Frank Whitfield v. State ( 2016 )

Opinion issued June 9, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00336-CR
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FRANK WHITFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1378719
MEMORANDUM OPINION
Frank Whitfield pleaded guilty to evading arrest. Because he had been
previously convicted of two felonies, the trial court imposed the minimum
sentence of 25 years. Whitfield argues that his sentence should be modified to
reflect a lesser sentence because (1) the trial court failed to consider evidence that
would support deferred adjudication and (2) his offense is a state-jail felony with a
lower sentence range. We affirm.
Background
The police initiated a traffic stop when the officers observed Whitfield
failing to stop at a stop sign. He gave the police his identification, and the police
told him that they intended to search his vehicle. At that point, Whitfield left the
scene and drove directly to his house, which was less than two miles away. He
parked in the driveway. The police physically restrained him as he was walking
toward his front door and arrested him.
The indictment asserts that Whitfield intentionally fled from police who
were attempting to detain him and “used a motor vehicle while he was in flight.”
The indictment includes allegations that Whitfield had two prior felony
convictions: a 1992 attempted burglary of a habitation and a 2001 burglary of a
habitation.
In March 2014, the trial court accepted Whitfield’s plea of guilty for the
offense of evading arrest and his pleas of true to the two prior felonies. Along with
his plea, Whitfield signed “admonishments” given by the court. These included the
following:
Habitual Offender: if it is shown on the trial of a felony offense that
the defendant has previously been finally convicted of two felony
offenses . . . , on conviction he shall be punished by imprisonment . . .
not less than 25 years;
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Whitfield initialed next to the admonishment. Other surrounding admonishments
were stricken through.
Whitfield pleaded guilty without an agreed sentence recommendation and
with, instead, an understanding that a presentence investigation report would be
prepared for the court’s consideration. Whitfield asked the court to grant him
“probation or deferred adjudication.” He acknowledged that he was already on
parole for an earlier conviction. While discussing the possibility of probation for
this offense and the rules that would be imposed on him if it were granted, the
following exchange occurred between the State’s attorney and Whitfield:
Q: And if you don’t follow those rules, you understand you can go
back to TDC—
A: Yes, sir.
Q: —for 25 years to life in prison, correct?
A: Yes, sir.
At the conclusion of the hearing, Whitfield urged the trial court to grant probation.
The State asked that he “be sentenced to the minimum, here, minimum 25 years
TDC . . . .” The trial court deferred its ruling.
At a hearing almost one full year later, the trial court discussed the
“dilemma” of choosing between deferred adjudication or a sentence that was
statutorily required to be at least 25 years’ confinement. The court specifically
noted that he discussed the minimum sentence requirements with defense counsel.
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The court also noted that Whitfield was requesting that the deferred adjudication
run concurrently with his probation for the burglary conviction.
The trial court discussed the materials it found relevant to its decision to
deny deferred adjudication and impose a minimum sentence: statements in the pre-
sentence investigation report that Whitfield had no problems while on probation
and had not tested positive for any drug tests; Whitfield’s explanation that he fled
from the traffic stop because he was in fear of the police; evidence that Whitfield
drove directly to his home less than two miles away when he fled; letters submitted
by several people supporting a lenient outcome; and evidence that Whitfield was
taking multiple medications following a recent battle against cancer. The trial court
weighed that information against Whitfield’s criminal history, which included a
felony of attempted burglary and another felony of burglary, Whitfield’s denial
that he owned the “crack pipe” the police found in his car when he was arrested,
and Whitfield’s assertion that the pipe was part of a police “set up.”
The trial court announced its ruling by stating that, “as regrettable as it is,”
the court was sentencing Whitfield to the minimum of 25 years. Immediately
following the announcement of the sentence, the trial court stated, “And for the
record the Court feels this kind of case probably should be less than 25 years
minimum.” The trial court denied Whitfield’s motion for new trial. Whitfield
appealed.
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Challenge to Sentence Imposed
In a single issue, Whitfield contends that his sentence should be modified “to
reflect a lesser sentence according to [Sections] 12.42a(2) and 12.35 of the Texas
Penal Code.” Whitfield presents two arguments within this single issue. First, he
argues that the trial court “failed to consider” various evidence that would support
deferred adjudication. Second, he argues that this offense is a state-jail felony
subject to enhancement under the habitual-felony-offender statute to a second-
degree felony with a punishment range between two and 20 years, not a minimum
sentence of 25 years. The trial court erred, according to Whitfield, by sentencing
him to a period of confinement in excess of the 20-year maximum.
A. Standard of review and applicable law
After a plea of guilty, a judge may defer or suspend the imposition of a
sentence and order community supervision if that is “in the best interest of justice,
the public, and the defendant.” TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(a)
(West 2015). The court has “absolute and unreviewable discretion” to grant or
deny the defendant’s request. Saldana v. State, 493 S.W.2d 778, 778 (Tex. Crim.
