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Click here for the full text of this decision FACTS:Phillip Wayne Kersh was charged with felony possession of a controlled substance. The indictment contained two enhancement paragraphs alleging previous felony convictions. Though the trial court acknowledged that the punishment range would be 25 years to life, or 99 years, it deferred adjudication and placed Kersh on 10 years of community supervision. Four years later, after several probation violations, the state moved to adjudicate Kersh’s guilt. The trial court found Kersh guilty, but, ignoring the enhancement paragraphs from the original indictment, sentenced him to 10 years in prison. The state appealed, arguing that the trial court erred by ignoring the enhancement paragraphs. The court of appeals agreed, and reversed the sentence. Kersh sought review, arguing that the appellate court did not have jurisdiction over a state’s appeal. The state responds that it has a right under C.C.P. Art. 44.01(b), which gives the state the right to appeal “a sentence on the ground that the sentence is illegal.” HOLDING:Affirmed. The court explains that under Art. 42.02, a sentence consists of the facts of the punishment itself, including the date of commencement of the sentence, its duration and the concurrent or cumulative nature of the term of incarceration or the amount of the fine. Factors that merely affect these elements are not a part of the sentence. The enhancement paragraphs are part of the sentence. They are not the same thing as, say, a deadly weapons finding, which is an influencing factor on punishment, and is listed separately in a judgment from the sentencing portion. More importantly, under chapter 12 of the Penal Code, the duration of punishments prescribed for habitual and repeat offenders is part of the sentence, just as is the duration of punishments prescribed for other types of offenses addressed in chapter 12. Deadly-weapon findings do not appear in chapter 12. “The legislature’s decision to prescribe the punishments for exceptional sentences and those for ordinary sentences in the same explicit manner supports the conclusion that both are included in the meaning of ‘sentence’ under article 42.02.” Consequently, enhancement findings are part of the sentence, and the state may appeal a trial court’s failure to consider the findings when assessing punishment. The court does not express an opinion on whether the punishment itself was illegal. OPINION:Womack, J. Keller, P.J., Meyers, Price, Johnson, Keasler, Hervey and Cochran, JJ., join. DISSENT:Holcomb, J. The dissent would hold that the appellate court had jurisdiction, but the dissent would also hold that the trial court did not impose an illegal sentence.

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