                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00110-CR



          CODY LANG THOMAS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1423904




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                            OPINION
        Cody Lang Thomas pled guilty to theft of property valued at more than $1,500.00 and less

than $20,000.00, a state jail felony.1         He received a twenty-year sentence as the result of

enhancements under Section 12.425(a) of the Texas Penal Code. Thomas appeals his sentence,

arguing that because one of the prior convictions used to enhance his sentence was punishable as

a state jail felony under Section 12.35(a) of the Penal Code—even though it was actually punished

as a third degree felony—use of that conviction to enhance his sentence in this case was invalid.

We sustain Thomas’ point of error and remand this case to the trial court for a new punishment

hearing.

I.      Procedural Background

        A.       The Change of Plea Hearing

        The State originally indicted Thomas on a charge of engaging in organized criminal

activity. Thomas entered an open plea of guilt and waived his right to have a jury assess

punishment, and, in exchange, the State agreed to abandon the indicted organized criminal activity

offense and to seek, instead, a conviction on the lesser-included offense of theft. The State did not

include enhancement allegations in the indictment, but the parties and the trial court expressed a

mutual understanding that the State intended to file a notice of intent to seek punishment

enhancement based on two prior convictions. Accordingly, at the change of plea hearing, the trial

court admonished Thomas as follows:

                 THE COURT: [The State] would just be going forward with the straight
        state jail felony theft case.

1
 See Act of May 27, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current
version at TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (West Supp. 2015)).

                                                       2
                       Now, what that does, though, with two prior -- if they’re right about
       that, two prior penitentiary trips, non state jail, consecutive, then it would take the
       state jail and bump it to a second-degree felony. You understand that?

               [Thomas]: Yes, sir.

       The State then formally offered written plea admonishments and a judicial confession

signed by Thomas. The plea documents noted that Thomas was entering a plea of guilty to the

lesser offense of theft of property and that the offense was a state jail felony punishable as a second

degree felony. In his judicial confession, Thomas admitted that he was guilty of all acts alleged in

the charging instrument “except those acts expressly waived by the State” and that he was “guilty

of . . . any enhancement and habitual allegations set forth in the Indictment, if any . . . .” The trial

court then advised Thomas of the penalty ranges applicable to a state jail felony and a second

degree felony and admonished Thomas of his rights in the proceeding as required by Article 26.13

of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West

Supp. 2014). The trial court accepted Thomas’ guilty plea and found the evidence sufficient to

support a finding of guilty, but deferred any such finding until the sentencing hearing.

       After accepting Thomas’ guilty plea, the trial court enquired about the State’s enhancement

allegations:

              THE COURT: Is it true that prior to the commission of this offense you
       have been to the penitentiary, non state jail, two separate times?

               [By Thomas]: Yes, Sir.

               THE COURT: Was the second one -- the second trip to the penitentiary,
       was that a conviction that you obtained after the first one was final? You had
       already been to the penitentiary once and then you committed a new offense, went
       to the penitentiary again?

               [By Thomas]: Yes, sir.
                                                   3
               THE COURT: Okay. Then the Court will find the enhancement paragraphs
       that the State has put everybody on verbal notice -- and I think to make the record
       clear, they intend to file a written notice of their intention to seek enhancement.
       The Court will find that -- a couple of things -- or several things I should say.

The trial court then stated, “I will find it true, based upon your plea, that you have two prior non-

state-jail-felony convictions which would enhance the punishment range here to 2 to 20, and so

that’s what’s in play here.” The trial court set the matter for sentencing about three weeks later.

       B.      The Sentencing Hearing

       At the sentencing hearing, the State announced that it had filed a written notice of its intent

to enhance Thomas’ punishment range. The notice alleged the following:

               Prior to the commission of the offense in the indictment, defendant was
       finally convicted of the felony offense of Escape While Arrested on [the] 18th day
       of August, 2004, A.D., in the 402nd District Court of Wood County, Texas.

               Prior to the commission of the offense in the indictment, defendant was
       finally convicted of the felony offense of Burglary of a Building, on [the] 24th day
       of June, 2010, A.D., in Cause Number 0921040 on the docket of the 8th Judicial
       District Court of Hopkins County, Texas.

The trial court then questioned Thomas about the enhancement allegations as follows:

              THE COURT: And let’s look at that second paragraph. That’s the escape
       charge in Wood County. Is that one of the felony convictions that you pled true to
       being convicted of and having been sent to the penitentiary?

