











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,091




EX PARTE JOHN FRANCIS KENNEDY, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 055752-59-A IN THE 59TH DISTRICT COURT
FROM GRAYSON 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 burglary of a
building and sentenced to nine (9) years’ imprisonment.  He did not appeal his conviction.
            Applicant alleges, inter alia, that his prior felony convictions were not committed
sequentially and thus could not be used to enhance punishment to the second degree felony
punishment range.   See Tex. Pen. Code,§ 12.42 (a) (2).  Applicant also alleges that his sentence was
illegal because the nine-year sentence assessed exceeded the maximum sentence authorized by law
for this state jail felony offense. 
            On September 10, 2008, this Court remanded this application because Applicant had alleged
facts which, if true, could entitle him to relief.  In response to this Court’s remand order, the trial
judge obtained copies of the indictments and the judgments in the prior felony convictions which
were used to enhance punishment to the second degree felony punishment range.  On the basis of
this evidence, the trial judge found the facts alleged in the second enhancement paragraph of the
indictment were incorrect.  Applicant’s prior felony convictions were not committed sequentially
and thus could not be used to enhance punishment to the second degree felony punishment range. 
See Tex. Pen. Code,§ 12.42 (a) (2).  The nine-year sentence imposed fell outside the maximum
punishment authorized by law for this state jail felony offense.  The trial judge recommends that
relief be granted.   We agree.    
            Relief is granted.  The judgment in Cause Number 055752-59-A from the 59th Judicial
District Court of Grayson County is hereby set aside, and Applicant is remanded to the custody of
the Sheriff of Grayson County to be resentenced within sixty (60) days. 
            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.
 
Delivered: February 4, 2009
Do not publish
