Enrique Sanchez Salazar v. State ( 2015 )

ACCEPTED
13-14-00563-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/27/2015 10:09:20 PM
DORIAN RAMIREZ
CLERK
No. 13-14-00563-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI – EDINBURG, TEXAS
1/27/2015 10:09:20 PM
DORIAN E. RAMIREZ
Clerk
ENRIQUE SANCHEZ SALAZAR,
Appellant
v.
STATE OF TEXAS
Appellee
ON APPEAL FROM THE 156TH DISTRICT COURT
OF LIVE OAK COUNTY, TEXAS
CAUSE NO. L-14-0025-CR-B
APPELLANT’S BRIEF
Abner Burnett
Texas Bar No. 03425770
Email: aburnett@trla.org
Bee County Regional Public Defender
331A North Washington
Beeville, TX 78102
Tel: (361) 358-1925
Fax: (361) 358-5158
Lead Attorney for Appellant
ORAL ARGUMENT REQUESTED
LIST OF PARTIES
Appellant
Enrique Sanchez-Salazar
Appellee
The State of Texas
Defense Counsel at Trial State’s Attorney at Trial
Michelle Ochoa Mr. Jose Aliseda
SBOT: 24032428 District Attorney
SBOT: 01012900
Jamie Dickson
SBOT: 24072066 Mr. George James Sales, III
Assistant District Attorney
Beeville Regional Public Defender SBOT: 17531960
331A North Washington
Beeville, Texas 78102 Mr. Jon W. West
Assistant District Attorney
Rachel Littrell Cook SBOT: 00786505
SBOT: 24078367
Texas RioGrande Legal Aid, Inc. 156th Judicial District Attorney
316 S. Closner 111 St. Mary’s St., Ste 203
Edinburg, Texas 78539 Beeville, Texas 78102
Appellant’s Attorney on Appeal State’s Attorney on Appeal
Abner Burnett Jose Aliseda
SBOT: 03425770 District Attorney
(or his designated representative)
Celestino Gallegos SBOT: 01012900
SBOT: 24040942
156th Judicial District Attorney
Beeville Regional Public Defender 111 St. Mary’s St., Ste 203
331A North Washington Beeville, Texas 78102
Beeville, TX 78102
ii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... vi
STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
ISSUES PRESENTED...............................................................................................1
STATEMENT OF PROCEDURAL HISTORY........................................................3
STATEMENT OF FACTS ........................................................................................6
I. SUMMARY OF TESTIMONY AND EXHIBITS PRESENTED DURING
THE GUILT/INNOCENCE PHASE OF TRIAL.................................................6
II. THE TRIAL COURT REFUSED TO ACCEPT AN AGREED JURY
CHARGE CONTAINING AN INSTRUCTION ON THE LESSER
INCLUDED OFFENSE OF EVADING ON FOOT UNDER TEX. PEN. CODE
§ 38.04 (B)(1)......................................................................................................12
III. SUMMARY OF THE EVIDENCE AND THE TRIAL COURT’S
FINDINGS DURING THE PUNISHMENT PHASE. .......................................14
SUMMARY OF ARGUMENT ...............................................................................18
STANDARD OF REVIEW .....................................................................................20
ARGUMENT ...........................................................................................................22
I. THE TRIAL COURT ERRED BY REFUSING TO INCLUDE AN
INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF EVADING
ARREST ON FOOT IN THE JURY CHARGE. ...............................................22
A. Evading arrest on foot is a lesser included offense of evading arrest
using a vehicle. ..............................................................................................23
1. A comparison of the elements of the two offenses results in a finding
that evading arrest on foot under TEX. PEN. CODE § 38.04 (a) is a
iii
lesser included offense of evading arrest using a vehicle under TEX.
PEN. CODE §38.04(b). ............................................................................23
2. Other courts have found that evading arrest under TEX. PEN. CODE
§ 38.04 (a) is a lesser included offense of evading arrest using a vehicle
under TEX. PEN. CODE §38.04 (b). .......................................................29
B. There is some evidence from which a rational jury could acquit
Appellant of the greater offense while convicting him of the lesser-included
offense............................................................................................................29
II. THE TRIAL COURT’S ERROR OF REFUSING TO INCLUDE AN
INSTRUCTION ON THE LESSER INCLUDED OFFENSE IN THE JURY
CHARGE WAS NOT HARMLESS. .................................................................32
III. THE TRIAL COURT ERRED BY ALLOWING APPELLANT’S
ATTORNEY TO TESTIFY REGARDING FACTS THAT CAME TO HIS
KNOWLEDGE THROUGH THE ATTORNEY-CLIENT RELATIONSHIP
PURSUANT TO TEX. R. EVID. 503 (B)(2). ....................................................33
A. The trial court erred by admitting the privileged statements of
Appellant’s criminal defense attorney for the related federal case into
evidence. ........................................................................................................33
B. The trial court’s error in admitting privileged communications was not
harmless. ........................................................................................................34
IV. THE TRIAL COURT ERRED BY USING A STATE JAIL FELONY
CONVICTION AS A PREDICATE OFFENSE FOR A HABITUAL
OFFENDER ENHANCEMENT UNDER TEX. PEN. CODE § 12.42 (D). .....35
A. A habitual felony enhancement cannot rely on a prior conviction for a
state jail felony as a predicate offense. ..........................................................35
B. The 2009 Aggravated Assault Conviction was for a state jail felony
punishable under TEX. PEN. CODE § 12.35 (a). .........................................37
C. Appellant’s conviction was illegal because it exceeded the range of
punishment authorized by law. ......................................................................39
V. THE OFFENSE LEVEL FOR A VIOLATION OF EVADING WITH A
VEHICLE IN VIOLATION OF TEX. PEN. CODE § 38.04 (B) IS PROPERLY
A STATE JAIL FELONY AND NOT A THIRD DEGREE FELONY. ...........40
iv
A. Appellant was convicted of a third degree felony for evading arrest
using a vehicle absent any aggravating factors involving serious injury to
another or previous conviction under Tex. Pen. Code § 38.04. ....................40
B. The text of Texas Penal Code § 38.04 is ambiguous on its face because
the competing amendments from the 82nd Legislature cannot be reconciled
under the Texas Code Construction Act........................................................41
C. The Court should not follow the decisions of the Houston and Fort
Worth courts of appeals, because the rule of lenity dictates that an
ambiguous statute should be interpreted in favor of the Appellant...............44
D. Appellant’s voidable conviction of a third degree felony instead of a
state jail felony subjected him to the habitual offender mandatory minimum
sentencing enhancement. ...............................................................................46
VI. CONCLUSION ...........................................................................................47
PRAYER ..................................................................................................................48
APPENDIX ..............................................................................................................51
v
INDEX OF AUTHORITIES
Cases
Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App. 1994)................................. 21, 35
Adetomiwa v. State, 421 S.W.3d 922 (Tex.App. 2014) .................................... 46, 48
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984)............................... 21, 22
Ates v. State, 21 S.W.3d 384 (Tex. App. 2000) .......................................................37
Carmona v. State, 947 S.W.2d 661 (Tex.App.—Austin 1997, no pet.) ..................22
Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App.1996) (per curiam) ......................23
Ex parte Harris, 495 S.W.2d 231 (Tex.Crim.App. 1973) .......................... 23, 44, 52
Ex parte Hill, 528 S.W.2d 125 (Tex.Crim.App.1975) ............................... 24, 44, 52
Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013) .....................................42
Ex parte Pena, 71 S.W.3d 336 (Tex.Crim.App.2002) ............................................23
Farrakhan v. State, 263 S.W.3d 124 (Tex.App. 2006) aff'd, 247 S.W.3d 720
(Tex.Crim.App. 2008) ..........................................................................................29
Goad v. State, 354 S.W.3d 443 (Tex.Crim.App. 2011) ...........................................34
Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007) ............................................32
Harvill v. State, 13 S.W.3d 478 (Tex.App.-Corpus Christi 2000, no pet.) 23, 44, 52
Hayward v. State, 158 S.W.3d 476 (Tex.Crim.App. 2005).....................................26
Hobbs v. State, 175 S.W.3d 777 (Tex.App. 2005) ..................................... 13, 30, 32
In re Small, 346 S.W.3d 657 (Tex. App. 2009) .......................................................36
Infante v. State, 397 S.W.3d 731 (Tex.App. 2013) .................................................26
Jacob v. State, 892 S.W.2d 905 (Tex.Crim.App. 1995) ................................... 25, 26
Kay v. State, 340 S.W.3d 470 (Tex. App.--Texarkana 2011, no pet.) .....................38
vi
Kos v. State, 15 S.W.3d. 633 (Tex.App.--Dallas 2000, no pet.) ..............................22
Lara v. State, No. 13-04-282-CR, 2007 WL 431241 (Tex. App.—Corpus Christi,
Edinburg, Feb. 8, 2007, no pet.) .................................................................... 13, 31
Mims v. State, 434 S.W.3d 265 (Tex.App. 2014) ............................................. 48, 49
Mizell v. State, 119 S.W.3d 804 (Tex.Crim.App.2003).............................. 23, 44, 52
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................23
Powell v. State, 206 S.W.3d 142 (Tex.App. 2007) ..................................... 12, 31, 32
Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App. 1993) ....................................24
Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) (plurality op. on reh'g) ..24
Sanford v. State, 21 S.W.3d 337 (Tex. App. 2000) .......................................... 22, 38
Smith v. State, 960 S.W.2d 372 (Tex.App.—Houston [1st Dist.] 1998, pet ref’d) .40
State v. Allen, 865 S.W.2d 472 (Tex. Crim. App. 1993) .........................................43
State v. Mancuso, 919 S.W.2d 86 (Tex.Crim.App. 1996) ................................ 40, 42
State v. Webb, 980 S.W.2d 924 (Tex. App. 1998) aff'd, 12 S.W.3d 808
(Tex.Crim.App. 2000) ................................................................................... 39, 42
State v. White, 959 S.W.2d 375 (Tex. App. 1998)............................................ 40, 42
Strong v. State, 773 S.W.2d 543 (Tex. Crim. App. 1989) .......................................37
Sweed v. State, 351 S.W.3d 63 (Tex.Crim.App. 2011) ....................... 13, 24, 31, 34
Warner v. State, 245 S.W.3d 458 (Tex.Crim.App. 2008) .......................................21
Wilkerson v. State, 927 S.W.2d 112 (Tex. App. 1996)............................................43
Statutes
House Bill 3423, Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex.
