Brian Charles Jones v. State ( 2014 )


Menu:
  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-13-00410-CR
    BRIAN CHARLES JONES,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 40th District Court
    Ellis County, Texas
    Trial Court No. 36853CR
    MEMORANDUM OPINION
    In this appeal, appellant, Brian Charles Jones, challenges his conviction for
    evading arrest with a motor vehicle. See TEX. PENAL CODE ANN. § 38.04(a) (West Supp.
    2013). Because we conclude that the trial court properly determined that the charged
    offense was a third-degree felony, and because the record does not indicate that the trial
    court improperly considered extraneous-offense evidence during the punishment phase
    of trial, we affirm.
    I.     BACKGROUND
    Adam Sowder, a sergeant with the Ellis County Sheriff’s Office, testified that, on
    February 7, 2012, he observed a silver Oldsmobile Aurora traveling on Criddle Street in
    Ellis County, Texas. Sergeant Sowder stated that the driver of the Aurora committed
    numerous traffic violations, including failing to signal intent to turn right, failure to
    stop at a stop sign, and failure to stop at a designated stopping point. When the driver
    of the Aurora turned onto Williams Street, Sergeant Sowder activated the overhead
    emergency lights and siren on his vehicle. Despite the fact that Sergeant Sowder’s
    overhead emergency lights and siren had been activated, the driver of the Aurora did
    not stop. Sergeant Sowder described the scene as follows:
    The vehicle continued on to Williams. And at East Ross, I believe, there’s
    also another stop sign. At that stop sign again failed to signal intent,
    didn’t stop at the stop sign or the designated stopping point. The vehicle
    then turned onto East Ross and then began to pick up speed.
    When he began following the Aurora, Sergeant Sowder recalled driving at about
    twenty or twenty-five miles an hour; however, upon turning onto East Ross, Sergeant
    Sowder increased his speed to try to catch up with the Aurora. Sergeant Sowder
    estimated that the Aurora was travelling at seventy miles per hour in a thirty-mile-per-
    hour zone.
    Eventually, the driver of the Aurora “made a wide swing as if he was going to
    try to take the corner of Ross and Brown Street. The vehicle then jumped across—went
    across Brown Street striking the curb and then launching up into a tree and hitting a
    guide wire.” After catching up with the Aurora, Sergeant Sowder exited his patrol
    Jones v. State                                                                       Page 2
    vehicle with his duty weapon drawn. He saw the driver of the vehicle “trying to exit
    out real quickly out of the passenger side door.” Sergeant Sowder commanded the
    driver of the vehicle to “show us his hands” and “to get on the ground.” The driver put
    his hands in the air but refused to get on the ground. Sergeant Sowder “went up and
    grabbed the individual to help put him to the ground so that he could be put in
    handcuffs.” Later in his testimony, Sergeant Sowder identified appellant as the driver
    of the Aurora.
    Appellant was subsequently charged by indictment with evading arrest with a
    motor vehicle, a third-degree felony. See 
    id. § 38.04(b)(2)(A).
    The indictment also
    referenced two of appellant’s prior felony convictions for forgery and unlawful
    possession of a controlled substance. Thereafter, appellant filed a motion to quash the
    indictment, arguing that, in light of statutory amendments to the evading-arrest statute
    passed in 2011, the statutory penalty for the offense should be a state-jail felony, rather
    than a third-degree felony. After a hearing, the trial court denied appellant’s motion to
    quash.
    The case proceeded to trial before a jury. At the conclusion of the evidence, the
    jury found appellant guilty of the charged offense. Appellant elected for the trial court
    to assess punishment. Because appellant had been convicted of third-degree-felony
    evading arrest with a motor vehicle, and because appellant had two prior felony
    convictions, the trial court assessed punishment at life imprisonment in the Institutional
    Division of the Texas Department of Criminal Justice. Appellant filed a motion for new
    Jones v. State                                                                       Page 3
    trial, which was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This
    appeal followed.
