             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,332



                        EX PARTE PABLO MARTINEZ Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 94CR5200 IN THE 144TH DISTRICT COURT
                           FROM BEXAR 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 injury to a child

and sentenced to twenty years’ imprisonment. The Fourth Court of Appeals affirmed his conviction.

Martinez v. State, No. 04-96-00642-CR (Tex. App.–San Antonio, delivered July 22, 1998).

       Applicant contends that his sentence is unlawful because it is outside the range of punishment

for the offense for which he was convicted. Specifically, he contends that the trial court improperly

enhanced his punishment from a third-degree felony to a second-degree felony based on a finding
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that Applicant committed the offense against the victim in this case based on bias or prejudice

without submitting that issue to a jury.

       In Ex parte Boyd, a case in which the defendant’s second-degree felony punishment for

aggravated assault was enhanced to first-degree felony punishment based on the trial court’s finding

that the defendant selected his victim based on bias or prejudice, this Court held that issues of fact

which increase a defendant’s punishment range must be submitted to a jury. Ex parte Boyd, 58

S.W.3d 134 (Tex. Crim. App. 2001). Because that issue was not submitted to a jury, this Court

found a due process violation based on the United States Supreme Court’s decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000), and granted relief.1 Id. The same scenario has occurred in the

instant case. Applicant was subjected to the next higher range of punishment and he received the

maximum sentence based on the trial court’s finding of bias or prejudice, an issue which was not

submitted to the jury.

       Relief is granted. The sentence in Cause No. 94CR5200 in the 144th Judicial District Court

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

County so that a new punishment hearing may be held.

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

Institutions Division and Pardons and Paroles Division.



Delivered: April 28, 2010
Do Not Publish




       1
          As in this case, Boyd was convicted and sentenced prior to the Supreme Court’s
decision in Apprendi.
