I disagree with the Court's conclusion that the habitual enhancement statute is unambiguous. Nevertheless, the statutory language, while ambiguous, does appear to favor appellee's position. Because there are no extratextual factors clearly calling for a contrary interpretation, I agree with the Court that double enhancement under 12.42(d) is not permissible.⁽¹⁾

Texas Penal Code 12.42 provides in relevant part:

(a)(1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.

(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second degree felony.

....

(d) If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished for imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

The State's contention that an offense that can be enhanced under 12.42(a)(1) or (2) is no longer "punishable under 12.35(a)" -- and so can be enhanced under both 12.42(a) and 12.42(d) -- is a possible interpretation of the statutory language but is not the most reasonable or likely interpretation. All relevant enhancement provisions in 12.42 refer to the "trial of" a felony offense that is punishable or not punishable under 12.35(a). There is some incongruity in saying that a proceeding is the trial of a 12.35(a) offense for some purposes but not for other purposes, especially when the provisions involved operate at the same stage of trial and are found within the same statutory section. There is no indication in the statutory language that the Legislature intended to authorize the stacking of enhancements under 12.42; rather, the language and structure of the statute suggests that the subsections are alternative enhancement provisions. The Legislature could have made clear a contrary intent with the addition of a single word to 12.42(d), as follows:

If it is shown on the trial of a felony offense other than a state jail felony punishable only under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses....

(Italicized language inserted). The addition of the word "only" to the statute would have made clear that other enhancements to a 12.35(a) offense would have made the offense eligible under 12.42(d).

With these comments, I join the Court's opinion insofar as it holds that a state jail felony enhanced under 12.42(a)(2) cannot be enhanced again under 12.42(d).

KELLER, J.

DATE DELIVERED: March 1, 2000

PUBLISH

1. The Legislature has given some guidance as to the factors we may examine in construing the statute. We may consider, among other matters, the (1) object sought to be attained, (2) circumstances under which the statute was enacted, (3) legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) consequences of a particular construction, (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Tex.Gov't.Code, 311.023; Brown v. State, 943 S.W.2d 35, 38 (Tex. Crim. App. 1997). An examination of the above factors in the present case fails to yield any indication of the Legislature's intent.