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Click here for the full text of this decision FACTS:A jury found Dwayne Heath Wooldridge guilty of the offense of aggravated assault with a deadly weapon, which he allegedly committed on March 2, 2002. Wooldridge did not take steps to have the jury assess his punishment, so the trial judge decided the question of punishment. The offense at issue was a felony of the second degree, for which the punishment is imprisonment for not less than two years or more than 20 years. But the indictment also alleged that Wooldridge was a habitual felony offender � that before he committed the aggravated assault he had been convicted twice previously of felonies and that he had committed the second of those offenses after the conviction for the first offense had become final. Such a finding would increase the range of punishment to imprisonment for not less than 25 years or not more than 99 years or life. Each of the previous convictions was for theft of property worth at least $750 but less than $20,000. Wooldridge committed the first offense in 1990 and the other in 1992. At those times, such thefts were felonies of the third degree. If those offenses had been committed after Sept. 1, 1994, they could not have been used to enhance the punishment for the offense in this case, because they would not have been classified as felonies of the third degree. Sept. 1, 1994, was the effective date of a re-enactment of the Texas Penal Code that added a new punishment classification: the state-jail felony, the punishments for which were lower than the previous degrees of felony. Thefts of property worth at least $1,500 but less than $20,000, which had been felonies of the third degree, became classified as state-jail felonies. Thefts of property worth at least $500 but less than $1,500, some of which had been felonies of the third degree, became Class A misdemeanors. Therefore, Wooldridge’s thefts, had they been committed on or after Sept. 1, 1994, would have been either state-jail felonies or Class A misdemeanors under Texas Penal Code �12.42(e). Under the 1994 penalty provisions, previous convictions for most state-jail felonies could not be used to enhance the punishment for a felony offense, nor could convictions for misdemeanors. But authorities did not convict Wooldridge under the 1994 code. His offenses were felonies of the third degree, which under current law may be used to enhance the punishment of subsequent offenses. The trial judge accepted the evidence that Wooldridge had been convicted of third-degree felony thefts in 1990 and 1992 as the indictment alleged, but he ordered the state to brief the legal issue of theft offenses having been reclassified as state-jail felonies after Wooldridge’s previous convictions. After the briefing, the judge ruled: “The two prior felony convictions at the time of convictions were third-degree felonies, but the law has now changed to make those state jail felonies. . . . It’s my belief that the law is, with the intent of the legislature, that these lesser included offenses [sic] should not be used to enhance the minimum to 25 years. Therefore, I am going to find that and assess your punishment at seven years confinement in the Texas Department of Criminal Justice.” The state appealed. The 11th Court of Appeals agreed with the state that the law permitted the use of previous convictions to enhance Wooldridge’s range of punishment to that of a habitual felony offender. But the 11th Court went on to affirm the trial court’s sentence, ruling that sending the case back for resentencing would violate double jeopardy principles. The 11th Court held: “In this case, without findings of”true’ to the enhancement allegations at the punishment hearing, the trial court’s seven-year sentence of Wooldridge was valid and authorized. The sentence was within the statutory range of punishment for second degree felonies. Under the principles of [the CCA's 2005 decision in Harris v. State], an attempt to resentence appellee as a habitual offender would be invalid and unconstitutional.” HOLDING:Reversed and remanded. The CCA disagreed with the 11th Court’s double jeopardy holding. In Harris, the defendant was alleged to be a habitual felony offender because of previous felony convictions. The trial court did not enter a finding that the allegations were true and sentenced Harris to 10 years in prison, which is within the statutory range for a third-degree felony but below the minimum for a habitual offender. The next day, the trial judge recalled the case. The judge explained that the state had previously submitted evidence of prior felony convictions for enhancement purposes and that he found them to be true. The court then resentenced the Harris appellant to 25 years of imprisonment. In Harris, the CCA said: “[T]he facts do not support the contention that [Harris'] sentence was statutorily unauthorized at the time it was pronounced. When [Harris] was sentenced, the trial court did not specifically find the enhancements to be true on the record. . . . This second attempt at sentencing violated Appellant’s rights under the Double Jeopardy Clause.” This case is unlike Harris, the CCA stated, in that the record does support the contention that Wooldridge’s sentence was statutorily unauthorized at the time it was pronounced. The record showed that the trial court believed that the enhancement allegations were true. Its decision not to assess punishment within the enhanced range was based, not on any fact, but on a ruling of law. That ruling was incorrect, the CCA stated. Wooldridge’s case, the court stated, is not an appeal from an acquittal, but an appeal from a noncapital sentencing. The double jeopardy clause, the CCA stated, does not preclude retrial on a prior-conviction allegation in such a case. Thus, the CCA held that the double jeopardy clause of the Fifth Amendment, did not bar the state’s appeal in this case nor would it bar the trial court from reconsidering the issue of punishment on remand. OPINION:Womack, J., delivered the opinion of the court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey and Cochran, JJ., joined. DISSENT:Meyers, J., filed a dissenting opinion, in which Holcomb, J., joined. “I would affirm the decision of the court of appeals, which held that Appellee’s seven-year sentence was valid at the time it was given because it is within the statutory range for a conviction of aggravated assault with a deadly weapon, without enhancements. And, because Appellee was not re-sentenced by the trial judge, as in Harris, we need not address the Double Jeopardy issue. Therefore, I respectfully dissent.”

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