The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. 74,883 & 74,884
EX PARTE ROBERT FIRO, Applicant
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
FROM NUECES COUNTY
Per Curiam.
O P I N I O N
These are post-conviction applications for writ of habeas corpus filed pursuant to the
provisions of Article 11.07, Tex.Code.Crim.Proc. Applicant pleaded guilty to two felony
thefts and was sentenced to fifteen years in prison. No appeals were taken from these
convictions.
Applicant contends that his sentences are illegal. Applicant's misdemeanor offenses
were enhanced to a third degree felonies because applicant had two prior theft offenses. Penal
Code §31.03(e)(4)(D). The punishment for these third degree felonies were then further
enhanced to second degree because applicant had a prior felony conviction. However, the prior
conviction was also for theft. When misdemeanor theft is enhanced to a felony by the use of
prior theft convictions, additional prior thefts cannot then be used to further enhance the
sentence. Ex parte Firo , 815 S.W.2d 568 (Tex.Crim.App. 1991); Rawlings v. State , 602
S.W.2d 268 (Tex.Crim.App. 1980). Without the prior felony theft for enhancement,
applicant's offenses were only third degree felonies. Applicant's sentences of fifteen years
are outside the range for a third degree felony. This Court previously granted habeas corpus
relief on these convictions. Ex parte Firo , 815 S.W.2d 568 (Tex.Crim.App. 1991) . However,
no action was taken on that grant of relief and applicant's fifteen year sentences remain in
effect. Applicant is entitled to relief.
Relief is granted. The convictions in cause numbers 88-CR-843-H and 88-CR-844-H
from the 347 th District Court of Nueces County are set aside and Applicant is ordered
remanded to the trial court to answer the charge against him.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice,
Institutional Division, Paroles Division, and the Board of Pardons and Paroles.
DELIVERED: February 4, 2004
DO NOT PUBLISH