               [By Thomas]: Yes, sir.

               THE COURT: Okay. The next one is burglary of a building. Now --

               [By the State]: It’s enhanced, Judge.

               THE COURT: It was an enhanced state jail?

               [By the State]: Yes, sir.

                                                 4
               THE COURT: Okay.

               [By Thomas]: Did three years TDC.

                THE COURT: I was thinking that was right. I was thinking it was a state
       jail but you had two prior state jails, so that made what would otherwise be a state
       jail a third degree, and you did three years TDC; is that correct?

               [By Thomas]: Yes, sir.

                THE COURT: Okay. And so those would be the two separate pen trips
       that you referred to when you pled true to, understanding that it takes the current
       state jail and makes it a second degree, correct?

               [By Thomas]: Yes, sir.

At the close of the evidence, the trial court sentenced Thomas to twenty years’ imprisonment,

which is the maximum permissible sentence for a second degree felony. Thomas now argues that

the trial court erred by enhancing his sentence.

II.    Application of Law to the Facts

       A.      Law Governing Enhancement of State Jail Felonies—Section 12.425 of the
               Texas Penal Code

               1.      Introduction

       The concept of enhanced sentencing is not complicated: a defendant charged with an

offense who has previously been convicted of other criminal offenses may be assessed a greater

sentence than a defendant convicted of the same offense who has no criminal history. Thus, the

punishment range of an offense is “enhanced” as the number of the defendant’s prior convictions

increases. Yet, in practice, offense enhancement can be quite complicated because only certain

prior convictions can be combined under the enhancement statutes, and some convictions which

cannot be combined are not easily distinguished.

                                                   5
        In this case, Thomas alleges that the State used an incorrect combination of prior

convictions to enhance his sentence. Thomas’ punishment was enhanced under Section 12.425 of

the Penal Code, which governs enhancement of state jail felony punishments where a defendant

has previously been convicted of other criminal offenses. See TEX. PENAL CODE ANN. § 12.425

(West Supp. 2014). To determine whether Thomas’ sentence was properly enhanced under

Section 12.425, we must first identify the existing categories of felony offenses and then identify

which categories may be combined under the applicable provisions of Section 12.425. Finally, we

must determine whether the enhancement in this case is one of the permitted combinations.

                 2.      Classification of Felonies For Purposes of Enhancement Under
                         Section 12.425

        The Texas Penal Code creates five types of felony offenses: capital felonies, first degree

felonies, second degree felonies, third degree felonies, and state jail felonies. TEX. PENAL CODE

ANN. §§ 12.31–.35 (West 2011 & Supp. 2014). Although all five categories are felony offenses,

the Penal Code distinguishes between state jail felonies and non-state jail felonies for enhancement

purposes. Compare TEX. PENAL CODE ANN. § 12.42 (West Supp. 2015), with TEX. PENAL CODE

ANN. § 12.425 (West Supp. 2015).2

        Although all state jail felonies are classified as felonies, there are two types of state jail

felonies for purposes of enhancement. Compare TEX. PENAL CODE ANN. § 12.35(a) (West Supp.

2015), with TEX. PENAL CODE ANN. § 12.35(c) (West Supp. 2015). A state jail felony punishable

under Section 12.35(a) carries a punishment range of not less than 180 days and not more than two



2
 Enhancement of a non-state jail felony is governed by Section 12.42, and enhancement of a state jail felony is
governed by Section 12.425.
                                                      6
years’ confinement in a state jail. A state jail felony punishable under Section 12.35(c) is punished

as a third degree felony where (1) a deadly weapon was used or exhibited, (2) the defendant was

previously convicted of an aggravated non-state jail felony, or (3) the jury in the prior conviction

made a deadly weapon finding under Article 42.12, Section 3(g) of the Code of Criminal

Procedure. Thus, for simplification, convictions under Section 12.35(a) are classified as non-

aggravated state jail felonies, and convictions under Section 12.35(c) are classified as aggravated

state jail felonies. See State v. Garza, 298 S.W.3d 837, 844–45 (Tex. App.—Amarillo 2009, no

pet.) (“The statute specifies the punishment for regular or non-aggravated state jail felonies in

section 12.35(a) and (b), and for aggravated state jail felonies in section 12.35(c).”); see also State

v. Warner, 915 S.W.2d 873, 877 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d), abrogated on

other grounds by Smith v. State, 960 S.W.2d 372 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)