App. 1973); see Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979).
If a trial court exercises its “absolute” discretion not to grant community
supervision and the State demonstrates that the defendant is a habitual felony
offender, the trial court cannot impose a sentence outside of the range specified in
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the sentencing statute for habitual offenders. See, e.g., TEX. PENAL CODE ANN.
§ 12.42(d) (West 2015) (stating that defendant “shall be punished . . . for any term
of not more than 99 years or less than 25 years” if habitual felony offender).
To the extent we must construe the Penal Code to determine the applicable
punishment range, we are presented with a legal question that we review de novo.
See State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (holding that statutory
construction presents a legal question reviewed de novo).
B. Denial of deferred adjudication
Trial courts are granted a large degree of discretion to determine whether to
defer or suspend a criminal sentence. See Saldana, 493 S.W.2d at 778. The trial
court indicated that it reviewed the materials presented to it, including the
presentence investigation report and Whitfield’s testimony, before rejecting
Whitfield’s request that his sentence be deferred. We will not supplant the court’s
reasoned judgment on this issue with our own.
C. Correct sentence range
A person commits an offense of evading arrest or detention if he
“intentionally flees from a person he knows is a peace officer . . . attempting
lawfully to arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a) (West 2015).
The statute was amended in 2011 to designate the offense a state-jail felony if the
actor uses a vehicle while in flight but a third-degree felony if the actor uses a
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vehicle and has been previously convicted under the section. Id. § 38.04(b)(1–2),
as amended by Acts 2011, 82nd Leg., ch. 391 (S.B. 496), § 1 and Acts 2011, 82nd
Leg., ch. 839 (H.B. 3423), § 4.
The statute was amended a second time—also in 2011—to further change
Subsection (b). Id. § 38.04(b)(1–2), as amended by Acts 2011, 82nd Leg., ch. 839
(H.B. 3423), § 4 and Acts 2011, 82nd Leg., ch. 920 (S.B. 1416), § 3. Under the
revised Subsection (b), the offense is a state-jail felony if the actor has been
previously convicted under the section but a third-degree felony if the actor uses a
vehicle while in flight regardless of any prior convictions under the section. The
second amendment to Subsection (b) resolves the issue in this appeal. See
Adetomiwa v. State, 421 S.W.3d 922, 925–27 (Tex. App.—Fort Worth 2014, no
pet.) (discussing multiple amendments to evading arrest statute).
Whitfield’s view of the applicable punishment range is based on the first
version of Subsection (b), which specified that the offense of evading an arrest
with a vehicle is a state-jail felony unless there had been a prior conviction under
the section. But that is not the version that applies to his 2013 offense. The more
recent version of Subsection (b) applies, and it provides that an offense is a third-
degree felony if one uses a vehicle, regardless if there has been a prior conviction.
TEX. PENAL CODE ANN. § 38.04(b); Ex parte Carner, 364 S.W.3d 896, 899 n.5
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(Tex. Crim. App. 2012); see Mims v. State, 434 S.W.3d 265, 270 (Tex. App.—
Houston [1st Dist.] 2014, no pet.).
Because Whitfield was charged with evading arrest with a motor vehicle, the
offense is a third-degree felony and his punishment is subject to enhancement by
the habitual-felony-offender statute. See TEX. PENAL CODE ANN. § 12.42(d)
(providing that felony offense, other than state-jail felony, is subject to punishment
enhancement if actor has two prior final felony convictions). Accordingly, we must
look at the enhancement allegations to which Whitfield pleaded true to determine
if they qualify.
The 2001 burglary of a habitation is a second-degree felony. TEX. PENAL
CODE ANN. § 30.02(c)(2) (West 2011). The 1998 conviction for attempted burglary
of a habitation is a third-degree felony. See id. (noting burglary of habitation is
second-degree felony); Id. § 15.01(d) (West 2011) (stating that “attempted”
offense is one punishment category lower than offense). Because both
enhancement offenses were felonies, they enhanced the punishment for evading
arrest from what would have been a two to 20 year range to a 25 to life range. Id.
§ 12.42(d). As a result, the minimum sentence the trial court could impose—if it
did not grant the request for deferred adjudication—was 25 years’ confinement.
See Adetomiwa, 421 S.W.3d at 924–27 (rejecting similar argument by defendant
that evading arrest with vehicle was only state-jail felony).
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The record indicates that this information was conveyed to Whitfield,
including through the trial court’s admonishments.
Because the trial court imposed a punishment within the range specified in
the habitual-felony-offender statute, we conclude that the trial court did not abuse
its discretion. See Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).
Conclusion
We affirm Whitfield’s conviction.
Harvey Brown
Justice
Panel consists of Justices Bland, Brown, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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