Temeko LaKeith Leday v. The State of Texas--Appeal from 260th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-199 CR
____________________
TEMEKO LAKEITH LEDAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D060027-R
MEMORANDUM OPINION

A jury convicted appellant, Temeko Lakeith LeDay, of the offense of unauthorized use of a vehicle, a state jail felony. See Tex. Pen. Code Ann. 31.07(a), (b) (Vernon 2003). Finding enhancement evidence true, the jury assessed LeDay's punishment at confinement in the Texas Department of Criminal Justice-Institutional Division for a term of twenty years, and additionally assessed a fine of $10,000. The lone issue for our consideration is whether the trial court erred in providing the jury with an improper punishment option for consideration in assessing LeDay's punishment. The State's reply all but concedes reversible error.

The facts pertaining to the issue are not in dispute. During the punishment phase of the trial, the State introduced into evidence two non-sequential state jail felony convictions from 2003, both for possession of a controlled substance. Additionally, the State introduced one prior second-degree felony conviction from 1996. The trial court submitted a proposed punishment charge which provided the jury with the option of punishing LeDay for a second- degree felony, a third-degree felony, or for a state jail felony. Each punishment option was predicated on the number of prior convictions presented by the State found to be "true" by the jury. LeDay objected to the proposed second-degree punishment option as being unauthorized by the Texas Penal Code because "the maximum range of punishment applicable to a nonaggravated state jail felony is between 2 and 10 years and not 2 and 20 years." The trial court overruled LeDay's objection. As noted above, the jury punished LeDay for a second-degree felony.

As discussed in its brief, the State's theory of punishment under this scheme intended to apply the sequential nature of LeDay's three prior convictions to particular provisions in the Texas Penal Code addressing punishment of state jail felony offenders. The provisions in question are found in Tex. Pen. Code Ann. 12.35 (Vernon 2003), 12.42 (Vernon Supp. 2006). The pertinent parts of these sections appear in the Code as follows:

12.35. State Jail Felony Punishment

 

(a) Except as provided by Subsection (c), an individual adjudged 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.

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

 

(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree if it is shown on the trial of the offense that:

 

(1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

 

(2) the individual has previously been finally convicted of any felony:

 

(A) listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or

 

(B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.

 

. . . .

 

12.42. Penalties for Repeat and Habitual Felony Offenders

 

(a)(1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.

(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

 

(3) If it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.

. . . .

 

(e) A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).

 

Id. Under these sections, the State intended to use the 2003 state jail felony convictions to enhance the instant offense to a third-degree felony under section 12.42(a)(1), and then continue to raise LeDay's punishment exposure to a second-degree felony by using his 1996 felony conviction to further enhance the section 12.42(a)(1) enhancement pursuant to subsection 12.42(a)(3). In its brief, the State cites to Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001), and State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000), candidly admitting "after reading the language and intent of these cases [the State] feels that the enhancement may be against the wishes of the Court of Criminal Appeals." We agree.

In both Campbell and Webb, the Court of Criminal Appeals classified state jail felony offenses as either "aggravated" or "unaggravated"/"non-aggravated". See Campbell, 49 S.W.3d at 875, 877; Webb, 12 S.W.3d at 809, 811. Whether or not a state jail felony offense is aggravated or unaggravated depends upon whether the offense is punishable under subsection 12.35(a), reserved for unaggravated state jail offenses, or punishable under subsection 12.35(c), reserved for aggravated state jail offenses. See Webb, 12 S.W.3d at 811 ("[A]ppellee was tried for a non-aggravated state jail felony, i.e., a state jail felony punishable under 12.35(a). . . . Both 12.42(a)(3) and 12.42(d) allow for enhanced punishment of an aggravated state jail felony (i.e., a 12.35(c) state jail felony)[.]").

In Campbell, the State enhanced an unaggravated state jail felony offense with two prior sequential state jail felony convictions. Campbell, 49 S.W.3d at 875. The trial court provided the jury with punishment instructions for a second-degree felony, pursuant to subsection 12.42(a)(2). Id. On appeal, the court of appeals affirmed, finding the term "felonies," as used in subsection 12.42(a)(2), to include state jail felonies. Id. Applying the rules for statutory interpretation, the Court of Criminal Appeals reversed, holding the terms "felony" and "state jail felony" as used in subsection 12.42(a) "are mutually exclusive; a defendant charged under subsection 12.35(a) who has previously acquired only state-jail felony convictions, whether sequential or non-sequential, must be punished for a third-degree felony under subsection 12.42(a)(1), rather than a second-degree felony under subsection 12.42(a)(2)." Id. at 878. Immediately below this holding, the Court made the following observation, albeit in the form of dicta:

Finally, we note the lack of a provision in the current statute for enhancement for an offender under subsection 12.35(a) who has two previous non-sequential, unaggravated non-state jail felony convictions. The statute as written also does not impose an increased punishment for offenders who have two previous convictions in the form of both a single prior state jail felony and a single prior non-state jail felony. If such lack of enhancement in either case is in fact an oversight in the statute, it is the business of the legislature, rather than this court, to correct it.

 

Id.

For our purposes, section 12.42(a)(1) does indeed provide specific language permitting LeDay's unauthorized use of a vehicle conviction, an unaggravated state jail felony, to be punished as a third-degree felony with proof of his two 2003 state jail felony convictions. See Tex. Pen. Code Ann. 12.42 (a)(1). However, section 12.42 does not provide a further increase of punishment exposure for an unaggravated state jail felony conviction, already enhanced to a third-degree felony under subsection 12.42(a)(1). On the other hand, subsection 12.42(a)(2) does subject an unaggravated state jail felony conviction to second-degree felony punishment, but only upon proof of two sequential felony convictions, other than state jail felonies. See Campbell, 49 S.W.3d at 878. Aside from the 1996 felony conviction, the record before us does not contain proof of a second qualifying felony conviction, sequential or otherwise. Thus, based upon the statutory analyses discussed in Campbell and Webb, we must conclude that the trial court's punishment instruction permitting the jury to consider the second-degree punishment range was reversible error as the punishment range was not statutorily authorized. "Sentences not authorized by law are void." Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991). We sustain LeDay's appellate issue. We reverse that portion of the judgment pertaining to the assessment of LeDay's punishment and remand this cause to the trial court for a new punishment hearing only. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon 2006).

REVERSED AND REMANDED.

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CHARLES KREGER

Justice

 

Submitted on February 22, 2007

Opinion Delivered July 11, 2007

Do not publish

 

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