In Bunton v. State, 136 S.W.3d 355 (Tex. App.--Austin 2004, pet. ref'd), a grand jury indicted Bunton for the state jail felony of evading arrest while using a motor vehicle. Id. at 361. The indictment also alleged the use of a motor vehicle as a deadly weapon and an habitual criminal notice for two prior felony convictions. Id. at 362. Bunton argued that the trial court erred by authorizing the jury to assess his punishment under section 12.42(d) of the penal code. Id. at 360-61. The court disagreed, stating: "the legislature could have exempted all state jail felonies from the habitual criminal status in section 12.42(d). The legislature, however, expressly exempted only those state jail felonies punishable under section 12.35(a), often described by case law as non-aggravated offenses. By doing so, the legislature made aggravated state jail felonies punishable under the provisions of section 12.35(c) subject to the habitual criminal provisions of section 12.42(d)." Id. at 363. The Court held that there was "no merit in Bunton's claim that fundamental error occurred in the jury charge at the punishment phase of the trial when the trial court instructed the jury on the range of punishment under section 12.42(d)." Bunton, 136 S.W.3d at 363.