Sess. Law Serv. 2110, 2111 (West)............................................................... 46, 47
vii
Senate Bill 1416, Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex.
Sess. Law Serv. 2320, 2320–21 (West)......................................................... 46, 47
Senate Bill 496, Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011 Tex.
Sess. Law Serv. 1046, 1046 (West)............................................................... 46, 47
Texas Criminal Procedure Code Ann. art. 36.14 (West) .................................. 21, 35
Texas Criminal Procedure Code Ann. art. 37.09 (West) .................................. 25, 29
Texas Criminal Procedure Code Ann. art. 42.12 (West) .........................................39
Texas Government Code § 311.003.........................................................................49
Texas Government Code § 311.025.........................................................................48
Texas Penal Code Ann. § 12.21 (West) ...................................................................35
Texas Penal Code Ann. § 12.33 (West) ............................................................ 43, 52
Texas Penal Code Ann. § 12.42 (West) ........................................................... passim
Texas Penal Code Ann. § 12.425 (West) .................................................... 39, 41, 52
Texas Penal Code Ann. § 20A.03 (West) ................................................................39
Texas Penal Code Ann. § 21.02 (West) ...................................................................39
Texas Penal Code Ann. § 22.02 (West) ............................................................ 17, 41
Texas Penal Code Ann. § 38.04 (West) ........................................................ 1, 29, 49
Rules
Texas Rule of Appellate Procedure 21.8. ..................................................................6
Texas Rule of Appellate Procedure 39.1 ...................................................................1
Texas Rule of Appellate Procedure 39.2 ...................................................................1
Texas Rule of Evidence 503 ......................................................................... 3, 36, 37
viii
TO THE HONORABLE COURT OF APPEALS:
Appellant Enrique Sanchez Salazar submits this brief on appeal.
STATEMENT OF THE CASE
After a trial before a jury, Appellant was convicted of third degree felony for
violation of Texas Penal Code § 38.04 (b)(2)(a). Appellant elected to have the trial
court assess punishment. Following a punishment hearing, the trial court
sentenced him to thirty-eight (38) years of confinement in the Texas Department of
Criminal Justice Institutional Division. CR. 1: 142-43.1
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument before the Court pursuant to Texas Rule of
Appellate Procedure 39.1 and 39.2, as oral argument would clarify the written
arguments in the briefs.
ISSUES PRESENTED
1. WHETHER THE OFFENSE OF EVADING ARREST OR DETENTION
FOUND AT TEXAS PENAL CODE § 38.04(A) IS A LESSER
1
For the purposes of citing to the record in this case, the following abbreviations are used. For
citing to the official transcript: TR (Transcript Record).1 (volume of the record): 1 (page
number). Thus TR.1: 1, references Volume 1, page 1 of the appeal record. For citations to the
clerk’s Record: CR (Clerk’s Record).1 (volume of the record): 1 (page number). Thus CR.1: 1,
references page 1 of the Clerk’s Record.
1
INCLUDED OFFENSE OF EVADING ARREST OR DETENTION
USING A VEHICLE FOUND AT SUBSECTION (B) OF THE SAME
STATUTE.
2. WHETHER A SCINTILLA OF EVIDENCE EXISTS THAT WOULD
ALLOW A TRIER OF FACT TO FIND THAT APPELLANT DID NOT
USE A VEHICLE WHILE IN FLIGHT.
3. WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR A JURY INSTRUCTION ON THE OFFENSE OF
EVADING ARREST OR DETENTION PURSUANT TO TEXAS PENAL
CODE § 38.04 (A).
4. WHETHER THE TRIAL COURT ERRED IN ALLOWING
APPELLANT’S ATTORNEY TO TESTIFY REGARDING FACTS THAT
CAME TO HIS KNOWLEDGE THROUGH THE ATTORNEY CLIENT
PRIVILEGE PURSUANT TO TEXAS RULE OF EVIDENCE 503 (B)(2).
5. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY
USING A STATE JAIL OFFENSE AS A PREDICATE FOR A
2
HABITUAL OFFENDER ENHANCEMENT UNDER TEXAS PENAL
CODE § 12.42 (D).
6. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY
FINDING THAT THE APPELLANT COMMITTED A THIRD DEGREE
FELONY OFFENSE OF EVADING ARREST OR DETENTION WITH A
VEHICLE PURSUANT TO TEXAS PENAL CODE § 38.04 (B)(2)(A).
STATEMENT OF PROCEDURAL HISTORY
Appellant was indicted by a grand jury of Live Oak County, Texas for using
a vehicle to evade arrest or detention by a peace officer on July 19, 2013. CR.1:
6-7. The indictment contained reference to enhancements based on two prior
convictions: 1) a felony conviction for aggravated sexual assault from the 49th
District Court of Webb County, Texas in Cause Number 2002CRS60 dated May
13th, 2002; and 2) a felony conviction for aggravated assault with a deadly weapon
in Cause Number 2009-CRM-000050-D3 from the 341st District Court of Webb
County, Texas dated June 4, 2009. Id.
The case was tried to a jury on September 2, 2014. TR. 2: 7-17. Appellant
plead not guilty. TR.2: 65-6.
3
The State presented its case in chief, which consisted of testimony from five
witnesses and the admission of State’s exhibits 1-5. At the conclusion of the
presentation of its evidence, the State rested. TR.2: 129. Appellant presented no
evidence and rested immediately after the State. TR.2: 130.
On September 3, 2014, the parties reappeared before the Court outside of the
presence of the jury for the charging conference. TR.3: 8-12. The Court ruled on
the proposed jury charge, rejecting the agreed charge containing an instruction on
the lesser included offense of evading without the use of a vehicle. TR.3: 10-11.
Appellant made an offer of proof of the proposed jury charge that included the
lesser included offense. TR.3: 11; CR.1: 56-61. The Court read the Charge of the
Court and gave the jury instruction. TR.3: 12-13. Following closing argument and
deliberations, the jury returned a unanimous verdict that Appellant was guilty of
the offense of evading arrest using a vehicle as charged in the indictment. TR.3:
30-31.
The punishment phase was conducted on September 3, 2014 before the Trial
Court without the jury. TR.3: 33-68. The State alleged that Appellant was subject
to statutory punishment enhancements because of two prior convictions alleged in
the indictment. TR.3: 33-34. Appellant pleaded not true to the allegation of a May
13, 2002 first degree felony conviction under cause number 2002CRS60 from the
49th District Court of Webb County, Texas for aggravated sexual assault. Id. 33.
4
Appellant then pleaded not true to the allegation of a June 4, 2009 state jail felony
conviction under cause number 2009-CRM-000050-D3 from the 341st District
Court of Webb County, Texas for aggravated assault with a deadly weapon. Id.
33-34.
The State offered testimony, exhibits 6-8, and argument in support of
enhancement for the offense based on the evidence presented of prior felony
convictions. Specifically, the State requested enhancement from a third degree
felony for evading arrest to punishment for a habitual offender ranging from a
minimum of 25 years to 99 years or life. TR.3: 60-63. Appellant argued that the
evidence for the enhancement was not properly authenticated, and was thus not
proof beyond a reasonable doubt for either conviction. Id. 63-65.
Finding that Appellant was guilty of evading arrest or detention with a motor
vehicle and that the two enhancements were true, the trial court found that
Appellant was a habitual felony offender in Texas, and imposed a sentence of
thirty-eight (38) years imprisonment. Id.
On September 24, 2014, Appellant filed a notice of appeal, and a motion for
new trial and arrest of judgment. CR.1: 118-21, 129. On October 9, 2014, the trial
court entered judgment. On December 8, 2014, the motion for new trial was
denied by operation of law. TEX. R. APP. 21.8.
5
STATEMENT OF FACTS
I. SUMMARY OF TESTIMONY AND EXHIBITS PRESENTED
DURING THE GUILT/INNOCENCE PHASE OF TRIAL.
The State’s evidence consists of testimony from the following witnesses and
the admission of the following exhibits:
Testimony
State’s Witnesses Summary of Testimony
Jacir Heil, • Mr. Heil authenticated State’s Exhibits 1, 2, 3, and 4,
Appellant’s attorney which comprised Appellant’s plea agreement,
in Federal Cause No. stipulation, findings and recommendations and
2:13-CR-00707-1 judgment in Appellant’s federal criminal case for
from the Southern transporting aliens (8 U.S.C. § 1324) – charges that
District of Texas, arose from the same incident that was the subject of the
Corpus Christi evading trial. In the plea agreement, Appellant
Division stipulated he was driving the vehicle. Mr. Heil testified
while Appellant signed the stipulations, he may not have
paid a lot of attention to the contents, and based on his
experience in other cases, was signing the stipulations in
order to avoid further charges for obstruction of justice,
and also to gain a reduction in sentence for acceptance
6
of responsibility. TR.2: 75, 83-86.
Alberto Carrion, • Officer Carrion testified that he was employed by the
Three Rivers Police Three Rivers Police Department on July 19, 2013, and
Department Officer. that in the course of his duties he attempted to pull over
TR.2: 90-114 a green van that was speeding on northbound Highway
281 in the City of Three Rivers. TR.2: 90-91.
• Officer Carrion testified that he attempted to pull over
the van, and the driver took off, leading him on a car
chase for a few blocks before coming to a crash stop.
TR.2: 92-93.
• Officer Carrion testified that the van’s driver jumped out
of the van while it was still moving. After the van came
to stop due to a crash with a parked vehicle, the
occupants jumped out or attempted to jump out and ran
from him. TR.2: 93.
• Officer Carrion stayed with the van, and other officers
pursued the van’s occupants on foot. One of the persons
apprehended on foot by another officer was identified as
Appellant. TR.2: 95-96, 101.
