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 10 years' imprisonment. He did not appeal his conviction.

Applicant alleges inter alia that the enhancement paragraphs were invalid because the State used one state jail felony and one non-state jail felony to enhance, but should have used two non-state jail felonies. He alleges that the 10-year sentence assessed was illegal because it fell outside the applicable state jail felony punishment range. Also, he alleges that counsel rendered ineffective assistance because counsel failed to investigate and challenge the enhancement paragraphs.

The trial judge has entered findings of fact and conclusions of law recommending that relief be granted. However, the record shows that the error in this case could have been cured by substituting the state jail felony conviction used to enhance with another prior felony conviction. Therefore, the State could validly enhance punishment for this state jail felony conviction to the second degree felony punishment range. See Tex. Pen. Code, § 12.42 (a)(2). Accordingly, habeas relief is denied.

Filed: July 1, 2009

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