                                 MEMORANDUM OPINION
                                        No. 04-09-00209-CR

                                    Anthony Ray PERRYMAN,
                                            Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-4078
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: March 24, 2010

REVERSED AND REMANDED

           Appellant Anthony Ray Perryman was convicted by a jury for the offense of possessing a

controlled substance in an amount of less than one gram and subsequently sentenced by the trial

court to eleven years confinement in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, Perryman contends that: (1) his sentence is illegal and void because

the State failed to prove up the two non-state jail felonies necessary in order to punish Perryman

as a habitual offender; and (2) he was denied constitutionally adequate notice of the State’s intent
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to further enhance his punishment. Because the trial court erred in enhancing Perryman’s

punishment to a second-degree felony, we remand this matter to the trial court for further

proceedings consistent with this opinion.

                                  PROCEDURAL BACKGROUND

       The State’s original indictment alleged two enhancements—both state jail felonies for

possession of a controlled substance. On the day of trial, the State presented Perryman with

notice of its intent to use two additional prior convictions in order to enhance Perryman’s

punishment to a second-degree felony: (1) a 1977 felony conviction for voluntary manslaughter;

and (2) the manufacturing/delivery of a controlled substance of less than one gram. Neither

conviction was included in the original indictment for enhancement purposes.

       Perryman was convicted of possession of a controlled substance penalty group one, less

than one gram, which is a state jail felony offense punishable under section 12.35 of the Texas

Penal Code. See TEX. HEALTH & SAFETY CODE § 481.115(b) (Vernon 2003). Following his

conviction, Perryman entered a plea of true to the two enhancement allegations contained in the

original indictment, but objected to the untimeliness of the two new enhancement allegations.

The court overruled the objection, and Perryman subsequently entered a plea of true to the

additional enhancement allegations. This appeal followed.

                           IMPROPER ENHANCEMENT OF SENTENCE

       Perryman contends that the trial court improperly enhanced his sentence due to the

State’s failure to prove the two non-state jail felonies required to enhance his punishment to a

second-degree felony. In order to elevate a state jail felony punishable under section 12.35 to the

punishment level for a second-degree felony under section 12.42, the State must prove the

defendant was previously convicted of two felonies, and the second felony conviction must occur



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after the first felony conviction is final. TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon 2003)

(penalties for repeat and habitual felony offenders).

        In order to enhance a state jail felony conviction to a second-degree felony punishment

under section 12.42(a), the State must allege two sequential non-state jail felonies. Campbell v.

State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001) (under section 12.42(a) of the Texas Penal

Code, “the terms ‘felony’ and ’state jail felony’ are mutually exclusive”). The State’s original

indictment alleged two state jail felonies. Thereafter, the State filed a notice of intent to use two

prior convictions for enhancement of punishment, alleging two different prior convictions: one

state jail felony, and one non-state jail felony conviction. The State alleged three prior state jail

felony convictions, but only one non-state jail felony conviction. Therefore, Perryman’s offense

is not punishable as a second-degree felony.                Because the enhancement of Perryman’s

punishment was improper, his sentence is void. See Ex parte Johnson, 697 S.W.2d 605, 607

(Tex. Crim. App. 1985).

        In its brief, the State concedes that it lacked the requisite number of non-state jail felonies

to enhance Perryman’s sentence to a second-degree felony. Accordingly, the trial court was

bound to assess punishment in accordance with that of a third-degree felony. See TEX. PENAL

CODE ANN. § 12.42(a)(1) (providing that state jail felony, with two prior state jail felonies

convictions is punishable as a third-degree felony). Because the trial court erred in assessing

Perryman’s punishment at the level of a second-degree felony, we remand this matter to the trial

court for a new hearing on punishment. 1

                                                        Rebecca Simmons, Justice

DO NOT PUBLISH

1
   Because Perryman’s range of punishment issue is dispositive in this matter, we need not address his remaining
issue on appeal. See TEX. R. APP. P. 47.1 (requiring concise opinions addressing only those issues “necessary to
find disposition of the appeal”).

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