(“Subsections (a) and (c) clearly divide state jail felonies into two distinct categories, and provide

separate methods of punishment for each. For clarity, we refer to the two distinct categories as

‘regular state jail felonies’ and ‘aggravated state jail felonies.’” (emphasis added)).3

         Section 12.425 establishes the circumstances under which sentencing for a state jail felony

may be enhanced. That statute creates three ways in which to enhance the punishment of a state

jail felony offense. First, under Section 12.425(a), upon conviction of a standard state jail felony,

a defendant may be punished within the third degree felony punishment range if it is shown that



3
 Classification of state jail felonies as either aggravated or non-aggravated is similar to the classification of non-state
jail felony offenses as either 3g or non-3g offenses. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g. While 3g and
non-3g offenses are all felony offenses, different community supervision and parole eligibility rules apply to 3g versus
non-3g offenses. Similarly, while state jail felonies under Section 12.35(a) and aggravated state jail felonies under
Section 12.35(c) are all state jail felonies, different enhancement rules apply to standard state jail felonies than to
aggravated state jail felonies. The nature of those enhancement differences is discussed more fully below.
                                                            7
“the defendant has previously been finally convicted of two state jail felonies punishable under

Section 12.35(a) . . . .” TEX. PENAL CODE ANN. § 12.425(a). Second, under Section 12.425(b),

upon conviction of a standard state jail felony, a defendant may be punished within the second

degree felony punishment range if he or she has “previously been finally convicted of two felonies

other than a state jail punishable under Section 12.35(a)” and the second conviction occurred after

the first conviction became final. TEX. PENAL CODE ANN. § 12.425(b). Finally, under Section

12.425(c), upon conviction of an aggravated state jail felony under Section 12.35(c), a defendant

may be punished within the second degree felony punishment range if “the defendant has

previously been finally convicted of a felony other than a state jail felony punishable under section

12.35(a).” TEX. PENAL CODE ANN. § 12.425(c). Thus, Section 12.425 creates a third type of state

jail felony, an enhanced state jail felony.

        Accordingly, for purposes of enhancement under Section 12.425, the various types of non-

state jail and state jail convictions fall into four groups:

                                     ENHANCEMENT GROUPS
      GROUP NAME                                 GROUP MAKEUP
                                    Capital felonies and first, second, and third degree felonies.
  Non-State Jail Felonies
                                  TEX. PENAL CODE ANN. §§ 12.31(a), 12.32(a), 12.33(a), 12.34(a)

                              State jail felony convictions resulting in incarceration in state jail facility
    Standard State Jail
                                         for not more than two years or not less than 180 days.
        Felonies
                                                  TEX. PENAL CODE ANN. § 12.35(a)

                                   State jail felony convictions punished under third degree felony
   Aggravated State Jail
                                              punishment range due to aggravating factor.
        Felonies
                                                   TEX. PENAL CODE ANN. § 12.35(c)

                              State jail felony convictions punished under either third degree or second
   Enhanced State Jail             degree felony punishment range due to enhancements based on
       Felonies                                  defendant’s prior criminal convictions.
                                                   TEX. PENAL CODE ANN. § 12.425

                                                     8
               3.      Determining Which of the Four Classes of Felonies May be Combined
                       Under Section 12.425

       The statutory language of Section 12.425 is clear that the determinative factor in deciding

whether and how each of the four types of felonies may be utilized to enhance a state jail felony is

whether the prior conviction was “punishable under section 12.35(a).” TEX. PENAL CODE ANN.

§ 12.425. Those prior convictions that are “punishable under section 12.35(a)” may be combined,

and those prior convictions that are not “punishable under section 12.35(a)” may be combined, but

a prior conviction that is “punishable under section 12.35(a)” may not be combined with one that

is not. Therefore, we must determine which of the four categories of prior felony convictions listed

above are “punishable under section 12.35(a)” and which are not.

       Much of the confusion in applying Section 12.425 arises from the failure to differentiate

between non-state jail felonies and enhanced state jail felonies. The two felonies are not the same

for enhancement purposes even if they had the same sentencing range. A state jail felony enhanced

under Section 12.425 may have been punished under that section, but it was still punishable under

Section 12.35(a). By contrast, a non-state jail felony is never punishable under Section 12.35(a).