    II.     THE PUNISHMENT RANGE
    In his first issue, appellant complains that he should have been punished for a
    state-jail felony, rather than a third-degree felony, because the relevant provision of the
    amendments to the evading-arrest-with-a-motor-vehicle statute is invalid.                      In other
    words, appellant challenges the validity of a provision to the amended evading-arrest-
    with-a-motor-vehicle statute that elevated the range of punishment for first-time
    offenders who commit the offense of evading arrest with a motor vehicle.
    On June 4, 2014, the Court of Criminal Appeals rejected this argument as it
    pertains to the evading-arrest-with-a-motor-vehicle statute. See generally Ex parte Jones,
    No. PD-1158-13, 2014 Tex. Crim. App. LEXIS 763 (Tex. Crim. App. June 4, 2014).1
    Specifically, the Court of Criminal Appeals recognized the following:
    As initially drafted in March 2011, Senate Bill 1416 added tire-deflation
    devices to the list of prohibited weapons in Section 46.05 of the Texas
    Penal Code in order to address the problems caused by their use in
    evading arrest and the resulting threat to the safety of law enforcement
    and the general public. . . .
    At the time at which each legislative chamber voted for its
    enactment, Senate Bill 1416’s title read, “An Act relating to the creation of
    the offense of possession, manufacture, transportation, repair, or sale of a
    tire deflation device; providing criminal penalties.” H.J. of Tex., 82nd
    Leg., R.S. 4375 (2011); see S.J. of Tex., 82nd Leg., R.S. 4150-51 (2011).
    Although the caption did not mention evading arrest, identical bills were
    adopted and passed by the Texas House of Representatives and the Texas
    1 See also Scott v. State, No. 10-13-00159-CR, 2014 Tex. App. LEXIS 3380, at **5-6 (Tex. App.—Waco
    Mar. 27, 2014, no pet.) (mem. op., not designated for publication) (citing Adetomiwa v. State, 
    421 S.W.3d 922
    , 924-27 (Tex. App.—Fort Worth 2014, no pet.)).
    Jones v. State                                                                                     Page 4
    Senate, and the substances of those bills included elevating the penalty for
    evading arrest in a motor vehicle. See H.J. of Tex., 82nd Leg., R.S. 4316
    (2011); S.J. of Tex., 82nd Leg., R.S. 4151 (2011) (passing bill).[2] More
    specifically, as enrolled and enacted, Senate Bill 1416 included five
    sections that (1) amended Section 46.01 of the Texas Penal Code to provide
    a definition of what constitutes a tire-deflation device, (2) amended
    Section 46.05 of the Texas Penal Code to make a tire-deflation device a
    prohibited weapon, (3) amended Section 38.04 of the Texas Penal Code to
    elevate the punishment range for first-time offenders evading arrest in a
    motor vehicle and to provide for penalties for offenses where a tire-
    deflation device is used while an actor is in flight, and (4) and (5) provided
    for an effective date of September 1, 2011. Subsequent to the adoption of
    the bill by the Legislature, the caption was made to conform to the
    substance of the bill that was passed; the caption specifically mentioned
    penalties for evading arrest in a motor vehicle.
    
    Id. at **4-7.
    Like the defendant in Ex parte Jones, appellant argues that Senate Bill 1416,
    which amended Section 38.04(b) of the Texas Penal Code, violates the single-subject
    2 As referenced by the Court of Criminal Appeals in Ex parte Jones, Senate Bill 1416 provided the
    following, in relevant part:
    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 3. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as
    follows:
    (b) An offense under this section is a Class A misdemeanor, except that the offense is: . . .
    (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] . . . .
    No. PD-1158-13, 2014 Tex. Crim. App. LEXIS 763, at **7-8 n.3 (Tex. Crim. App. June 4, 2014)
    (citing   Enrolled        Version      of    Senate      Bill    1416,     available     at
    http://www.capitol.state.tx.us/tlodocs/82R/billtext/pdf/SB1416F.pdf.)
