                                  NO. 07-02-0139-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  APRIL 16, 2003
                         ______________________________

                               JODY LEWIS FORTIER,

                                                      Appellant

                                           v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                NO. 42,646-A; HON. DAVID L. GLEASON, PRESIDING
                       _______________________________

                           ON MOTION FOR REHEARING
                        ________________________________

Before JOHNSON, C.J., QUINN, J. and BOYD, S.J.*

      Pending before the court is the motion of Jody Lewis Fortier, appellant, for

rehearing. Appellant questions whether the judgment is void since he was “sentenced . . .

pursuant to a first degree offense punishment range even though he was only charged with

and found guilty of a second degree felony.” We grant the motion for rehearing, reverse

that portion of the judgment levying sentence and punishment, and remand the cause for

a new punishment hearing.
                                         Background

       In reviewing the record, we see that appellant was charged by indictment with

burglary of a habitation, a second degree felony. See TEX . PENAL CODE §30.02(C )(2). In

an attempt to elevate the applicable punishment to that of a first degree felony, the State

added two enhancement paragraphs in the charging instrument. One involved a purported

conviction for burglary of a building and the other, a conviction for unlawfully using a motor

vehicle (UUMV). At the initial plea hearing, the trial court admonished appellant that the

crime for which he was indicted constituted a second degree felony and involved a term

of imprisonment from two to 20 years. Appellant was also told that if either of the

enhancement allegations were found true, the punishment assessed would be that

applicable to a felony of the first degree, i.e. five to 99 years in prison. Thereafter, the

State announced that it was waiving the enhancement paragraph involving the burglary

of a building, and appellant then plead true to the UUMV conviction. However, no

sentence was levied for the trial court deferred appellant’s adjudication of guilt and placed

him on community supervision.

       Several months lapsed, then the State moved to adjudicate appellant’s guilt. A

hearing was convened. During the proceeding, the trial court admonished appellant that

if his guilt were adjudicated, it could “sentence [him] to the maximum allowed by law for this

offense.” That maximum, according to the court, consisted of “up to 20 years in prison and

a $10,000 fine.”1 Upon being so admonished, appellant pled true to various of the



       1
       The range mentioned happened to be that applicable to a second degree felony. See TEX. PENAL
CODE ANN. §12.33 (Vernon 2002).

                                                2
allegations contained in the State’s motion. At that point, the trial court adjudicated him

guilty of the “offense of burglary of a habitation once enhanced . . . .” (Emphasis added).

And, though the prosecution requested that appellant be imprisoned for 25 years (which

was a term exceeding the maximum allowable for a second degree felony), the trial court

assessed 17 years. Yet, it did so after reiterating that the crime for which he was being

punished was “once enhanced.” (Emphasis added).

                                       Discussion

       Appellant argues that the UUMV conviction used as a basis to enhance his

punishment involved a state jail felony. As such, it allegedly could not be used for

enhancement purposes, and because it was, his sentence was void. We disagree with the

proposition that the sentence was void. However, we hold that the trial court committed

error in considering it for enhancement purposes.

       The crime for which appellant was convicted and sentenced below, i.e. burglary of

a habitation, was a second degree felony.          TEX . PENAL CODE ANN . §30.02(C )(2).

Furthermore, the range of punishment applicable to it consisted of imprisonment from two

to 20 years plus a fine of up to $10,000. Id. at §12.33(a). On the other hand, the range

of punishment applicable to a felony of the first degree consisted of a term of imprisonment

from five to 99 years plus a fine not to exceed $10,000. Id. at §12.32(a). Since the trial

court assessed a term of imprisonment of 17 years and a fine of $1500, it is clear that the

sentence fell within the range applicable to second degree felonies per §12.33(a). Given

that, it did not lack the authority to assess that which it ultimately did, irrespective of

whether appellant’s punishment was enhanced. And, because we cannot say that the trial


                                             3
court lacked the authority to levy such a sentence, neither the sentence nor the judgment

is void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001); Heath v. State, 817

S.W.2d 335, 339 (Tex. Crim. App. 1991) (describing when a sentence is void).

       Yet, it is equally clear that the prior conviction which the prosecution intended to use

for enhancement purposes, i.e. appellant’s conviction for UUMV, constituted a state jail

felony. 2 TEX . PENAL CODE ANN . §31.07(b). Similarly indisputable is that a state jail felony

cannot be used to enhance the punishment generally applicable to a second degree felony

to that of a first degree felony. TEX . PENAL CODE ANN . §12.425(d). So, the trial court could

not lawfully consider the UUMV conviction to enhance appellant’s punishment. Yet, the

record discloses that it did. Again, it twice mentioned the phrase “once enhanced” in

describing the crime for which it found appellant guilty and intended to punish him. And,

given that the State previously waived the other prior conviction mentioned in the

indictment, the court could only have been referring to the UUMV conviction when uttering

the phrase “once enhanced.”

       In short, the record discloses that the trial court considered the state jail felony as

basis to enhance punishment. This it could not do. Thus, it erred. Moreover, nothing of

record provides basis upon which to reasonably infer that the same sentence would have

been levied had the UUMV conviction not been considered. Again, the trial court twice

alluded to the state jail felony when sentencing appellant, and the prosecution had

moments earlier solicited a particular sentence applicable only to a first degree felony.



       2
         Again, two enhancements were averred in the indictment. The one pertaining to burglary of a
building was waived by the prosecutor. The other, pertaining to UUMV, was not.

                                                 4
Additionally, the term of imprisonment levied approached the maximum authorized for a

second degree felony. Consequently, we are not convinced that the error did not have a

substantial and injurious effect or influence on the outcome. So, we cannot find that the

trial court’s consideration of the state jail felony in enhancing appellant’s punishment was

harmless under Texas Rule of Appellate Procedure 44.2(b). Fite v. State, 60 S.W.3d 314,

320 (Tex. App.--Houston [14th Dist.] 2001, pet. ref’d) (holding that consideration of a state

jail felony to enhance punishment was not harmless even though the sentence actually

assessed fell within the lawful range).

        Accordingly, the motion for rehearing is granted. We withdraw our judgment and

the last paragraph of our original opinion wherein we expressly affirmed the trial court’s

judgment. In its place we declare that the portion of the trial court’s judgment sentencing

appellant be and is hereby reversed and that the cause be remanded for a new

punishment hearing.3



                                                         Brian Quinn
                                                           Justice


Publish.




        3
         We do not construe our holding as violating Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001).
The error underlying our decision occurred when the trial court sentenced appellant after adjudicating him
guilty and convicting him of burglarizing a habitat. It did not arise at the initial plea hearing.

                                                    5