7
• Officer Carrion authenticated the recording made by the
dashcam in his police vehicle, admitted as State’s
Exhibit 5. TR.2: 96-98.
• On cross-examination Officer Carrion admitted that his
incident report indicates that the driver of the van was
wearing a white shirt and white shorts, and that he
observed the driver flee from the driver’s side of the
van, and two others flee from the passenger’s side of the
van. TR.2: 101-102.
• Officer Carrion testified that in his conversation with
dispatch, the driver was described as a person wearing a
maroon shirt, but that he is not sure whether he or if
dispatch said it. TR.2: 104-105. He later testified that
Officer Medrano described the driver as wearing a
maroon shirt. Id. 112.
• Officer Carrion admitted on cross-examination that he
was not sure that all of the occupants of the vehicle had
been arrested, and that he had not personally arrested
Appellant. TR.2: 110-111.
8
Noah Leuchner, • Corporal Leuchner testified that while responding to the
Corporal, Three vehicle pursuit call on July 19, 2013, he came into
Rivers Police contact with Appellant. TR.2: 114. Corporal Leuchner
Department encountered him in the brush along the fence line behind
TR.2: 114-120 a house. Id. 115. He testified that Appellant put his
hands up and surrendered to him. Id.
• On cross examination Corporal Leuchner testified that
he did not observe anyone exit from the driver’s side of
the vehicle because it was not possible to leave from the
driver’s side because it was stuck, but later confirmed
that the video showed one person leaving on the left side
of the vehicle. TR.2: 117. Corporal Leuchner testified
that when he arrested Appellant, he was wearing a white
shirt and red shorts. Id.
Roberto Gutierrez, • Agent Gutierrez testified that he responded to the July
Agent, U.S. Border 19, 2013 incident. TR.2: 121. He confirmed that he
Patrol arrested Appellant for alien smuggling, resulting in an
TR.2: 120-127 indictment in Federal Cause No. 2:13-CR-707-1. TR.2:
123
9
Rey Medrano, • Officer Medrano testified that he worked as a Three
Former Three Rivers Rivers police officer on July 19, 2013 and responded to
Police Department the incident. TR.2: 127.
Officer • Officer Medrano testified that he received a description
TR.2: 127-130 of the driver of the van as a person wearing a maroon
shirt. TR.2: 127.
• Officer Medrano testified that he received this
description of the driver from Appellant during
questioning. TR.2: 128.
• On cross-examination, Officer Medrano testified that he
saw several individuals exit the van, and stated that it
could have been more than three. TR.2: 129
The following exhibits were admitted during the guilt/innocence phase of trial:
Exhibits
Exhibit Description Record Citation
No. Offered Admitted
1 Memorandum of Plea Agreement in Cause TR.2: 80 TR.2: 80
No. 2:13-CR-00707-001, from the U.S.
10
District Court for the Southern District of
Texas, Corpus Christi Division.
2 Stipulation of facts in Cause No. 2:13-CR- TR.2: 80 TR.2: 80,
00707-001, bearing Appellant’s signature. 82
3 Findings and Recommendations in Cause TR.2: 80 TR.2: 81
No. 2:13-CR-00707-001, with paragraph 9
redacted by the Trial Court.
4 Judgment in Cause No. 2:13-CR-00707-001 TR.2: 80 TR.2: 80
5 Video of the traffic stop TR.2: 98 TR.2: 98
Appellant presented one exhibit during the guilt/innocence phase:
Appellant’s (Defense) Trial Exhibits
Description Record Citation
Offered Admitted
Proposed Charge of the Court containing a jury TR.3: 11 TR.3: 11
instruction on the lesser included offense of evading
arrest without the use of a vehicle.
11
II. THE TRIAL COURT REFUSED TO ACCEPT AN AGREED
JURY CHARGE CONTAINING AN INSTRUCTION ON THE
LESSER INCLUDED OFFENSE OF EVADING ON FOOT
UNDER TEX. PEN. CODE § 38.04 (B)(1).
During the charging conference, Appellant’s attorney and the State’s
attorney presented two jury charges for the trial court’s consideration: one that
included an instruction on the lesser included offense of evading on foot, and one
that did not. TR.3: 8. Both Appellant’s attorney and the State’s Attorney agreed
that the jury charge should include the instruction of the lesser included offense of
evading on foot. Id. 8-9.
After a brief bench conference, Appellant’s attorney argued for inclusion of
evading on foot as a lesser included offense of evading with a motor vehicle,
relying on Powell v. State, 206 S.W.3d 142 (Tex.App.--Waco 2007, pet. ref’d).
TR.3: 9. The trial court also reviewed an unpublished decision from this Court,
Lara v. State, No. 13-04-282-CR, 2007 WL 431241 (Tex. App.—Corpus Christi,
Edinburg, Feb. 8, 2007, no pet.) for the same proposition. Id.
The trial court ruled that under Hobbs v. State, 175 S.W.3d 777
(Tex.Crim.App. 2005) and “the facts as they have been presented in this court,”
that the complained of acts are one continuous course of conduct, “with only the
means of locomotion changing.” TR.3: 10. The trial court refused to include a
charge of evading arrest under Texas Penal Code § 38.04 (a) as a lesser included
12
offense of the charge from the indictment of evading arrest using a vehicle under
Texas Penal Code § 38.04 (b). Id.
Appellant’s counsel argued that a jury could reasonably conclude that
Appellant was not the driver of the vehicle, and that it should be a question for the
jury to decide. TR.3: 10. Appellant’s counsel further argued that the standard for
including a lesser included offense found in Article 37.09 of the Code of Criminal
Procedure is “anything more than a scintilla of evidence,” pursuant to Sweed v.
State, 351 S.W.3d 63 (Tex.Crim.App. 2011). Id. at 10-11. The fact question
about the number of people fleeing from the motor vehicle, argued Appellant, was
sufficient to prove that at least two people who ran from the van were only guilty
of evading on foot. Id. 11.
Appellant’s counsel made an offer of proof of the proposed jury charge
containing the lesser included offense instruction, which was accepted into the
record as Defense Exhibit 1. Id. 11; TR.4: 56-61. The Court rejected the proposed
jury charge. TR.4: 61. The Court instructed the jury based on the charge that did
not include the lesser included offense instruction. TR.3: 13; CR.1: 113-116. The
verdict form included one finding, that Appellant was guilty of the offense of
evading arrest with a vehicle as alleged in the indictment. TR.3: 13; CR.1: 117.
13
III. SUMMARY OF THE EVIDENCE AND THE TRIAL COURT’S
FINDINGS DURING THE PUNISHMENT PHASE.
The State offered the following testimony and documentary evidence during
the punishment phase:
Testimony
State’s Witnesses Summary of testimony
Dan Caddell, Offered testimony to authenticate State’s exhibits during
Investigator, punishment phase.
Live Oak County
Sheriff’s Office
TR.3: 35-60
Exhibits
Description Record Citation
Offered Admitted
6 Fingerprint Card for Appellant dated TR.3: 38 TR.3: 47
September 3, 2014.
7 Judgment in Cause No. 2002CRS60 TR.3: 38 TR.3: 47
from the 49th District Court of Webb
County, Texas.
14
8 Judgment in Cause No. 2009-CRM- TR.3: 38 TR.3: 47
000050-D3 from the 341st District
Court of Webb County, Texas.
9 Indictment in Cause No. 2001-CRS- TR.3: 45 Not
000633-D1 admitted
9A Certificates TR.3: 49 withdrawn
The jury found by unanimous verdict that Appellant was guilty of the
offense of evading arrest with a vehicle as alleged in the indictment. TR.3: 31.
Appellant elected to have the court, rather than the jury, determine punishment.
TR.3: 33. During the punishment phase the Court heard evidence on the
punishment enhancements included in the indictment, namely that Appellant had
been convicted of two felonies: 1) a 2002 aggravated sexual assault conviction
from Webb County, Texas; and 2) a 2009 aggravated assault with a deadly weapon
conviction from Webb County, Texas. CR.1: 6-7; TR.3: 33. Appellant pleaded
that neither conviction was true. TR.3: 33-34.
The State presented certified copies of the two convictions, which were
accepted into the record together with a fingerprint card over Appellant’s
objections as State’s Exhibits 6, 7, and 8. TR.3: 47; TR.4: 31-55. Appellant
objected to the exhibits on the ground that the proper predicate for accepting them
15
into the record had not been laid by the State’s witness, that the purportedly self-
authenticating certified records were not properly linked to the Appellant, and that
the evidence was not produced to her during discovery. TR.3: 41-43, 46. The trial
court overruled each of Appellant’s objections. TR.3: 46-7.
The record of the 2002 aggravated sexual assault conviction under cause
number 2002CRS60 from the 49th District Court of Webb County indicates that
Appellant pleaded guilty to a first degree felony for an offense committed on July
11, 2001, with no findings of enhancement or findings on the use of a deadly
weapon, and that he was sentenced on May 6, 2002 to five years of imprisonment.
TR.4: 35-38. A judgment in cause number 2001CRS633 from the 49th District
Court of Webb County indicates that Appellant pleaded guilty to a first degree
felony for an offense committed on April 1, 2001, with no findings of enhancement
or findings on the use of a deadly weapon, and that he was sentenced on May 6,
2002 to five years of imprisonment. TR.4: 39-42. The judgment also indicated
that the two sentences from both cases were to run concurrently. Id. 39.
Exhibit 8 contained a fingerprint card and several other judgments. TR.4:
45-55. The 2009 judgment for aggravated assault with a deadly weapon in cause
number 2009-CRM-000050-D3 from the 341st District Court of Webb County,
indicates that the offense occurred on January 23, 2008, that Appellant pleaded
guilty to violating Texas Penal Code § 22.02 (a)(2), a state jail felony, for which he
16
was sentenced to four years imprisonment. TR.4: 49. The judgment does not
indicate that any deadly weapons findings were made, nor that there were any
enhancements, and sets June 4, 2009 as the date of sentence. Id.
