The State of Texas has appealed the United States District Court's decision granting a writ of habeas corpus to the petitioner, Ray French. The petitioner requested habeas corpus relief on the grounds that he was denied effective assistance of counsel at both his state trial and on appeal and that the state trial court's decision to enhance his sentence was based on insufficient evidence. The district court granted the writ on the claim of ineffective assistance of counsel on appeal. We affirm the district court's decision on the basis of the petitioner's claim of insufficiency of the evidence to support his sentence.

I. FACTS AND PROCEDURAL BACKGROUND.

The petitioner was indicted for burglary. The indictment also alleged, for the purpose of enhancement of the sentence, two prior felony convictions: a 1964 conviction and a 1966 conviction, both for theft of over $50.00. A jury found the petitioner guilty of the primary offense alleged in the indictment.

At the sentencing phase of the petitioner's trial, the State attempted to punish him as an habitual offender under section 12.42(d) of the Texas Penal Code, Tex. Penal Code Ann. Sec. 12.42(d) (Vernon 1974).1 The State introduced into evidence two pen packets from the Texas Department of Corrections. The pen packets revealed that the petitioner had been sentenced on November 25, 1964, for theft of over $50.00 and sentenced on November 9, 1966, also for theft of over $50.00. While these exhibits showed the respective dates on which the two convictions had been obtained, neither exhibit specified the date on which the petitioner had committed the offense that led to the second conviction. No other evidence was presented to the jury showing the date on which the second offense occurred. The jury found the allegations concerning the two prior convictions to be "true" and the district court sentenced the petitioner to a term of life in the state penitentiary.

The petitioner's trial attorney did not complain of the State's failure to prove the date on which the second prior offense occurred. Similarly, he did not raise the issue in the petitioner's appeal to the Texas Court of Criminal Appeals. The petitioner submitted a supplemental pro se brief to the state appellate court claiming that the evidence was insufficient to support his sentence and that he had been denied effective assistance of counsel. The Court of Criminal Appeals disposed of the petitioner's claims, stating that it had examined both grounds of error and found them to be without merit. French then filed three pro se applications for a writ of habeas corpus in state court, all of which were denied.

II. INSUFFICIENCY OF THE EVIDENCE.

In a carefully reasoned opinion, the federal magistrate, who originally heard the petitioner's claims, recognized that the State had failed to produce sufficient evidence of the petitioner's habitual offender status under section 12.42(d) of the Texas Penal Code, Tex. Penal Code Ann. Sec. 12.42(d) (Vernon 1974), during the sentencing phase of the petitioner's trial. The State's evidence demonstrated that the petitioner had been convicted of the second felony after he was convicted of the first, but there was no evidence that he had committed the second felony after the conviction for the first became final, as required by the statute. See Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977); Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976).

The magistrate, however, recommended that the district court grant the writ of habeas corpus on the basis of the petitioner's claim of ineffective assistance of appellate counsel, rather than on the evidentiary claim. He suggested this disposition of the case in order to avoid the double jeopardy implications involved in a finding of insufficiency of the evidence. See Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978). The district court then granted the writ on the recommended grounds, conditioned on the State's failure to demand a new trial within ninety days of its order.2

The magistrate should, however, have reached a determination on the petitioner's claim of insufficiency of the evidence before he considered the alleged ineffectiveness of counsel precisely because of the double jeopardy implications involved. The double jeopardy clause would prohibit the resentencing of the petitioner under section 12.42(d) if the State failed to provide sufficient evidence of habitual offender status at the first trial. Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1981), cert. granted, --- U.S. ----, 102 S. Ct. 2927, 73 L. Ed. 2d 1328 (1982).3 Therefore, a decision to grant the writ on the grounds of insufficiency of the evidence as to one of the "priors" covered in his indictment would have spared the petitioner the necessity of having to go through a second enhancement to life proceeding on the basis of that prior.4 Where a habeas petitioner's allegations raise the possibility of a violation of the double jeopardy clause, the court must reach the merits of his claim if it is to protect the petitioner's right not to be "subjected to the hazards of trial and possible conviction more than once for an alleged offense," Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 (1957), which the prosecution has initially failed to prove. Burks, supra.5

We note at the outset that, in reviewing the petitioner's application for habeas corpus relief on the grounds of insufficiency of the evidence at the sentencing phase, we are not bound by the state appellate court's affirmance of the petitioner's sentence in French v. State, 592 S.W.2d 638 (Tex.Cr.App.1980). While a state appellate court's judgment affirming a defendant's sentence in state court is entitled to our deference, the federal courts have a duty to make their own determination of the sufficiency of the evidence in a federal habeas corpus challenge. See Jackson v. Virginia, 443 U.S. 307, 323, 99 S. Ct. 2781, 2791, 61 L. Ed. 2d 560 (1979). Our standard of review is whether the record demonstrates that no rational trier of fact could have found beyond a reasonable doubt the facts necessary to support the life sentence. Id.6

As the court below found, the record in this case definitively shows that the State introduced no evidence of the date on which the second prior felony alleged for the purpose of enhancement was committed. The chronology of the commission of the prior felonies is an essential element of section 12.42(d). See Hickman, supra; Wiggins, supra. The jury could not possibly have found the proper chronology of prior convictions required for a life sentence under section 12.42(d) where the State produced no evidence of the date on which the second felony was committed. Accordingly, we must affirm the district court's grant of habeas corpus relief, on the ground that the petitioner's life sentence was not supported by sufficient evidence.

We hold further, as required by our prior decision in Bullard, supra, that because the petitioner was once subjected to an enhancement proceeding where the State failed to produce sufficient evidence of habitual offender status to support a life sentence, the double jeopardy clause bars a second trial-like enhancement proceeding on the basis of the one prior felony insufficiently proven at the earlier trial.7 In light of our holding that the writ should have been granted on the ground that there was insufficient evidence to support the petitioner's enhanced life sentence, we need not reach the question of whether French was denied effective assistance of counsel during the sentencing and appellate phases of his trial.

That portion of the district court's decision granting a writ of habeas corpus unless the State elects to retry the petitioner within ninety days is accordingly

AFFIRMED.