









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-70,394-01


EX PARTE DAVID PHILLIP CARTER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W05-47920-S(A) IN THE 282ND DISTRICT COURT

FROM DALLAS COUNTY



 Per curiam.
 
O R D E R


	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 burglary of a
building and sentenced to 10 years' imprisonment.  He did not appeal his conviction.
	Applicant alleges inter alia that the enhancement paragraphs were invalid because the State
used one state jail felony and one non-state jail felony to enhance, but should have used two non-state jail felonies.   He alleges that the 10-year sentence assessed was illegal because it  fell outside
the applicable state jail felony punishment range.  Also, he alleges that counsel rendered ineffective
assistance because counsel failed to investigate and challenge the enhancement paragraphs.   
	The trial judge has entered findings of fact and conclusions of law recommending that relief
be granted.  However, the record shows that the error in this case could have been cured by
substituting the state jail felony conviction used to enhance with another prior felony conviction. 
Therefore, the State could validly enhance punishment for this state jail felony conviction to the
second degree felony punishment range.  See Tex. Pen. Code, § 12.42 (a)(2).  Accordingly, habeas
relief is denied. 

Filed: July 1, 2009
Do not publish