The other judgments in Exhibit 8 were a 2007 judgment for possession of
cocaine from the 214th District Court of Nueces County, and a 2009 judgment for
failing to register as a sex offender from the 406th District Court of Webb County.
TR.4: 47-48, 51-53.
At the conclusion of the presentation of evidence during the sentencing
phase, the State urged the Trial Court to find that the two enhancement paragraphs
from the indictment, referencing the 2002 sexual assault conviction, and the 2009
aggravated assault conviction, were true based on the evidence accepted into the
record. TR.3: 61-62. The State concluded that these two convictions triggered the
habitual felony offender penalty. Id. 61.
Appellant argued to the trial court that the evidence presented did not
provide sufficient evidence for the trier of fact to find beyond a reasonable doubt
that each conviction is linked to him. TR.3: 63. Appellant specifically objected to
the evidence that he was convicted of aggravated sexual assault. Id.
The trial court found that the evidence proved that both paragraphs relating
to enhancement in the indictment were true. TR.3: 67. The trial court found that
17
Appellant is a habitual offender, and imposed a thirty-eight (38) year prison
sentence and a fine of $5,000. Id.
SUMMARY OF ARGUMENT
Appellant argues that the trial court committed several errors in the course of
his trial that caused him material harm.
The first point of error was the trial court’s refusal to include a jury
instruction on the charge for the lesser included offense of evading arrest on foot
under Texas Penal Code § 38.04 (a). The trial court’s error in refusing to include
an instruction on a lesser included offense in the jury charge, resulted in a
conviction of a third degree felony, exposing Mr. Sanchez to a finding during
sentencing that he is a habitual felon subject to the mandatory minimum
enhancement found at Texas Penal Code § 12.42 (d) requiring a mandatory
punishment of twenty-five (25) years. Absent this error, Mr. Sanchez might have
been convicted of a Class A misdemeanor and would not have been subject to the
mandatory minimum of twenty five years imprisonment mandated by TEX. PEN.
CODE § 12.42 (d). Appellant was materially harmed by the trial court’s error,
meriting reversal.
Appellant’s second point of error is the trial court’s admission of privileged
statements from J. Heil, Appellant’s attorney in the related federal case arising out
18
of the same conduct. Appellant argues that but for the trial court’s erroneous
admission of his attorney’s testimony over his objections, there would be no direct
evidence in the record that indicates that he was the driver of the vehicle. Absent
this evidence, there is insufficient evidence to support a conviction for evading
using a vehicle. The trial court’s error caused Appellant material harm, meriting
reversal.
Appellant’s third point of error is the trial court’s reliance on a state jail
felony as a predicate offense for the habitual felon enhancement from TEX. PEN.
CODE § 12.42 (d). Appellant argues that his 2009 judgment for Aggravated
Assault indicates that he committed a state jail felony punishable under Texas
Penal Code § 12.35 (a), which cannot be used as a predicate offense for the
habitual offender enhancement. Because the trial court illegally relied on a state
jail felony for the purposes of enhancement under TEX. PEN. CODE § 12.42 (d),
his sentence is illegal and void ab initio. Appellant’s sentence should be vacated
and his case remanded for re-sentencing.
Appellant asserts in his final point of error that the trial court erred by
sentencing him to a third degree felony for the offense of evading using a vehicle.
Appellant argues that offense classification of evading using a vehicle found at
Texas Penal Code § 38.04 is ambiguous on its face, meriting the application of the
rule of lenity in his favor, requiring the court to punish his conduct as a state jail
19
felony rather than a third degree felony. Because the trial court sentenced
Appellant using the harsher penalty of ambiguous statute, his sentence is illegal
and void ab initio. Appellant’s sentence should be vacated and his case remanded
for re-sentencing.
The Court should vacate Mr. Sanchez’s conviction and remand the case for a
new trial. Alternatively, the Court should vacate Mr. Sanchez’s sentence and
remand the case for re-sentencing.
STANDARD OF REVIEW
A trial court’s ruling on a jury charge is reviewed for both reversible and
fundamental error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
The first step is to determine whether there was an error in the charge. Abdnor v.
State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994). If the charge was
erroneous, then it must be determined whether sufficient harm resulted from the
error. Id. at 732. The degree of harm varies based on whether the complained of
error was preserved by a timely objection at trial. Id. at 731-32. Where an error is
properly preserved, the reviewing court can reverse a conviction upon a showing of
“some harm,” which mandates reversal in the absence of harmless error. Almanza,
686 S.W.2d at 171 (holding that reversal is required if the complained of error was
“calculated to injure the rights of the defendant”). The record must show actual
20
and not merely theoretical harm. Warner v. State, 245 S.W.3d 458, 461-62
(Tex.Crim.App. 2008).
In order to preserve jury charge error, a party must raise the objection to the
trial court on the record and have the objections noted by court reporter in the
presence of the court and the state’s counsel, before the reading of the court’s
charge to the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (West). Appellant
timely objected to the trial court’s refusal to include an instruction on the lesser
included offense in the jury charge on the record, in the presence of the trial court
and state’s counsel, and made an offer of proof of the jury charge with the
requested instruction prior to the reading of the court’s charge to the jury. TR.3: 8-
11; TR.4: 56-61. The proper standard of reviewing the jury charge error in this
case is the showing of “some harm” to Appellant. Almanza, 686 S.W.2d at 171.
An error relating to an assertion of privilege is reviewed under an abuse of
discretion standard. Kos v. State, 15 S.W.3d. 633 (Tex.App.--Dallas 2000, no
pet.)(citing Carmona v. State, 947 S.W.2d 661, 664 (Tex.App.—Austin 1997, no
pet.). A trial court’s determination is reversed only “when the trial court applied
an erroneous legal standard, or when no reasonable view of the record could
support the trial court’s conclusion under the correct law and the facts viewed in
the light most favorable to its legal conclusion.” Id. (internal citations omitted). A
reversible error regarding attorney-client privilege is subject to the harmless error
21
standard from Texas Rule of Appellate Procedure 44.2 (b). Sanford v. State, 21
S.W.3d 337, 345 (Tex. App. 2000) abrogated by Motilla v. State, 78 S.W.3d 352
(Tex. Crim. App. 2002).
A “void” or “illegal” sentence is one that is not authorized by law. Ex parte
Pena, 71 S.W.3d 336, 336 n. 2 (Tex.Crim.App.2002); see Ex parte Harris, 495
S.W.2d 231, 232 (Tex.Crim.App. 1973); see Mizell v. State, 119 S.W.3d 804, 806
(Tex.Crim.App.2003) (“A sentence that is outside the maximum or minimum
range of punishment is unauthorized by law and therefore illegal.”); Ex parte Beck,
922 S.W.2d 181, 182 (Tex.Crim.App.1996) (per curiam) (sentence of twenty-five
years of imprisonment for offense for which maximum range of punishment was
two years of imprisonment was illegal). “A sentence unauthorized by law is
fundamental error, rendering the sentence void.” Harvill v. State, 13 S.W.3d 478,
482 (Tex.App.-Corpus Christi 2000, no pet.) (citing Ex parte Hill, 528 S.W.2d
125, 126 (Tex.Crim.App.1975) (sentence was void where trial court imposed five
year sentence and maximum authorized punishment was four years).
ARGUMENT
I. THE TRIAL COURT ERRED BY REFUSING TO INCLUDE AN
INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF
EVADING ARREST ON FOOT IN THE JURY CHARGE.
Whether a lesser included offense instruction must be given requires a two-
step analysis. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex.Crim.App. 2011) (citing
22
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Royster v.
State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) (plurality op. on reh'g)). The
first step requires the reviewing court to determine whether the lesser included
offense is included within the proof necessary to establish the offense as charged.
Id. (internal citations omitted). The second step requires a determination whether
there is “some evidence from which a rational jury could acquit the defendant of
the greater offense while convicting him of the lesser-included offense.” Id.
(internal citations omitted).
A. Evading arrest on foot is a lesser included offense of
evading arrest using a vehicle.
1. A comparison of the elements of the two offenses results
in a finding that evading arrest on foot under TEX. PEN.
CODE § 38.04 (a) is a lesser included offense of evading
arrest using a vehicle under TEX. PEN. CODE
§38.04(b).
An offense is considered to be a lesser in included offense if:
1. it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged;
2. it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest suffices to
establish its commission;
3. it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or
23
4. it consists of an attempt to commit the offense charged or an otherwise
included offense.
Tex. Code Crim. Proc. Ann. art. 37.09 (West). A determination of whether an
offense is a lesser included offense is decided on a case-by-case basis. Jacob v.
State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995). The Court of Criminal
Appeals set forth a test for comparing the elements of the two offenses, examining:
1. The elements of the offense charged;
2. The statutory elements of the offense claimed to be the lesser included
offense;
3. The proof presented at trial to show the elements of the charged offense.
Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005); Jacob, 892 S.W.2d
at 907-08.
Below is a comparison of the elements of the two offenses from TEX. PEN.
CODE § 38.04, together with the proof presented at trial to show the elements of
the charged offense. See also Infante v. State, 397 S.W.3d 731, 734 (Tex.App.—
San Antonio 2013, no pet.).
Elements of Offense Elements of Lesser Proof presented at trial
Charged [TEX. PEN. Included Offense to prove the element of
CODE § 38.04 (b)] [TEX. PEN. CODE § the charged offense.
38.04 (a)]
24
1. intentional 1. intentional Testimony of arresting
officers, stipulation signed
in federal court that
referenced declarations
made by vehicle occupants
outside of court.
2. flight; 2. flight; Testimony of arresting
officers, stipulation signed
in federal court that
referenced declarations
made by vehicle occupants
outside of court.
3. from a person 3. from a person Testimony of arresting
officers, stipulation signed
in federal court that
referenced declarations
made by vehicle occupants
outside of court.
4. the defendant knows is 4. the defendant knows Testimony of arresting
25
peace officer or a federal is peace officer or a officers, stipulation signed
special investigator; federal special in federal court that
investigator; referenced declarations
made by vehicle occupants
outside of court.