    Jones v. State                                                                                              Page 5
    rule.    See TEX. CONST. art. III, § 35(a) (providing that “[n]o bill, (except general
    appropriation bills . . .) shall contain more than one subject”).
    However, in its analysis of Senate Bill 1416, the Court of Criminal Appeals stated
    that:
    The provisions in the bill have the same general subject: imposition of
    criminal penalties described in the Texas Penal Code for offenses
    involving motor vehicles. Furthermore, the provisions of the bill also
    have a mutual connection in that their enactment was intended to better
    protect law enforcement and the public from actors who evade arrest. . . .
    In applying the test to determine whether a particular enactment
    violates the single-subject rule, a reviewing court initially presumes the
    validity of the challenged statute and places the burden of proof on the
    statute’s challenger.     The court also liberally construes both the
    constitutional provision and the questioned statute in favor of
    constitutionality. Viewing Senate Bill 1416 in favor of finding it
    constitutionally compliant, we conclude that, because the penalties for the
    offenses described in the bill pertain to criminal offenses related to motor
    vehicles, they have a single subject, and because each of these offenses
    relates directly or indirectly to the offense of evading arrest, they have a
    mutual connection to one another.
    
    Id. at **11-14
    (internal citations omitted).
    Based on the foregoing, we cannot say that the trial court erred in denying
    appellant’s motion to quash the indictment based on appellant’s complaints about the
    2011 amendments to the evading-arrest-with-a-motor-vehicle statute.3 See State v. Moff,
    3 Appellant raises two alternative arguments in his first issue; however, both of these alternative
    arguments appear to be variations on his assertion that Senate Bill 1416 violates the single-subject rule.
    Because the Court of Criminal Appeals has concluded that Senate Bill 1416 does not violate the single-
    subject rule, we are not persuaded by appellant’s alternative arguments. See 
    id. at **11-14.
    However, to
    the extent that appellant argues that Senate Bill 1416 renders section 38.04 of the Texas Penal Code
    ambiguous, after applying the relevant rules of statutory construction, we disagree. See TEX. PENAL CODE
    ANN. § 38.04(b)(2) (providing that a person commits the offense of third-degree evading arrest if he
    intentionally flees from a person he knows is a peace officer or federal special investigator attempting
    lawfully to arrest or detain him using “a vehicle while the actor is in flight”); see also Dobbs v. State, No.
    PD-0259-13, 2014 Tex. Crim. App. LEXIS 908, at *16 (Tex. Crim. App. June 25, 2014) (“[A]s long as the
    Jones v. State                                                                                         Page 6
    
    154 S.W.3d 599
    , 601 (Tex. Crim. App. 2004) (providing that an appellate court reviews
    de novo a trial court’s denial of a motion to quash an indictment); see also DeVaughn v.
    State, 
    749 S.W.2d 62
    , 67 (Tex. Crim. App. 1988) (stating that a motion to quash should be
    granted only when the language describing the accused’s conduct is so vague or
    indefinite that it fails to give the accused adequate notice of the acts he allegedly
    committed). Accordingly, we overrule appellant’s first issue.
    III.    EXTRANEOUS-OFFENSE EVIDENCE DURING THE PUNISHMENT PHASE
    In his second issue, appellant asserts that the trial court abused its discretion in
    considering at the punishment phase of trial acts of alleged misconduct that had not
    been proven beyond a reasonable doubt.
