      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00477-CR



                             Charles Michael Woodard, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 67461, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Charles Michael Woodard pled guilty to the offense of evading arrest with a

motor vehicle, a state-jail felony punishable as a third-degree felony because of a deadly-weapon

finding, and the jury assessed punishment, enhanced by a prior felony conviction, at eight years

in prison and a $2,000 fine. See Tex. Penal Code Ann. §§ 12.33 (West 2011), 12.35(c), 12.425(c),

38.04(a), (b)(1)(B) (West Supp. 2011).1

               Woodard’s court-appointed attorney has filed a motion to withdraw supported by

a brief concluding that this appeal is frivolous and without merit. The brief meets the requirements

of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional evaluation of the

records demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio,




       1
         Because recent amendments to the penal code and code of criminal procedure did not
change the substance of the statutes relevant to this appeal, we cite to their current version.
488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972);

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Woodard received a copy of counsel’s

brief and was advised of his right to examine the appellate record and to file a pro se brief. See

Anders, 386 U.S. at 744.

               Woodard filed a pro se brief that “does not contest [his] conviction, only

enhancements and excessive sentence.” Woodard argues that the proper punishment range was for

a “class 4 felony punishable by 6 months to 2 years [in] state jail.” We will briefly explain why his

contentions lack arguable merit. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009);

Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

               To preserve alleged error related to excessive punishment, a defendant must have

made a timely request, objection, or motion in the trial court. Tex. R. App. P. 33.1(a)(1); Castaneda

v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); see also Gilmore v. State, Nos. 03-

03-10-00740-CR, 03-10-00751-CR, 03-10-00752-CR, 2011 Tex. App. LEXIS 6518, at * 2

(Tex. App.—Austin Aug. 16, 2011, no pet.) (mem. op., not designated for publication). Woodard

did not object to his sentence when it was pronounced, did not file a motion for new trial raising the

excessive-punishment issue, and has not argued that such objection was unnecessary.

               Further, even if error were preserved, punishment that is within the statutory range

is not cruel, unusual, or excessive. Poe v. State, 513 S.W.2d 545, 548 (Tex. Crim. App. 1974); Kirk

v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). Woodard’s eight-year sentence

and $2,000 fine were within the statutorily permissible punishment range for his offense—as the



                                                  2
State notes, it is less than half of the maximum possible term and fine for which he was eligible. See

Tex. Penal Code Ann. §§ 38.04(a), (b)(1)(B) (providing that evading arrest is state-jail felony if actor

uses vehicle while in flight and had not previously been convicted under that section),12.35(c)

(providing that affirmative deadly-weapon finding elevates state-jail felony to third-degree felony),

12.425(c) (increasing punishment level of state-jail felony with deadly-weapon finding under

12.35(c) to second-degree felony if it is shown that defendant had prior final felony conviction

for something other than state-jail felony), 12.33 (authorizing imprisonment for 2-20 years and

fine up to $10,000 for second-degree felony conviction). As such, Woodard’s argument that the jury

imposed an excessive sentence lacks arguable merit.

                Woodard also complained that four of his five prior felony convictions were part

of a single criminal episode and should be treated as one felony conviction during sentencing. At

sentencing, the jury heard evidence of Woodard’s five prior felony offenses in Florida. After the jury

made its affirmative deadly-weapon finding, Woodard’s punishment level increased from a state-jail

felony to a third-degree felony, and the jury needed to find true only one prior felony conviction

to enhance Woodard’s punishment to a second-degree felony. See id. § 12.35(c) (providing that

affirmative deadly-weapon finding elevates state-jail felony to third-degree felony). The judgment

reflects that the jury did find an enhancement paragraph true. See id. § 12.425(c) (increasing

punishment level of state-jail felony with deadly-weapon finding under 12.35(c) to second-degree

felony if it is shown that defendant had prior final felony conviction for something other than state-

jail felony). Thus, Woodard’s complaint that four of his prior felonies should count as a single

conviction makes no difference here and lacks arguable merit.



                                                   3
                Within his complaint about sentencing, Woodard argued that the prosecutor’s use

of a parole-guidelines chart misled jurors into thinking that Woodard would serve only half of

an eight-year sentence. Woodard failed to preserve error by objecting to the chart at trial, and the

chart is not in the record. See Tex. R. App. P. 33.1(a). Further, even if this error were preserved,

the record reflects that the district court properly charged the jury that Woodard would not be eligible

for parole until his actual time served equaled the lesser of one-half the sentence imposed

or thirty years, without consideration of any good-conduct time. See Tex. Code Crim. Proc. Ann.

art. 37.07(4)(a) (West Supp. 2011) (specifying jury charge used in penalty phase of trial for felony

offenses that include deadly-weapon finding). The court also charged the jury that the way parole

law and good conduct time might be applied to this defendant cannot be predicted accurately

and parole eligibility does not guarantee a parole grant. See id. Thus, the complaint that the jury was

misled about the effect of parole on Woodard’s sentence lacks arguable merit.

                Woodard also complains generally that he was “not guilty of exhibiting a

deadly weapon” because he “drove normal[l]y and safely until startled.” We construe this complaint

as a challenge to the sufficiency of the evidence supporting the jury’s deadly-weapon finding. In a

challenge to the sufficiency of evidence, the only question presented is whether, after viewing all

the evidence in the light most favorable to the verdict, a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Despite Woodard’s

contention that he drove normally and safely, the jury heard Officer Rafael Crispin of the

Killen Police Department testify that Woodard drove his Ford Expedition in the center dividing lane



                                                   4
of a roadway that had only northbound and southbound travel lanes, moved in and out of vehicle

traffic, nearly collided with another vehicle at an intersection, proceeded through an active 20-mile-

per-hour school zone around 3:45p.m. going approximately 70 miles per hour, struck a street sign

and a fire hydrant that sheared off the left front rim and tire of the Expedition, and continued driving

about one block further until the inoperable vehicle stopped and Woodard fled on foot. The jury

also saw a patrol-car videorecording of these events. The trier of fact is responsible for resolving

conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic

facts to ultimate facts. Jackson, 443 U.S. at 319. Thus, Woodard’s challenge to the deadly-weapon

finding lacks arguable merit because it fails to view the evidence in the light most favorable to

the jury’s verdict.

                Having reviewed the record as well as briefs from Woodard, his counsel, and the

State, we find no reversible error. See Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d at 826-27.

We agree with counsel that the appeal is frivolous, and his motion to withdraw is granted.

                The judgment of conviction is affirmed.




                                                Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: April 11, 2012

Do Not Publish



                                                   5