5. who is attempting to 5. who is attempting to Testimony of arresting
lawfully arrest or detain lawfully arrest or detain officers.
him. him. Stipulation signed in
federal court that
referenced declarations
made by vehicle occupants
outside of court.
6. using a vehicle N/A Plea of guilty in Federal
Court Case to offense that
had “transporting” as an
element of the offense.
Stipulation signed in
federal court that
referenced declarations
made by vehicle occupants
26
outside of court.
It is clear that an offense under § 38.04 (a) can meet the requirements of
article 37.09, section 1, because an offense for evading on foot can be established
by relying on proof of less than all the facts required to establish a commission of
the charged offense of evading using a vehicle -- i.e., all of the elements except the
vehicle.
Additionally, it is clear that evading under § 38.04 (a) is distinct from §
38.04 (b) only in the less serious risk of injury to the public interest suffices to
establish its commission. Tex. Code Crim. Proc. art. 37.09 (West). The public
interest protected by § 38.04 is the evasion of an arrest or detention, and it is
designed “to encourage suspects to yield to a police show of authority.”
Farrakhan v. State, 263 S.W.3d 124, 143 (Tex.App.—Houston [1st Dist.] 2006)
aff'd, 247 S.W.3d 720 (Tex.Crim.App. 2008). The risk of injury to the public
interest is greater when an offender uses a vehicle, because it increases the
likelihood of evasion.
The third section of article 37.09 does not apply here, as there is no
distinction between the culpable mental state necessary for commission of the
offense, only the means of commission. Likewise, article 37.09 section 4 is also
inapplicable because evasion on foot is not an attempt offense.
27
The trial court’s reliance on the Court of Criminal Appeal’s decision in
Hobbs v. State, 175 S.W.3d 777 (Tex.Crim.App. 2005) is misplaced. TR.3: 10.
The Court in Hobbs found that an offense of evading on foot and evading using a
vehicle could not be separated when the act giving rise to the offense commences
as an evasion with a vehicle and continues on foot after the car was abandoned.
Id., at 778-80. The Court concluded that the legislature did not intend for separate
offenses when different means of locomotion are used to commit the offense. Id.,
at 781. In other words, Hobbs stands for the proposition that Appellant could not
be found guilty of two separate offenses; the opinion does not address the situation
such as the one at bar where the evidence could support a finding that he evaded by
foot or using a vehicle. This was a factual finding that the jury was entitled to
make in the first instance. As demonstrated in the table comparing the evidence
necessary to convict Appellant of either offense, if the jury found that he was not
the driver of the vehicle and merely a passenger in the van, he could have been
convicted of evading on foot.
28
2. Other courts have found that evading arrest under TEX.
PEN. CODE § 38.04 (a) is a lesser included offense of
evading arrest using a vehicle under TEX. PEN. CODE
§38.04 (b).
In a well-reasoned decision, the Waco court of appeals found that the
offense of evading on foot is a lesser included offense of evading arrest in a
vehicle. Powell v. State, 206 S.W.3d 142, 143 (Tex.App.—Waco 2007, pet. ref’d).
The court found that because the elements of evading on foot varied from the
elements of evading by vehicle only by omission of the element of the use of a
vehicle, evading on foot is “included within the proof necessary” to prove evading
by vehicle. Id.
This Court concurred with the holding of Hobbs in an unpublished decision,
finding that evading on foot and evading with a vehicle are each separate offenses.
Lara v. State, No. 13-04-282-CR, 2007 WL 431241 at * 3.
The Court should follow the reasoning of Hobbs and Lara, and find that
evading on foot is a lesser included offense of evading with a vehicle.
B. There is some evidence from which a rational jury could
acquit Appellant of the greater offense while convicting him
of the lesser-included offense.
When evaluating the evidence in favor of a conviction for the lesser-
included offense for a finding that it is “a rational alternative to the charged
offense,” all of the evidence presented at trial may be reviewed. Sweed, 351 S.W.
29
3d at 68 (internal citations omitted). Anything more than a “scintilla of evidence”
may be sufficient to entitle a defendant to the inclusion of a lesser charge. Hall v.
State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007).
As demonstrated in the comparison of the two offenses, the only distinction
between the evidence necessary to convict Appellant on the charge of evading on
foot and evading using a vehicle, is the evidence that Appellant was the driver of
the vehicle on July 19, 2013. If there is scintilla of evidence that Appellant was
not the driver of the vehicle, and was only a passenger in the vehicle who fled on
foot once the van crashed, he is entitled to an instruction on evading on foot as a
lesser included offense.
The Court of Appeals in Powell determined that no scintilla of evidence
existed to support an instruction on an evading on foot offense when the evidence
at trial was undisputed that the Defendant drove his car 250 feet after the officer
told him not to drive away, and then abandoned the car and continued his flight on
foot. Powell, 206 S.W.3d at 143. Because it was undisputed that the Defendant in
Powell drove his car away from the stop, he could not have been convicted of
evading on foot. See also Hobbs, 175 S.W.3d at 781.
In the present case Appellant does not admit at any time that he was the
driver of the van. The testimony of Officer Carrion, the officer who initiated the
stop did not include a positive identification of the driver, only a positive
30
identification of Appellant as a person who was arrested after having fled the
vehicle. TR.2: 93, 95-96, 101. Officer Carrion testified that the driver was
wearing a white shirt, and that the dispatch conversation mentioned that the driver
was wearing a maroon shirt. TR.2: 112. Officer Carrion testified that it was
possible that not all of the occupants of the van had been arrested. TR.2: 110-111.
Corporal Leuchner, the officer that arrested Appellant, testified that he
encountered him hiding in the brush behind a house. TR.2: 114. He testified that
Appellant was wearing a white shirt and red shorts when arrested. Id. at 117.
Officer Rey Medrano testified that he saw several individuals exit the van
during the crash, and that it could have been more than three. TR.2: 129. He
stated that he was told that the van’s driver was wearing a maroon shirt. Id. 127.
Appellant’s attorney in the federal alien smuggling case that arose out of the
same incident, testified that although his client signed the stipulation and plea
agreement, he was not convinced that Appellant was aware of the contents of the
statements. TR.2: 75. He testified that in his experience criminal defendants are
unwilling to challenge facts contained in plea stipulations even if they are not true
because they hope to gain a reduction in offense levels at sentencing. Id.
The admission in the plea colloquy was part of the magistrate’s findings and
recommendations and not due to an admission by the Appellant of driving the
vehicle. TR.2: 89. The statements attached to the stipulation were self-serving out
31
of court statements that Appellant could not challenge on cross-examination, which
was the basis for Appellant’s objection to the admission of State’s Exhibit 2 at trial
which was overruled. TR.2: 80-81.
In this case there is more than a scintilla of evidence meriting an instruction
on a lesser included offense of evading on foot. A review of the evidence reveals
that some of the evidence refutes or negates other evidence establishing the greater
offense. See Sweed, 351 S.W.3d at 68. There is some dispute as to what the driver
of the van was wearing. There is consensus by the arresting officers that one of the
occupants of the van may have escaped. The Court should not consider the
credibility of the evidence and whether it conflicts with other evidence or is
controverted, only that there is some room for the trier of fact to interpret the
evidence differently. Goad v. State, 354 S.W.3d 443, 447 (Tex.Crim.App. 2011).
In this case, Appellant is able to demonstrate that reasonable minds could have
found that he was not the driver based on the evidence presented at trial, meriting
an instruction for evading on foot as a lesser included offense.
II. THE TRIAL COURT’S ERROR OF REFUSING TO INCLUDE
AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE IN
THE JURY CHARGE WAS NOT HARMLESS.
Appellant need only show “some harm” because he properly preserved the
error at trial. Abdnor, 871 S.W.2d at 731-32; Tex. Code Crim. Proc. Ann. art.
36.14 (West). Without the option of a lesser included offense, Appellant could
32
only be convicted of evading using a vehicle, a felony offense rather than a Class
A Misdemeanor. The felony conviction for evading using a vehicle resulted in a
finding that Appellant is a habitual felon subject to the mandatory minimum
enhancements found at TEX. PEN. CODE § 12.42(d) requiring a mandatory
punishment of twenty-five (25) years. TR.3: 67. Absent this error, Appellant
would not have been subject to the mandatory minimum of twenty five years
imprisonment mandated by TEX. PEN. CODE § 12.42 (d).
The exposure to greater liability at sentencing materially harmed Appellant
as he would only have been subject to a maximum of one year in jail and a $4,000
fine for violation of a Class A misdemeanor. TEX. PEN. CODE § 12.21.
III. THE TRIAL COURT ERRED BY ALLOWING APPELLANT’S
ATTORNEY TO TESTIFY REGARDING FACTS THAT CAME
TO HIS KNOWLEDGE THROUGH THE ATTORNEY-CLIENT
RELATIONSHIP PURSUANT TO TEX. R. EVID. 503 (B)(2).
A. The trial court erred by admitting the privileged statements
of Appellant’s criminal defense attorney for the related
federal case into evidence.
The only direct evidence that Appellant was driving a vehicle, the key
element of the offense came from his own attorney, J. Heil. TR.2: 74-86. Mr. Heil
represented Appellant in his federal case for alien smuggling. Id. 77-78. Before
Mr. Heil testified, Appellant's attorney invoked the attorney-client privilege on his
behalf. Id. 56-57; Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App.
33
1997)(holding that the power to waive the attorney-client privilege belongs to the
client, or his attorney or agent both acting with the client's authority). The trial
court ruled that the privilege did not apply to matters stated in "open court" and
overruled the objection. TR.2: 57.
Texas Rule of Evidence 503 governs the attorney-client privilege. In re
Small, 346 S.W.3d 657, 663 (Tex. App. 2009)(stating that the attorney-client
privilege protects confidential communications between client and counsel made
for the purpose of facilitating the rendition of legal services from disclosure). The
general rule protects "communications" between attorney and client, but there is a
broader privilege that applies in criminal cases. TEX. R. EVID. 503(b)(1). In
criminal cases, the client may invoke the privilege to prevent his attorney from
testifying as to "any other fact which came to the knowledge of the lawyer . . . by
reason of the attorney-client relationship." TEX. R. EVID. 503(b)(2) (emphasis
added). The burden of establishing the privilege is on the party asserting it. Strong
v. State, 773 S.W.2d 543, 552 (Tex. Crim. App. 1989).
