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 possession with intent to deliver a controlled substance, namely: cocaine, and was sentenced to forty-two years' imprisonment. His appeal was affirmed by the Second Court of Appeals. Henton v. State, No. 02-95-170-CR (Tex. App.-Ft. Worth, delivered August 18, 1996, pet. ref'd).

Applicant contends that his punishment is illegal due to a void conviction used to enhance his punishment.

Applicant was indicted for possession with intent to deliver cocaine. The indictment listed four previous convictions that were available for enhancement purposes: a robbery conviction, a possession with intent to deliver cocaine conviction, a sexual assault conviction, and a burglary of a building conviction. The robbery and possession with intent to deliver convictions were alleged for the first enhancement and the sexual assault conviction and the burglary of a building conviction were alleged as the habitual enhancement. Due to the dates these convictions became final, only one of the first two and one of the second two could have been used as habitual punishment enhancements. The prosecution decided to go forward with the robbery conviction and the sexual assault conviction as the habitual enhancement paragraphs. The burglary of a building conviction was introduced solely as a prior felony at the punishment hearing. Applicant stood mute on the enhancement counts. The jury at punishment found the robbery and sexual assault convictions to be true and sentenced Applicant to forty-two years' imprisonment.

After his conviction in the instant case, Applicant successfully challenged the sexual assault conviction based on actual innocence. This Court vacated his sexual assault conviction. Ex Parte Henton, AP-75,344 (Tex. Crim. App., delivered February 15, 2006).

Applicant was subjected to the habitual range of punishment. Even without the sexual assault conviction, Applicant could have been subjected to the same range of punishment due to his other conviction for burglary of a building. The use of the sexual assault conviction was harmless error as to the range of punishment. However, the prosecution in Applicant's punishment hearing argued he deserved a harsher punishment due to his violent past offenses, including sexual assault. The trial court conducted a harm analysis under Ex Parte Fierro, 934 S.W.2d 370, 375 (Tex. Crim. App. 1996), finding that due to the nature of the void offense, the extent the error was emphasized by the State, and how much weight the jurors would place on the error, Applicant had shown that the error harmed him and contributed to his punishment by a preponderance of the evidence. We agree. We find, therefore, that Applicant is entitled to relief.

Relief is granted. The sentence in Cause No. 0542298AR in the Criminal District Court Number Three of Tarrant County is set aside, and Applicant is remanded to the sheriff of Tarrant County for a new punishment hearing.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Delivered: June 27, 2007

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