             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
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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Do Not Publish.