B. The trial court’s error in admitting privileged
communications was not harmless.
Mr. Heil's only source of knowledge about the stipulation that Appellant
signed came by reason of the attorney-client relationship. Appellant had an
absolute privilege to prevent Mr. Heil from testifying regarding those facts, a
34
privilege he invoked. TR.2: 57; Ates v. State, 21 S.W.3d 384, 393 (Tex. App.
2000)(finding that discussions regarding plea bargains are confidential
communications protected by the attorney-client privilege and may not be
disclosed without the client's permission). Had the trial court excluded that
evidence, there would have been no admission in evidence that Appellant drove the
vehicle and the jury would have been left with only the conflicting accounts of the
two officers, neither of whom identified him as the driver. TR.2: 101-102, 104-
105, 112, 117, 127.
Accordingly, the trial court's ruling was not only an abuse of discretion, it
resulted in harmful error. Sanford v. State, 21 S.W.3d at 347; but see Kay v. State,
340 S.W.3d 470, 474-75 (Tex. App.--Texarkana 2011, no pet.) (holding that trial
court did not error in allowing attorney to testify about observations made by him
while in the courtroom because any other person could testify about them).
IV. THE TRIAL COURT ERRED BY USING A STATE JAIL
FELONY CONVICTION AS A PREDICATE OFFENSE FOR A
HABITUAL OFFENDER ENHANCEMENT UNDER TEX. PEN.
CODE § 12.42 (D).
A. A habitual felony enhancement cannot rely on a prior
conviction for a state jail felony as a predicate offense.
The habitual offender enhancement is triggered by a finding that a defendant
has “been finally convicted of two felony offenses,” the second having occurred
subsequent to the finality of the first. TEX. PEN. CODE § 12.42 (d). The Penal
35
Code explicitly bars consideration of a “state jail felony punishable under Section
12.35 (a) [of the Penal Code]” for enhancement purposes. Id.
Pursuant to TEX. PEN. CODE § 12.35 (a), a state jail felony “shall be
punished by confinement in a state jail for any term of not more than two years or
less than 180 days.” Under §12.35 (c), a state jail felony is punished as a third
degree felony upon a finding that either a deadly weapon was used or exhibited
during the commission of the offense, or the defendant has of a prior conviction of
any felony under TEX. PEN. CODE § 20A.03 or § 21.02 or listed in Section
3g(a)(1), Article 42.12, Code of Criminal Procedure. TEX. PEN. CODE ANN. §
12.35 (West). A state jail felony under § 12.35 can also be enhanced to second
degree felony punishment under TEX. PEN. CODE ANN. § 12.425, upon a
showing of a two previous qualifying felony convictions. TEX. PEN. CODE ANN.
§ 12.425 (West).
Whether a state jail felony is enhanced pursuant to § 12.35 (c) or § 12.425 is
a relevant distinction for an enhanced state jail felony to be subject to the habitual
offender enhancement. State v. Webb, 980 S.W.2d 924, 927 (Tex. App.—Fort
Worth 1998) aff'd 12 S.W.3d 808 (Tex.Crim.App. 2000) (citing Smith v. State, 960
S.W.2d 372 (Tex.App.—Houston [1st Dist.] 1998, pet ref’d); State v. White, 959
S.W.2d 375, 377 (Tex. App. 1998)). The Court of Criminal Appeals has found
that for sentencing enhancement purposes there are only two classifications of state
36
jail felonies: those punishable under section 12.35 (a) and those punishable under
section 12.35 (c). State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App. 1996).
Thus, the key consideration for any predicate state jail felony used for
enhancement pursuant to TEX. PEN. CODE § 12.42 (d), is whether it was
enhanced based on § 12.35 (c).
B. The 2009 Aggravated Assault Conviction was for a state jail
felony punishable under TEX. PEN. CODE § 12.35 (a).
The two prior convictions presented in the indictment and considered by the
Trial Court during sentencing were:
1) A conviction for aggravated sexual assault from the 49th District Court of
Webb County, Texas in Cause Number 2002CRS60 dated May 13th, 2002;
and
2) A conviction for aggravated assault with a deadly weapon in Cause Number
2009-CRM-000050-D3 from the 341st District Court of Webb County,
Texas dated June 4, 2009. CR.1: 6-7
The aggravated assault conviction record indicates that Appellant pleaded
guilty to a violation of TEX. PEN. CODE § 22.02 (a)(2), a state jail felony, to
which he was sentenced to four years imprisonment. TR.4: 49-50. The judgment
notes no enhancement for a finding of use of a deadly weapon, nor is there an
indication that an enhancement was applied for any prior convictions. TR.4: 49.
37
The judgment contained special findings including: a credit for 207 days toward
the total sentence and an order that the sentence run concurrently with a possession
of a controlled substance conviction from Nueces County.
Because the judgment does not indicate any basis for an enhancement under
§ 12.35 (c), the fact that Appellant received punishment outside of the normal
range of punishment for a § 12.35 (a) state jail felony does not establish that his
conviction can be used as a predicate offense for § 12.42 (d) purposes. It is
possible that his 2009 sentence was enhanced under § 12.425 (or the previous
habitual state jail felony enhancement provision, § 12.42(a)(2)). The judgment
unequivocally states that he was convicted of a state jail felony and that no
enhancement was applicable for use of a deadly weapon, and that there were no
enhancements for prior convictions indicated in the indictment. TR.4: 49.
What is certain is that absent a clear indication that Appellant’s 2009
sentence was an aggravated state jail felony under § 12.35 (c), his 2009 conviction
cannot serve as a predicate offense for an enhancement under § 12.42 (d). The
binding precedent of the Court of Criminal Appeals recognizes the importance of
the distinction between the method of enhancement of a state-jail felony for the
purposes of the habitual offender statute, and it is clear that only a state jail felony
enhanced under § 12.35 (c) meets the statutory requirement. White, 959 S.W.2d at
377; Mancuso, 919 S.W.2d at 88; Webb, 980 S.W.2d at 927.
38
C. Appellant’s conviction was illegal because it exceeded the
range of punishment authorized by law.
A conviction obtained using an improper enhancement is illegal if it is
outside the range of punishment authorized by law. Ex Parte Parrott, 396 S.W.3d
531 (Tex.Crim.App. 2013) (internal citations omitted); Wilkerson v. State, 927
S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
A third degree felony may be enhanced to punishment for a second degree
felony upon a finding of a prior conviction for a qualifying felony pursuant to
TEX. PEN. CODE § 12.42 (a). A second degree felony is punishable with
imprisonment of not less than two (2) years and not more than twenty (20) years.
TEX. PEN. CODE § 12.33 (a).
The Court of Criminal Appeals has found that the operation of the habitual
offender enhancement statute found at TEX. PEN. CODE § 12.42 is mandatory,
and strips the trial court judge of discretion at sentencing once the predicate
offenses have been determined. State v. Allen, 865 S.W.2d 472, 474 (Tex. Crim.
App. 1993)(holding that the mandatory operation of Section 12.42(d) restricts the
discretion of the sentencing authority once the facts of two prior felonies are found
to be true). Under TEX. PEN. CODE § 12.42 (d), a person convicted of a felony
offense other than a state jail felony, who has been convicted of two previous
felonies (state jail felonies excluded), shall be imprisoned for a mandatory term of
at least twenty five (25) years to life.
39
Had Appellant been subjected to enhancement based solely upon the 2002
first degree felony, he would have been subject to a maximum of 20 years
imprisonment under §§ 12.42 (a) and 12.33. This is five years less than the
mandatory minimum to which he was subjected under § 12.42 (d) and eighteen
years less than his actual sentence.
The enhanced sentence is illegal because it relies upon a state jail felony,
and is therefore not authorized by law. See Ex parte Harris, 495 S.W.2d at 232;
Mizell v. State, 119 S.W.3d at 806. Appellant’s illegal sentence is fundamental
error, voiding his sentence ab initio. Harvill v. State, 13 S.W.3d at 482; Ex Parte
Hill, 528 S.W.2d at 126. Because this error caused Appellant harm, his illegal
sentence must be vacated, and his case remanded for re-sentencing.
V. THE OFFENSE LEVEL FOR A VIOLATION OF EVADING
WITH A VEHICLE IN VIOLATION OF TEX. PEN. CODE §
38.04 (B) IS PROPERLY A STATE JAIL FELONY AND NOT A
THIRD DEGREE FELONY.
A. Appellant was convicted of a third degree felony for evading
arrest using a vehicle absent any aggravating factors
involving serious injury to another or previous conviction
under Tex. Pen. Code § 38.04.
Appellant was convicted under TEX. PEN. CODE § 38.04 (b)(2)(A), a third
degree felony. CR.1: 6-7, 130-134. The indictment alleges that Appellant used a
40
vehicle to evade arrest, but not that anyone was hurt or that he had a prior
conviction under § 38.04.
The date of Appellant’s the alleged offense is July 19, 2013, meaning that
the 2011 amendments to the statute were in effect at the time of his arrest. The
indictment was filed on March 6, 2014. CR.1: 6. The trial began on September 2,
2014. TR.2: 65. The trial court issued its sentence on September 3, 2014. TR.3:
67. During the time of the indictment, trial, and sentencing, the current version of
the statute was in effect.
B. The text of Texas Penal Code § 38.04 is ambiguous on its
face because the competing amendments from the 82nd
Legislature cannot be reconciled under the Texas Code
Construction Act.
TEX. PEN. CODE § 38.04 has been amended several times during the past
five years, most significantly in 2011, when the legislature amended it three times
during the legislative session, resulting in two conflicting offense classifications
for evading arrest using a vehicle. Under the previous statute, re-enacted by Senate
Bill 496 (SB 496) and House Bill (HB 3423) 3423, evading with a vehicle is a state
jail felony, while under Senate Bill 1416 (SB 1416), evading with a vehicle is a
third degree felony. Adetomiwa v. State, 421 S.W.3d 922, 925-26 (Tex.App.