    Section 3(a) of Article 37.07 of the Texas Code of Criminal Procedure allows the
    State to introduce during punishment relevant evidence of an extraneous crime or bad
    act so long as the evidence would allow a jury to conclude beyond a reasonable doubt
    that the defendant committed or could be held criminally responsible for the crime or
    act. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2013); see Smith v. State,
    
    227 S.W.3d 753
    , 759-60 & n.16 (Tex. Crim. App. 2007); see also Palomo v. State, 
    352 S.W.3d 87
    , 91-92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The trial court makes the
    meaning of a statute is not ambiguous or the application absurd, we are bound to apply the plain
    language of the statute as it is written . . . .”); Luna v. State, 
    402 S.W.3d 849
    , 851 (Tex. App.—Amarillo
    2013, no pet.) (“Upon looking at the statutory verbiage (of section 38.04 of the Texas Penal Code), the
    Court encountered ‘nothing ambiguous about the’ language.” (quoting Calton v. State, 
    176 S.W.3d 231
    , 234
    (Tex. Crim. App. 2005))). We believe that appellant’s interpretation of the amendments renders the
    amendments irreconcilable. See TEX. GOV’T CODE ANN. § 311.025(b) (West 2013) (“Except as provided by
    Section 311.031(d), if amendments to the same statute are enacted at the same session of the legislature,
    one amendment without reference to another, the amendments shall be harmonized, if possible, so that
    effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment
    prevails.”).
    Jones v. State                                                                                     Page 7
    threshold decision regarding admissibility and may not admit extraneous-offense
    evidence unless the evidence is such that a jury could rationally find the defendant
    criminally responsible for the extraneous offense. See 
    Smith, 227 S.W.3d at 759-60
    ; see
    also 
    Palomo, 352 S.W.3d at 92
    .        Ultimately, the factfinder must decide whether the
    extraneous offense was proven beyond a reasonable doubt. 
    Palomo, 352 S.W.3d at 92
    .
    We review a trial court’s decision to admit or exclude extraneous-offense evidence
    during punishment for an abuse of discretion. See Mitchell v. State, 
    931 S.W.2d 950
    , 953
    (Tex. Crim. App. 1996) (plurality op.).
    During the punishment phase of trial, Tony Price, an investigator with the Ellis
    County Sheriff’s Office, testified that he is familiar with appellant. Price explained that
    he first became acquainted with appellant in December 2011, when several complaints
    were made about possible drug activity at a house owned by appellant. With the
    assistance of a confidential informant, law enforcement obtained a warrant to search
    appellant’s house. On February 1, 2012, law enforcement executed the search warrant
    and found two syringes—one with a clear substance and the other with a red
    substance—a small, plastic baggy with what Price believed to be marihuana, and a
    round, red plate that “had the green, leafy substance which was mari[h]uana.”
    Thereafter, Price submitted the items seized from appellant’s house for testing.4 Price
    noted that, based on the results of the tests, appellant was charged with possession of a
    Lab tests showed that both of the syringes and the plastic baggy contained varying amounts of
    4
    methamphetamine.
    Jones v. State                                                                               Page 8
    controlled substance under one gram, unlawful possession of a firearm, and possession
    of marihuana under two ounces.
    At this point in Price’s testimony, appellant objected, arguing that “there’s
    insufficient affirmative links tying these materials to Mr. Jones. And, of course, the
    Court’s aware that the State has to prove the offense beyond a reasonable doubt for the
    Court to consider it in the punishment phase.” The trial court overruled appellant’s
    objection.
    On cross-examination, Price acknowledged that appellant lived in the house with
    a woman and that appellant was not present at the house when the search took place.
    Price also testified that the plate was found in the living room that was set up as a
    bedroom. Police found the plastic baggy containing marihuana and the clear syringe in
    the bathroom connected to the master bedroom. Additionally, the syringe with a red
    substance “was found attached to the back of the freezer or the ice maker in the freezer
    of the kitchen.” Later, Price admitted that appellant’s ownership of the house is the
    only fact linking appellant to the substances found inside his house.
    Also during the punishment phase, Nicholas Schindler, an investigator with the
    Ellis County Sheriff’s Office, testified that, on October 25, 2012, he and another
    investigator encountered appellant while trying to serve a warrant on Dillon
    Murchison.       When they realized that Murchison was not home, Schindler and
    Investigator Thompson parked their patrol car near Murchison’s house to wait.
    Eventually, a vehicle identified as Murchison’s pulled into the driveway of the house.
