This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.
Petitioner's sole contention in this application is that a prior conviction was improperly used on two occasions for enhancing petitioner's punishment. See Art. 62, V.A. P.C. (Old Penal Code), and V.T.C.A. (Penal Code), Sec. 12.42(a).
The trial court, after considering petitioner's application, made the following findings of fact:
The trial court entered findings of fact and conclusions of law holding that since petitioner had been thus convicted twice as a second offender, his sentence in Cause No. 215,574 was therefore excessive. We agree.
It has long been the rule in this State that prior convictions cannot be used more than once to enhance punishment. Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940); Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr. App.1973). This rule has been subject to the exception that "the use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to fix the status of an habitual criminal." Ex Parte Calloway, 151 Tex.Cr.R. 90, 94, 205 S.W.2d 583, 586 (1947); Mayo v. State, 166 Tex. Cr.R. 470, 314 S.W.2d 834 (1957); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967).
The prohibition against the multiple use of prior convictions to enhance punishment has been held to be applicable to prosecutions utilizing the provisions of Section 12.42(c) and 12.42(d) of the New Penal Code. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1975).
We therefore hold that the State was barred from using the same prior conviction for second offender enhancement under the provisions of Sec. 12.42(a) where said prior conviction had been previously used successfully under Art. 62, V.A.P.C. (Old Code).
The State does ask, however, that the case be remanded to the trial court for another sentencing hearing since the original twelve-year sentence was assessed by the court, without intervention of a jury.
IT IS SO ORDERED.