              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-55,249-02


                           EX PARTE ERIC RAY PRICE, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. CR07808-B IN THE 220TH DISTRICT COURT
                           FROM HAMILTON 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of assault and

sentenced to fifty years’ imprisonment. The Tenth Court of Appeals affirmed his conviction. Price

v. State, No. 10-13-00168-CR (Tex. App.—Waco Feb. 27, 2014) (not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance. Strickland v.

Washington, 466 U.S. 668 (1984). He complains that counsel failed to investigate the prior

convictions used to enhance the punishment range from that of a third-degree felony to that of a
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habitual felon. The trial court finds that one of the prior convictions could not be used for

enhancement purposes because it was not final. Jordan v. State, 256 S.W.3d 286, 290-91 (Tex.

Crim. App. 2008).

       The trial court has determined that trial counsel’s performance was deficient and that such

deficient performance prejudiced Applicant. According to the trial court, regarding deficient

performance, “Trial counsel had a duty to research Texas enhancement law, investigate [Applicant’s]

cases, and prevent him from pleading ‘true’ to an enhancement allegation in which the conviction

was not final.” Regarding resulting harm, the trial court finds, “[Applicant] was sentenced to 50

years’ confinement, which is 40 years more than the maximum allowed for a third degree felony.

Even if [Applicant’s] punishment were enhanced . . . by the other felony conviction, the maximum

punishment would have been 20 years’ confinement, thirty years less than the sentence [Applicant]

received.”

       Relief is granted. The judgment in Cause No. CR-07808 in the 220th District Court of

Hamilton County is set aside, and Applicant is remanded to the custody of the Sheriff of Hamilton

so that the trial court may conduct a new punishment hearing. Ex parte Rich, 194 S.W.3d 508 (Tex.

Crim. App. 2006). The trial court shall issue any necessary bench warrant within 10 days after the

mandate of this Court issues. Applicant’s remaining claims are denied.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: November 25, 2015
Do not publish
