions that were used for enhancement purposes was a state jail felony forgery conviction which, under our decision in Campbell v. State, cannot be used for enhancement purposes under Section 12.42(d). See Campbell v. State, 49 S.W.3d 874, 877 (Tex.Cr.App. 2001) (unaggravated state jail felonies cannot be used for enhancement purposes under Section 12.42(d). We, therefore, agree that applicant's sentence was improperly enhanced with his prior state jail felony forgery conviction and that he should have been sentenced as a second degree felon under Section 12.42(a)(3), Texas Penal Code.

Habeas corpus relief is granted. That part of the judgment assessing applicant's sentence in cause number 3305 in the 154th District Court of Lamb County is vacated and the cause is remanded for a new assessment of applicant's sentence as a second degree felon pursuant to Section 12.42(a)(3). A copy of this opinion will be forwarded to the Texas Department of Criminal Justice, Institutional Division. All other requested habeas corpus relief is denied.

Hervey, J.



Delivered: April 9, 2003

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