2014).
41
The legislative history of the 2011 amendments to TEX. PEN. CODE §
38.04 is murky, but it has been explained by other courts. Adetomiwa, 421 S.W.3d
at 925-26. The following table provides a side-by-side comparison 2:
Legislative Bill Senate Bill 496, House Bill 3423, Senate Bill 1416,
from the 82nd Act of May 23, Act of May 24, Act of May 27,
Legislature. 2011, 82nd Leg., 2011, 82nd Leg., 2011, 82nd Leg.,
R.S., ch. 391, § 1, R.S., ch. 839, § 4, R.S., ch. 920, § 3,
2011 Tex. Sess. 2011 Tex. Sess. 2011 Tex. Sess.
Law Serv. 1046, Law Serv. 2110, Law Serv. 2320,
1046 (West) 2111 (West) 2320–21 (West)
Date Enacted May 23, 2011 May 24, 2011 May 27, 2011
Substantive Adds the term Adds “federal Changes the
Amendments “watercraft” to the special punishment
type of investigator” to the scheme to enhance
transportation an type of individual punishment for
2
The Text of the Legislative Bills have been provided to the Court as an Appendix to this Brief.
The subsequent amendment to § 38.04 from the 83rd Legislature was achieved via S.B. 1093,
titled “Nonsubstantive Additions to and Corrections in Enacted Codes, to the Nonsubstantive
Codification or Disposition of Various Laws Omitted from Enacted Codes, and to Conforming
Codifications Enacted by the 82nd Legislature to Other Acts of that Legislature”. See 2013 Tex.
Sess. Law Serv. Ch. 161 (S.B. 1093) (Vernon’s). At Article 22, Section 22.001 (38) of S.B.
1093, the Senate directs that “Subdivision (2), Subsection (c), Section 38.04, Penal Code, as
added by Chapter 391 (S.B. 496), Acts of the 82nd Legislature, Regular Session, 2011, is
redesignated as Subdivision (3), Subsection (c), Section 38.04, Penal Code.” The amendment
did not affect the classification of the offense of evading using a vehicle. Id.
42
actor may use “in a person may be evading using a
flight”. Id. at 926. fleeing from for vehicle from state
purposes of the jail felony to third
offense. Id. at 926. degree felony,
regardless of prior
conviction. Id. at
926.
Other appellate courts have attempted to reconcile the confusing
amendments to § 38.04 in an effort to determine whether evading with a vehicle
without a prior conviction is properly classified as a state jail felony or a third
degree felony. See Adetomiwa, 421 S.W.3d at 924-27; Mims v. State, 434 S.W.3d
265, 269-70 (Tex.App.—Houston [1st Dist.] 2014, no pet. h.)
In Adetomiwa, the Fort Worth court applied the Code Construction Act,
found at Texas Government Code Chapter 311, to determine whether the statute is
ambiguous, and if not, whether the different amendments could be reconciled.
Adetomiwa, 421 S.W.3d at 926. The Fort Worth court concluded that under TEX.
GOV’T CODE § 311.025 (b), the amendments were not irreconcilable, because
each amendment made a change that the others did not, resulting in a consistent
reading of the statute where the punishment for evading with a vehicle is classified
43
as a third degree felony. Id. The Adetomiwa court further found that even if the
provisions had been found to be irreconcilable, the amendment last enacted would
prevail under TEX. GOV’T. CODE § 311.025 (c). The Houston Appellate Court
found that amendments were irreconcilable, but adopted the same “last enacted”
reasoning as Adetomiwa. Mims v. State, 434 S.W.3d at 270.
C. The Court should not follow the decisions of the Houston
and Fort Worth courts of appeals, because the rule of lenity
dictates that an ambiguous statute should be interpreted in
favor of the Appellant.
Despite the statutory arguments forwarded by the Fort Worth and Houston
Courts, this Court should decline to apply the third degree felony classification that
resulted from the ambiguity injected into the statutory language by the 82nd
legislature. The Court should instead rely on application of the rule of lenity to
interpret the facially ambiguous provisions of TEX. PEN. CODE § 38.04 in favor
of the Appellant, and allow him to be sentenced to a state jail felony for the offense
of evading with a vehicle.
The Code Construction Act states in its general provisions that it is not the
exclusive source of rules for interpretation of statutes, but instead in meant to
“describe and clarify common situations in order to guide preparation and
construction of codes.” TEX. GOV’T CODE § 311.003.
44
The rule of lenity is a common law principle that proposes that when courts
“must choose between two reasonable readings of a statute to determine what
conduct the legislature intended to punish, courts apply the policy of lenity and
adopt the less harsh meaning.” Cuellar v. State, 70 S.W.3d 815, 821-22 (Tex.
Crim. App. 2002). The Court of Criminal Appeals recognized that Texas has long
adopted the rule of lenity, holding that:
“[T]he doctrine is fundamental in English and American law that there
can be no constructive offenses; that, before a man can be punished,
his case must be plainly and unmistakably within the statute, and, if
there be any fair doubt whether the statute embraces it, that doubt is
to be resolved in favor of the accused.”
Cuellar, 70 S.W.3d at 822 (quoting Murray v. State, 21 White & W. 620, 633, 2 S.W.
757, 761 (1886) (emphasis in original)). While the Texas Penal Code is not to be
strictly construed, it “shall be construed according to the fair import of their terms,
to promote justice and effect the objectives of the code.” TEX. PEN. CODE §
1.05(a); Ex parte Forward, 258 S.W.3d 151, 154 (Tex. Crim. App. 2008).
It is clear that the two different offense categories applied to evading with a
vehicle by SB 496, HB 3423, and SB 1416 are not reconcilable on their face.
While SB 496 and HB 3423 mandate that evading with a vehicle is a state jail
felony absent a prior conviction, SB 1416 classifies the offense as a third degree
felony for the first offense. The competing provisions are published in the official
reporter of Texas Statutes, adding to the confusion of the public who must receive
45
fair notice of the penalties associated with the commission of a criminal act.
Crandon v. United States, 494 U.S. 152, 158, 110 S. Ct. 997, 1002, 108 L. Ed. 2d
132 (1990) (stating that the rule of lenity serves to ensure that there is fair warning
of the boundaries of criminal conduct). The fact that the statute currently publishes
both versions of the offense of evading with a vehicle undermines the conclusion
that the previous amendments were invalidated by the subsequent adoption of SB
1416.
Moreover, the offense classification provisions from the three amendments
are not subject to differing interpretations of terms, but rather prescribe different
penalties for the exact same conduct. This type of conflicting construction can
only be resolved equitably relying on the principle that Appellant should be subject
to the lesser punishment.
D. Appellant’s voidable conviction of a third degree felony
instead of a state jail felony subjected him to the habitual
offender mandatory minimum sentencing enhancement.
The finding that Appellant is a habitual felon subject to the mandatory
minimum enhancements found at TEX. PEN. CODE § 12.42 (d) required a third
degree felony conviction. CR.1: 130-34. If Appellant had been convicted under
the SB 496 and HB 3423 versions of § 38.04, he would have been convicted of a
state jail felony and not be subject to the mandatory habitual offender
46
enhancements of TEX. PEN. CODE § 12.42 (d). The maximum punishment
available for a state jail felony with the enhancements found at TEX. PEN. CODE
§ 12.425 would have been twenty years, or the maximum punishment allowed for a
second degree felony pursuant to TEX. PEN. CODE § 12.33 (a). This is five years
less than the mandatory minimum to which he was subjected under § 12.42 (d) and
eighteen years less than his actual sentence.
The enhanced sentence is illegal because it relies upon an ambiguous statute,
and is therefore not authorized by law. See Ex parte Harris, 495 S.W.2d at 232;
Mizell v. State, 119 S.W.3d at 806. Appellant’s illegal sentence is fundamental
error, voiding his sentence ab initio. Harvill v. State, 13 S.W.3d at 482; Ex Parte
Hill, 528 S.W.2d at 126. Because this error caused Appellant harm, his illegal
sentence must be vacated, and his case remanded for re-sentencing.
VI. CONCLUSION
The trial court erred in refusing to include an instruction for a lesser included
offense of evading arrest on foot in the jury charge, which could have been
supported by the evidence presented at trial. Because the trial court’s error in
refusing to permit a instruction for a lesser included offense of evading on foot
resulted in material harm to Appellant, his sentence should be vacated, and he
should be granted a new trial.
47
The trial court further erred by allowing privileged testimony from
Appellant’s attorney in the related criminal case into evidence. Had the trial court
excluded this evidence, there would have been no direct evidence that Appellant
was the driver of the vehicle. The trial court’s error caused significant material
prejudice, meriting reversal.
The trial court further erred by relying on a state jail felony conviction as a
predicate offense for a habitual offender enhancement under TEX. PEN. CODE §
12.42 (d). The trial court’s error caused Appellant material harm as it resulted in
an illegal mandatory minimum sentence in excess of the maximum penalty to
which he would have been otherwise subjected. His sentence should be vacated
and his case remanded for re-sentencing.
The trial court finally erred by sentencing Appellant to a third-degree felony
for evading with a vehicle, when he was eligible for, at the maximum, a state jail
felony. The trial court’s error caused Appellant material harm as it resulted in an
illegal mandatory minimum sentence in excess of the maximum penalty to which
he would have been otherwise subjected. His sentence should be vacated and his
case remanded for re-sentencing.
PRAYER
48
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
vacate the trial court’s judgment of guilt and grant him a new trial. In the
alternative, Appellant prays that this Court vacate the trial court’s sentence and
remand his case for re-sentencing, or for such relief to which he may be entitled.
Respectfully submitted,
/s/ Abner Burnett
Abner Burnett
SBOT: 24065265
Email: aburnett@trla.org
/s/ Celestino A. Gallegos
Celestino A. Gallegos
Email: cgallegos@trla.org
SBOT: 24040942
Beeville Regional Public Defender
331A North Washington
Beeville, TX 78102
Tel: (361) 358-1925
Fax: (361) 358-5158
Attorneys for Appellant
49
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing brief was served
on the 156th Judicial District Attorney by e-filing notification on January 27, 2015.
