











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,240




EX PARTE KEVIN DEWAYNE FLOWERS, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 78743-A IN THE CRIMINAL DISTRICT COURT
FROM JEFFERSON COUNTY



           Per curiam.
 
OPINION

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of aggravated
assault and sentenced to thirty (30) years’ imprisonment.  The Ninth Court of Appeals affirmed his
conviction. Flowers v. State, No. 09-02-348-CR, (Tex. App. – Beaumont, 2004, no pet.) (not
designated for publication). 
            Applicant alleges inter alia that the State used a conviction with a probated sentence to
enhance punishment to the habitual offender punishment range under  Tex. Pen. Code, § 12.42 (d). 
            The trial court has entered findings of fact and conclusions of law recommending that relief
be granted.  We agree.  The record reflects that the State used a conviction with a probated sentence
to enhance punishment to the habitual offender punishment range under  Tex. Pen. Code, § 12.42
(d).  Applicant did not have another prior felony conviction which the State could have used to
properly enhance punishment when he committed the challenged offense.  Applicant is entitled to
a new punishment trial. 
            Relief is granted in part.  The judgment in Cause No. 78743-A in the Criminal District Court
of Jefferson County is set aside and Applicant is remanded to the custody of the Sheriff of Jefferson
County so that a new punishment trial can be conducted. 
            All other relief is denied.  
            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.

Delivered: October 21, 2009

Do Not Publish. 