A state jail felony does not become a non-state jail felony merely because its sentence was

enhanced under Section 12.425; rather, it becomes an enhanced state jail felony. See Garza, 298

S.W.3d at 845 (“because of the jury’s affirmative finding of the use of a deadly weapon during the

commission of the offense, the offense became an aggravated state jail felony punishable under

Section 12.35(c) as a third degree felony. The state jail felony . . . did not, however, become a




                                                 9
third degree felony.”).4 Consequently, a non-state jail felony and an enhanced state jail felony are

not the same. When evaluating whether prior convictions may be combined to enhance a state jail

felony under Section 12.425, it is the classification of the offense that is determinative, not the

classification of the punishment.

         In State v. Webb, the Court of Criminal Appeals reached the same conclusion in

interpreting Section 12.42(d)’s habitual offender enhancement provision and former Section

12.42(a)’s state jail felony enhancement provisions.5 State v. Webb, 12 S.W.3d 808, 809 (Tex.

Crim. App. 2000). In Webb, the State charged the defendant with a non-aggravated state jail felony

in an indictment which also included two enhancement allegations. Id. In the first enhancement

paragraph, the State attempted to enhance the non-aggravated state jail felony to a second degree

felony under the predecessor to Section 12.425. Id. In the second enhancement paragraph, the

State alleged two other sequential, non-state-jail-felony convictions in an effort to enhance Webb’s

punishment range to that of a habitual offender, i.e., not less than twenty five years or more than

ninety-nine years or life in prison. Id.; see TEX. PENAL CODE ANN. § 12.42(d). Thus, in one

indictment, the State attempted to stack two enhancements to convert a non-aggravated state jail




4
 Logically, an aggravated state jail felony is also “punishable under section 12.35(a)” because the jury could find the
enhancement allegations are not true. Yet, Section 12.425(c) does not condition enhancement on whether an
aggravated state jail felony is “punishable under section 12.35(a),” but on whether “punishment may be enhanced
under section 12.35(c).” See TEX. PENAL CODE ANN. § 12.425(c). Thus, if an indictment alleges an aggravated state
jail felony under Section 12.35(c), then it can only be enhanced under Section 12.425(c) even though it is technically
“punishable under Section 12.35(a).”
5
 Texas Penal Code Section 12.42(a)’s state jail felony enhancement provisions were repealed and replaced by current
Section 12.425. Act of May 25, 2011, 82d Leg., R.S., ch. 834, § 2, 2011 Tex. Gen. Laws 2104, 2105; see Samaripas
v. State, 454 S.W.3d 1, 6 n.3 (Tex. Crim. App. 2014).
                                                         10
felony into a habitual non-state jail felony offense with a twenty-five-year minimum sentence.

Webb, 12 S.W.3d at 809.6

            To achieve that double enhancement, the State argued that once a non-aggravated state jail

felony was enhanced under Section 12.42(a),7 it was no longer punishable under Section 12.35(a)

and thus could be enhanced again under Section 12.42(d). Id. at 811. The Court of Criminal

Appeals rejected this argument, noting that “this interpretation isolates the words ‘punishable

under’ from their context and fails to differentiate between an enhanced offense and an enhanced

punishment.” Id. Ultimately, the double enhancement sought by the State was unavailable

because even though the first enhancement would increase the punishment range from a state jail

felony to a second degree felony punishment range, the offense was still punishable under Section

12.35(a), and Section 12.42(d) only applies to “the trial of an offense, other than a state jail felony

punishable under Section 12.35(a).” TEX. PENAL CODE ANN. § 12.42(d).

            In her concurring opinion, Presiding Judge Keller noted that if the Legislature had intended

the result advocated by the State, it could have conditioned the use of prior convictions for

enhancement on whether they were “punishable only under Section 12.35(a).” Id. at 813 (Keller,

J., concurring). “The addition of the word ‘only’ to the statute would have made clear that other

enhancements to a § 12.35(a) offense would have made the offense eligible under § 12.42(d).” Id.

