Summary
holding that the failure of defense counsel to object to erroneous punishment charge authorizing an illegal sentence is ineffective assistance of counsel
Summary of this case from Griffith v. StateOpinion
No. 06-02-00108-CR.
July 3, 2003.
July 8, 2003. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 01F0451-202.
Before Morriss, C.J., Ross and Carter, JJ.
MEMORANDUM OPINION
Ronnie Willis appeals from his conviction for burglary of a building. A jury found him guilty and assessed punishment at twenty years' imprisonment. On appeal, Willis contends that the punishment charge was erroneous, resulting in an illegal sentence, and that, because counsel failed to object to the punishment charge, counsel was ineffective. Willis was tried for a state jail felony pursuant to Tex. Pen. Code Ann. § 30.02(a)(1), (c)(1) (Vernon 2003). An enhancement paragraph alleged two prior felony convictions, but the evidence showed they were actually prior state jail felony convictions. The Texas Court of Criminal Appeals held in Campbell v. State, 49 S.W.3d 874, 878 (Tex.Crim.App. 2001), that the proper degree of enhancement for a state jail felony when the defendant has two prior state jail felony convictions, either sequential or nonsequential, is to a third-degree felony as specified by Tex. Pen. Code Ann. § 12.42(a)(1) (Vernon 2003). The punishment charge in this case assumed the proper enhancement was to a second-degree felony and accordingly specified a range of punishment of between two and twenty years. This is the same error addressed by Campbell. The State has conceded error. We must therefore conclude that the charge was erroneous and that the error resulted in both the potential and the reality of a sentence beyond the range available for this conviction. We are thus required to return the case to the trial court for a new punishment hearing. See Campbell, 49 S.W.3d at 875. We reverse Willis' sentence and remand the cause for a new trial on punishment.
The State also proved one additional felony conviction and another state jail felony conviction. That does not, however, change the analysis in this case.
Tex. Pen. Code Ann. § 12.35 (Vernon 2003).