I have a defendant charged with Theft with 2 prior convictions. He has 3 seperate pen trips, 1 for burglary, the other 2 for Theft offenses. The defense attorney has presented me with case law that says we cannot use felony theft convictions to enhance a SJF Theft that is a felony merely because of the 2 prior misdemeanor theft convictions. I have searched and cannot find case law that supports using the felony theft convictions to enhance. Does anybody know about case law or statutory constructions that will help me enhance this guy beyond a State Jail Felony? The following are the cases I've seen:
Rawlings v. State, 602 S.W.2d 268 (CCA 1980)
Freeman v. State, 970 S.W.2d 55 (Tex.App.-Tyler 1998)
Wamsley v. State, WL 428881 (Tex.App.-Dallas 2002)
Wamsley v. State, WL 428865 (Tex.App.-Dallas 2002)

Thanks for any help.