Therefore, according to the Court of Criminal Appeals’ reasoning in Webb, a state jail felony


6
 The key distinction between standard state jail felonies and aggravated state fail felonies is that, unlike the standard
state jail felony offense in Webb, an aggravated state jail felony may be enhanced twice in the same proceeding: once
under Section 12.35(c) and again under Section 12.425(c). See Garza, 298 S.W.3d at 844–45 (Appellant’s state jail
felony offense enhanced to third degree punishment under Section 12.35(c) and then enhanced to second degree
punishment under former Section 12.42(a)(3), which is now Section 12.425(c).).
7
    See supra note 4.
                                                          11
offense is “punishable under Section 12.35(a)” if it is capable of being punished under that

section.8

                    4.     Identification of the Possible Combinations Under Section 12.425

            Under that definition, standard state jail felonies and enhanced state jail felonies are both

punishable under Section 12.35(a) even though enhanced state jail felonies are punished under

different sections. Likewise, both non-state jail felonies and aggravated state jail felonies are not

state jail felony offenses punishable under Section 12.35(a) and will never be.9 Because

enhancement under Section 12.425 involves combining two prior felony convictions of the same

type, then only the following combinations are permissible to enhance a state jail felony under

Section 12.425:




8
 “The distinction between the former ‘punished under Section 12.35(a)’ language and the current ‘punishable under
Section 12.35(a)’ is significant here because Appellant was not punished under Section 12.35(a) but his prior offense
was punishable under that section.” Samaripas, 454 S.W.3d at 8 n.5 (discussing impact of 2011 statutory amendments
to Section 12.42 that repealed former Section 12.42(e) and replaced it with amendment to Section 12.42(d) using
language at issue in this case). Thus, regardless of how the state jail felony was actually punished, what is important
is whether it is capable of being punished under Section 12.35(a).
9
    See supra note 4.

                                                          12
                                 ENHANCING STATE JAIL FELONIES
                                                   2 – standard state jail felony convictions
                                                                                 OR
                  A state jail felony “punishable under
                                                             2 – enhanced state jail felony convictions
         TPC 10
                  Section 12.35(a)” may be enhanced
                                                                                 OR
      § 12.425(A) by proof of one of the following
                  combinations of prior convictions:              1 – standard state jail conviction
                                                                                AND
                                                              1 – enhanced state jail felony conviction

                  A state jail felony “punishable under
                                                           2 – non-state jail felony convictions, where the
         TPC      Section 12.35(a)” may be enhanced
                                                            second one was committed after the first one
      § 12.425(B) by proof of the following
                                                                              became final
                  combination of prior convictions:

                  A state jail felony for which                  1 – non-state jail felony conviction
                  “punishment may be enhanced                                    OR
         TPC
                  under Section 12.35(c)” may be
      § 12.425(C)
                  enhanced by proof of one of the            1 – aggravated state jail felony conviction
                  following prior convictions:


Any combination other than those listed above is ineffective to enhance a state jail felony under

Section 12.425. Having identified the permissible combinations, we can now determine whether

the State’s combination against Thomas was able to enhance his sentence in this case.

           B.      Application of the Law to the Facts

           In this case, the State did not admit any penitentiary packets to demonstrate the nature of

Thomas’ prior convictions for enhancement purposes. Nevertheless, the State identified them on

the record as a prior conviction of escape and a prior conviction of burglary of a building.

Moreover, Thomas admitted that the State’s allegations were true, that he had been sentenced to

serve three years’ imprisonment for the burglary of a building conviction and that the charge was

enhanced because he had two prior state jail felony convictions. He also admitted that the escape



10
     Texas Penal Code.
                                                      13
conviction arose when he “was the only one in the jail at that time, and he asked me if I wanted to

take the trash out, and he sent me out back by myself. . . . And I walked away.” From this

testimony, we can determine that the escape conviction was a non-state jail felony conviction11

and that the burglary of a building conviction was an enhanced state jail conviction.

         As shown above, a state jail felony offense may not be enhanced under any of the

subsections of Section 12.425 with the combination of a non-state jail felony conviction and an

enhanced state jail conviction. Accordingly, the enhanced sentence imposed in this case was not

permitted under Section 12.425, and the sentence imposed against Thomas is outside the

permissible punishment range for a state jail felony. When that occurs, “the case may be remanded

to the trial court for the proper assessment of punishment.” Ex parte Rich, 194 S.W.3d 508, 514

(Tex. Crim. App. 2006) (citing Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991)).

III.     Conclusion

         For the foregoing reasons, we sustain Thomas’ point of error. We affirm Thomas’

conviction, reverse the trial court’s sentence, and remand this case to the trial court for a new

punishment hearing.




                                                      Ralph K. Burgess
                                                      Justice
Date Submitted:            August 17, 2015
Date Decided:              November 20, 2015

Publish



 Escape while “confined or lawfully detained in a secure correctional facility or law enforcement facility” is a third
11

degree felony. TEX. PENAL CODE ANN. § 38.06(c) (West Supp. 2014).
                                                         14