/s/ Celestino A. Gallegos
Celestino A. Gallegos
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 9,210
words, including headers and footers.
/s/ Celestino A. Gallegos
Celestino A. Gallegos
50
APPENDIX
LEGISLATIVE HISTORY OF TEXAS PENAL CODE § 38.04
FROM THE 82ND LEGISLATURE
51
PUNISHMENT FOR THE OFFENSE OF EVADING..., 2011 Tex. Sess. Law...
2011 Tex. Sess. Law Serv. Ch. 391 (S.B. 496) (VERNON'S)
VERNON'S TEXAS SESSION LAW SERVICE 2011
Eighty-Second Legislature, 2011 Regular Session
Additions are indicated by Text; deletions by Text .
Vetoes are indicated by Text ;
stricken material by Text .
CHAPTER 391
S.B. No. 496
PUNISHMENT FOR THE OFFENSE OF EVADING ARREST OR DETENTION
AN ACT
relating to the punishment for the offense of evading arrest or detention.
Be it enacted by the Legislature of the State of Texas:
SECTION 1. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as follows:
<< TX PENAL § 38.04 >>
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if:
(A) the actor has been previously convicted under this section; or
(B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted
under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under
this section; or
(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing
to apprehend the actor while the actor is in flight; or
(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor
is fleeing to apprehend the actor while the actor is in flight.
(c) In this section:
(1) “Vehicle”[, “vehicle” ] has the meaning assigned by Section 541.201, Transportation Code.
(2) “Watercraft” has the meaning assigned by Section 49.01.
<< Note: TX PENAL § 38.04 >>
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
PUNISHMENT FOR THE OFFENSE OF EVADING..., 2011 Tex. Sess. Law...
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this
Act. An offense committed before the effective date of this Act is covered by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2011.
Passed the Senate on April 13, 2011: Yeas 31, Nays 0; passed the House on May 23, 2011: Yeas 142, Nays 0, one present
not voting.
Approved June 17, 2011.
Effective September 1, 2011.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...
2011 Tex. Sess. Law Serv. Ch. 839 (H.B. 3423) (VERNON'S)
VERNON'S TEXAS SESSION LAW SERVICE 2011
Eighty-Second Legislature, 2011 Regular Session
Additions are indicated by Text; deletions by Text .
Vetoes are indicated by Text ;
stricken material by Text .
CHAPTER 839
H.B. No. 3423
CERTAIN CRIMINAL OFFENSES COMMITTED IN RELATION TO A
FEDERAL SPECIAL INVESTIGATOR; PROVIDING CRIMINAL PENALTIES
AN ACT
relating to certain criminal offenses committed in relation to a federal special investigator; providing criminal penalties.
Be it enacted by the Legislature of the State of Texas:
SECTION 1. Section 1.07(a), Penal Code, is amended by adding Subdivision (46–b) to read as follows:
<< TX PENAL § 1.07 >>
(46–b) “Federal special investigator” means a person described by Article 2.122, Code of Criminal Procedure.
SECTION 2. The heading to Section 37.08, Penal Code, is amended to read as follows:
<< TX PENAL § 37.08 hd. >>
Sec. 37.08. FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT
EMPLOYEE.
SECTION 3. Section 37.08(a), Penal Code, is amended to read as follows:
<< TX PENAL § 37.08 >>
(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal
investigation and makes the statement to:
(1) a peace officer or federal special investigator conducting the investigation; or
(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the
actor knows is conducting the investigation.
SECTION 4. Sections 38.04(a) and (b), Penal Code, are amended to read as follows:
<< TX PENAL § 38.04 >>
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special
investigator attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if:
(A) the actor has been previously convicted under this section; or
(B) the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or
(B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the
actor is fleeing to apprehend the actor while the actor is in flight; or
(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer or investigator from
whom the actor is fleeing to apprehend the actor while the actor is in flight.
SECTION 5. The heading to Section 38.14, Penal Code, is amended to read as follows:
<< TX PENAL § 38.14 hd. >>
Sec. 38.14. TAKING OR ATTEMPTING TO TAKE WEAPON FROM PEACE OFFICER, FEDERAL SPECIAL
INVESTIGATOR, EMPLOYEE OR OFFICIAL OF CORRECTIONAL FACILITY, PAROLE OFFICER, COMMUNITY
SUPERVISION AND CORRECTIONS DEPARTMENT OFFICER, OR COMMISSIONED SECURITY OFFICER.
SECTION 6. Sections 38.14(b), (c), (d), and (e), Penal Code, are amended to read as follows:
<< TX PENAL § 38.14 >>
(b) A person commits an offense if the person intentionally or knowingly and with force takes or attempts to take from a peace
officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and
corrections department officer, or commissioned security officer the officer's, investigator's, employee's, or official's firearm,
nightstick, stun gun, or personal protection chemical dispensing device with the intention of harming the officer, investigator,
employee, or official or a third person.
(c) The actor is presumed to have known that the peace officer, federal special investigator, employee or official of a
correctional facility, parole officer, community supervision and corrections department officer, or commissioned security officer
was a peace officer, federal special investigator, employee or official of a correctional facility, parole officer, community
supervision and corrections department officer, or commissioned security officer if:
(1) the officer, investigator, employee, or official was wearing a distinctive uniform or badge indicating his employment; or
(2) the officer, investigator, employee, or official identified himself as a peace officer, federal special investigator,
employee or official of a correctional facility, parole officer, community supervision and corrections department officer, or
commissioned security officer.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...
(d) It is a defense to prosecution under this section that the defendant took or attempted to take the weapon from a peace
officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and
corrections department officer, or commissioned security officer who was using force against the defendant or another in excess
of the amount of force permitted by law.
(e) An offense under this section is:
(1) a felony of the third degree, if the defendant took a weapon described by Subsection (b) from an officer, investigator,
employee, or official described by that subsection; and
(2) a state jail felony, if the defendant attempted to take a weapon described by Subsection (b) from an officer, investigator,
employee, or official described by that subsection.
SECTION 7. This Act takes effect September 1, 2011.
Passed by the House on May 13, 2011: Yeas 144, Nays 0, 1 present, not voting; passed by the Senate on May 24, 2011:
Yeas 31, Nays 0.
Approved June 17, 2011.
Effective September 1, 2011.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...
2011 Tex. Sess. Law Serv. Ch. 920 (S.B. 1416) (VERNON'S)
VERNON'S TEXAS SESSION LAW SERVICE 2011
Eighty-Second Legislature, 2011 Regular Session
Additions are indicated by Text; deletions by Text .
Vetoes are indicated by Text ;
stricken material by Text .
CHAPTER 920
S.B. No. 1416
CREATION OF THE OFFENSE OF POSSESSION, MANUFACTURE, TRANSPORTATION, REPAIR, OR SALE
OF A TIRE DEFLATION DEVICE AND TO THE OFFENSE OF ATTEMPTING TO EVADE ARREST THROUGH
THE USE OF A VEHICLE OR A TIRE DEFLATION DEVICE; PROVIDING CRIMINAL PENALTIES
AN ACT
relating to the creation of the offense of possession, manufacture, transportation,
repair, or sale of a tire deflation device and to the offense of attempting to evade arrest
through the use of a vehicle or a tire deflation device; providing criminal penalties.
Be it enacted by the Legislature of the State of Texas:
SECTION 1. Section 46.01, Penal Code, is amended by adding Subdivision (17) to read as follows:
<< TX PENAL § 46.01 >>
(17) “Tire deflation device” means a device, including a caltrop or spike strip, that, when driven over, impedes or
stops the movement of a wheeled vehicle by puncturing one or more of the vehicle's tires. The term does not include
a traffic control device that:
(A) is designed to puncture one or more of a vehicle's tires when driven over in a specific direction; and
(B) has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns
motor vehicle operators of the traffic control device.
SECTION 2. Subsections (a), (d), and (e), Section 46.05, Penal Code, are amended to read as follows:
<< TX PENAL § 46.05 >>
(a) A person commits an offense if the person [he ] intentionally or knowingly possesses, manufactures, transports, repairs,
or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; [or ]
(9) a zip gun; or
(10) a tire deflation device.
(d) It is an affirmative defense to prosecution under this section that the actor's conduct:
(1) was incidental to dealing with a switchblade knife, springblade knife, [or ] short-barrel firearm, or tire deflation device
solely as an antique or curio; [or ]
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to
an organization, agency, or institution listed in Subsection (b); or
(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an
organization, agency, or institution listed in Subsection (b).
(e) An offense under Subsection (a)(1), (2), (3), (4), (7), (8), or (9) [this section ] is a felony of the third degree [unless it is
committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor ]. An offense under Subsection (a)
(10) is a state jail felony. An offense under Subsection (a)(5) or (6) is a Class A misdemeanor.
SECTION 3. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as follows:
<< TX PENAL § 38.04 >>
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if[:
[(A) ] the actor has been previously convicted under this section; [or
[(B) the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this
section; ]
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight [and the actor has been previously convicted under this section ];
[or ]
(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing
to apprehend the actor while the actor is in flight; or
(C) the actor uses a tire deflation device against the officer while the actor is in flight; or
(3) a felony of the second degree if:
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...
(A) another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend
the actor while the actor is in flight; or
(B) another suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while the
actor is in flight.
(c) In this section:
(1) “Vehicle”[, “vehicle” ] has the meaning assigned by Section 541.201, Transportation Code.
(2) “Tire deflation device” has the meaning assigned by Section 46.01.
<< Note: TX PENAL § 38.04 >>
SECTION 4. Section 38.04, Penal Code, as amended by this Act, applies only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the
offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 5. This Act takes effect September 1, 2011.
Passed the Senate on April 11, 2011: Yeas 31, Nays 0; the Senate concurred in House amendment on May 27, 2011: Yeas
31, Nays 0; passed the House, with amendment, on May 20, 2011: Yeas 147, Nays 0, two present not voting.
Approved June 17, 2011.
Effective September 1, 2011.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3