             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
                                                                                        Kennedy -- 2

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
