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Click here for the full text of this decision FACTS:Appellant’s sentence was reversed on appeal, after the court of appeals found that the state failed to give appellant proper notice of its intent to use a prior conviction for enhancement purposes. The case was remanded for a new trial on punishment only. The court of appeals agreed with appellant’s contention that the state failed to give sufficient notice of its intent to use a 1987 felony DWI conviction for enhancement under Texas Penal Code �12.42. The appellate court found that this failure of notice constituted a violation of the constitutional right of due process. Conducting a harm analysis for constitutional error, the court of appeals declined to find the error harmless. The court reversed the assessment of punishment and remanded the case for a new punishment hearing. In addition, the court of appeals instructed that the state would not be allowed to cure the notice problem on remand by giving notice before the new punishment hearing; rather, the state would be limited to using the prior (nonsequenced) convictions set out for enhancement purposes in the indictment. As a result, instead of seeking a sentence in the punishment range of 25 to 99 years or life under �12.42(d), the state would be limited to seeking a sentence in the punishment range of 2 to 20 years under �12.42(a)(3). HOLDING:The judgment of the court of appeals is reversed to the extent that it prohibited the state from using prior convictions for enhancement at the new punishment hearing. In all other respects, the judgment of the court of appeals is affirmed. The state complains only about the court of appeals’ pronouncement that the state will be precluded on remand from using a second prior conviction to enhance appellant’s punishment under �12.42(d). The court of appeals erred in holding that the untimeliness of an enhancement allegation carries over to any retrial of the punishment proceedings. As long as the enhancement is not barred by other considerations, the state is free to use a prior conviction for enhancement if proper notice of its intent to do so is conveyed with respect to the new punishment hearing OPINION:Keller, P.J., delivered the opinion of the court in which, Price, Womack, Keasler, Hervey, Holcomb and Cochran JJ., joined. Meyers, J., dissented. Johnson, J., concurred in the result.

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