    Schindler and Thompson positioned their patrol car behind Murchison’s vehicle and
    Jones v. State                                                                    Page 9
    attempted to make contact with the occupants of the vehicle. Apparently, two males
    and two females were inside Murchison’s vehicle. When the investigators, who were
    wearing raid vests with the sheriff’s department’s name on the front, ordered the
    occupants to exit the vehicle, appellant, who was one of the passengers in the vehicle,
    took off running. Appellant was eventually apprehended.
    Prior to closing arguments, appellant moved the trial court to disregard the
    testimony about the Murchison incident because “there’s absolutely no offense
    whatsoever proved on that.”           After hearing arguments, the trial court denied
    appellant’s motion to disregard. However, the trial court later noted the following:
    Now I want to be clear on this point. Immediately before beginning
    closing arguments, or rather at the close of the State’s case when the State
    rested before you began to put on your evidence, you made a procedural
    motion to disregard the evidence. The Trial Court may have questioned
    the motion or denied the motion, but I want to be clear that any concerns that
    you may have are included within the Trial Court’s deliberation of this matter
    that the Trial Court finds the State has failed to prove any of its extraneous
    offenses beyond a reasonable doubt and they will not be included within the Trial
    Court’s consideration and punishment in this case.
    (Emphasis added).
    Based on the trial court’s statement in open court, there is nothing in the record
    demonstrating that the trial court improperly considered extraneous-offense evidence
    that was not proven beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art.
    37.07, § 3(a); see also 
    Smith, 227 S.W.3d at 759-60
    ; 
    Palomo, 352 S.W.3d at 92
    . And even if
    the trial court did consider the complained-of extraneous-offense evidence, appellant
    has not shown that he suffered any harm. See TEX. R. APP. P. 44.2(b) (“Any other error,
    defect, irregularity, or variance that does not affect substantial rights must be
    Jones v. State                                                                              Page 10
    disregarded.”); King v. State, 
    953 S.W.2d 266
    , 271 (Tex. Crim. App. 1997) (“A substantial
    right is affected when the error had a substantial and injurious effect or influence in
    determining the [factfinder’s] verdict.”); see also Johnson v. State, 
    967 S.W.2d 410
    , 417
    (Tex. Crim. App. 1998) (“A criminal conviction should not be overturned for non-
    constitutional error if the appellate court, after examining the record as a whole, has fair
    assurance that the error did not influence the jury, or had but a slight effect.”).
    In its closing argument, the State requested that the trial court impose a “very
    long sentence.” Contrary to appellant’s assertion, the mere fact that the trial court
    agreed with the State’s recommendation and sentenced appellant to life imprisonment
    does not conclusively demonstrate that the trial court improperly considered
    extraneous-offense evidence. This is especially true considering appellant’s extensive
    criminal history that was properly admitted into evidence, including multiple felony
    convictions for possession of a controlled substance, a felony conviction for possession
    of anhydrous ammonia in an unapproved container, a felony conviction for possession
    and transport of certain chemicals with intent to manufacture, a felony conviction for
    assault on a public servant, a felony conviction for retaliation, multiple felony
    convictions for forgery, a conviction for class A misdemeanor assault—family violence,
    and a conviction for theft in an amount greater than $50 but less than $500. See 
    King, 953 S.W.2d at 273
    (stating that the potential harm of the complained-of evidence can be
    “defused by properly admitted evidence”). Therefore, we cannot say that the trial court
    abused its discretion if it had considered the complained-of extraneous-offense
    Jones v. State                                                                        Page 11
    evidence. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a); see also 
    Mitchell, 931 S.W.2d at 953
    ; 
    Palomo, 352 S.W.3d at 92
    . We overrule appellant’s second issue.
    IV.    CONCLUSION
    Having overruled both of appellant’s issues on appeal, we affirm the judgment
    of the trial court.
    AL SCOGGINS
    Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed September 11, 2014
    Do not publish
    [CRPM]
    Jones v. State                                                                     Page 12