                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-16-00112-CR
                              ____________________

                   BROCK ANTHONY CHAMBERS, Appellant

                                        V.

                   THE STATE OF TEXAS, Appellee
_________________________________         ______________________

                On Appeal from the 252nd District Court
                        Jefferson County, Texas
                       Trial Cause No. 15-21913
____________________________________________                      ____________

                           MEMORANDUM OPINION

          In two issues on appeal, Brock Anthony Chambers 1 argues that the trial

court’s sentence exceeds the maximum punishment authorized by law. According

to Chambers, the enhancement counts had no legal effect because the prior

convictions were not sequential. The State filed a brief in which it concedes that




      1
       The clerk’s record indicates that Brock Anthony Chambers is also known
as Brock Chambers.
                                         1
Chambers’s sentence is void as a matter of law. We reverse the trial court’s

judgment and remand for a new punishment hearing.

                                BACKGROUND

      In April 2015, a grand jury indicted Chambers for delivery of a controlled

substance, a state jail felony. The indictment contained two enhancement

paragraphs, which alleged as follows:

      AND THE GRAND JURORS AFORESAID, upon their oaths
      aforesaid, do further present in and to said Court, at said term, that
      before the commission of the primary offense, the Defendant was
      finally convicted of the felony of Possession of a Controlled
      Substance and was finally convicted of such felony on November 13,
      2007, in Cause No. 96378, in the 252nd Judicial District Court of
      Jefferson County, Texas,

      AND THE GRAND JURORS AFORESAID, upon their oaths
      aforesaid, do further present in and to said Court, at said term, that
      before the commission of the primary offense, the Defendant was
      finally convicted of the felony of Possession of a Controlled
      Substance and was finally convicted of such felony on November 13,
      2007, in Cause No. 07-01691, in the 252nd Judicial District Court of
      Jefferson County, Texas[.]

A jury found Chambers guilty of the offense of delivery of a controlled substance,

a state jail felony. See Tex. Health & Safety Code Ann. § 481.112(b) (West 2010).

Chambers pleaded true to both enhancement allegations. See Tex. Penal Code Ann.

§ 12.425(b) (West Supp. 2016). The trial court assessed punishment at ten years in

prison.

                                        2
                                    ANALYSIS

      The jury found Chambers guilty of a state jail felony. A defendant found

guilty of a state jail felony shall be punished by confinement in a state jail for any

term of not more than two years or less than 180 days and by a fine not to exceed

$10,000. Tex. Penal Code Ann. § 12.35(a), (b) (West Supp. 2016). For a state jail

felony to be punishable as a second degree felony, the State must show that the

defendant has been previously convicted of two felonies, and they must be

sequential. See id. § 12.425(b). Thus, the State must prove beyond a reasonable

doubt that the defendant’s second previous felony conviction was committed after

the defendant’s first previous felony conviction became final. Jordan v. State, 256

S.W.3d 286, 291 (Tex. Crim. App. 2008). If the State fails to show that the

offenses were committed in the proper sequence, then the defendant’s sentence

may not be enhanced under the habitual offender statute. Id. We also note that

when the record affirmatively reflects that the enhancement itself is improper, the

conviction cannot be used to enhance punishment even when the defendant had

pleaded true to the enhancement paragraphs. Ex parte Rich, 194 S.W.3d 508, 513-

14 (Tex. Crim. App. 2006).

      Because the two enhancement paragraphs in Chambers’s indictment allege

offenses that became final convictions on the same day and thus are not sequential,

                                          3
Chambers’s cause is only punishable as a state jail felony. See Jordan, 256 S.W.3d

at 291. We conclude that Chambers’s sentence may not be enhanced under the

habitual offender statute and that his ten-year sentence exceeds the maximum

penalty allowed for a state jail felony. See id.; see also Tex. Penal Code Ann. §

12.35(a). A sentence outside the prescribed range of punishment is void and illegal.

Musgrove v. State, 425 S.W.3d 601, 615 (Tex. App.—Houston [14th Dist.] 2014,

pet. ref’d). When reversible error occurs in the punishment phase of trial, the

appellant is entitled to a new punishment trial. Tex. Code Crim. Proc. Ann. art.

44.29(b) (West Supp. 2016); see also Musgrove, 425 S.W.3d at 615. We sustain

Chambers’s issues on appeal and reverse the trial court’s judgment and remand the

cause for a new punishment trial.

      REVERSED AND REMANDED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice



Submitted on December 29, 2016
Opinion Delivered January 11, 2017
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

                                         4
