                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION

                                         No. 04-18-00529-CR

                                     Edward Earldonte FULTON,
                                             Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CR12590
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: July 31, 2019

AFFIRMED

           Appellant Edward Earldonte Fulton was convicted of evading arrest with a vehicle and

pled true to two enhancement paragraphs. On June 28, 2018, the trial court assessed punishment

at twenty-five years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. In his sole issue on appeal, Fulton contends the irreconcilable sentencing

provisions within Texas Penal Code section 38.04 should limit Fulton’s maximum sentence to

twenty years’ confinement. Because reconciling the 2011 Legislature’s provisions within section

38.04 is well settled, we affirm the trial court’s judgment.
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                          FACTUAL AND PROCEDURAL BACKGROUND

       Shortly after midnight on July 28, 2017, San Antonio Police Officer Hugo Hernandez, and

his partner, Officer Sergio Villanueva, initiated a traffic stop of a tan Suburban being driven by

Fulton, the sole occupant of the vehicle. Officer Hernandez approached the driver’s door; when

Fulton failed to timely produce identification, Officer Hernandez reached inside the vehicle

through the window, unlocked the doors, and ordered Fulton to exit the vehicle. Fulton began to

comply, but then pulled the door shut and sped away. The officers’ attempt to catch up to Fulton

was unsuccessful.

       San Antonio police officers located the vehicle later that same night. Based on the

information found in the vehicle, officers connected Fulton to the vehicle. Officer Hernandez

immediately identified Fulton, from a mugshot, as the individual that previously evaded arrest.

Fulton was subsequently charged by indictment with felony evading arrest with a vehicle; the

indictment included two enhancement paragraphs pertaining to punishment.

       On June 28, 2018, a Bexar County jury found Fulton guilty. Fulton elected to proceed with

sentencing before the trial court. After pleading true to both enhancement paragraphs, the trial

court sentenced Fulton, as a habitual offender, to twenty-five years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice.

       On appeal, Fulton contends the multiple sentencing provisions in Texas Penal Code section

38.04 are irreconcilable. He argues that his substantial rights were violated because he was

sentenced outside the permissible sentencing range.

                              TEXAS PENAL CODE SECTION 38.04

A.     Standard of Review

       When deciding issues related to statutory construction, appellate courts apply a de novo

standard of review. Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). In doing so, we


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“seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.”

Id. (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).

B.     Arguments of the Parties

       Fulton contends the sentencing provisions within Texas Penal Code section 38.04 are

irreconcilable and he should have received no more than twenty years’ confinement in the Texas

Department of Criminal Justice. See TEX. PENAL CODE ANN. § 38.04.

       The State counters that evading arrest or detention in a motor vehicle—the offense of which

Fulton was convicted—is a third-degree felony under section 38.04(b)(2)(A) and thus properly

enhanced to the habitual punishment range with two prior convictions. See id. at § 38.04(b)(2)(A).

C.     Texas Penal Code Section 38.04

       In Ex parte Jones, the Texas Court of Criminal Appeals addressed the 2011 Legislature’s

elevation of section 308.04(b)(2)(A)’s punishment for first-time offenders convicted of

committing evading arrest with a motor vehicle to a third-degree felony. 440 S.W.3d 628, 629

(Tex. Crim. App. 2014). Jones, indicted for evading arrest with a motor vehicle, challenged the

validity of a provision within that amendment that elevated the range of punishment for offenders

committing the offense of evading arrest with a motor vehicle without having committed a prior

evading arrest. See id. Compare TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (punishing offense as

third-degree felony), with Act of June 19, 2009, 81st Leg., R.S., ch. 1400, 2009 Tex. Gen. Laws

4385, 4386, amended by Act of June 17, 2011, 82d Leg., R.S., ch. 920, § 3, 2011 Tex. Gen. Laws

2321, 2322 (punishing offense as state-jail felony). The court explained the provisions’ purpose

was to increase “criminal penalties for offenses related to motor vehicles to better protect law

enforcement and the public from actors who evade arrest. Jones, 440 S.W.3d at 630.

       Although Fulton contends the different versions are irreconcilable, the amendment can be

harmonized “because each amendment makes a substantive chang[e] the other does not.”


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Adetomiwa v. State, 421 S.W.3d 922, 927 (Tex. App.—Fort Worth 2014, no pet.). Fulton does

not contest the jury’s finding that he was intentionally fleeing from a person he knew was a peace

officer attempting to lawfully arrest or detain him. See TEX. PENAL CODE ANN. § 38.04(a). Fulton

also does not challenge the jury’s finding that he used a vehicle while committing the offense of

evading arrest. This court previously held “[t]he use of a vehicle now elevates evading arrest to a

third-degree felony, without the added requirement of proof of a prior conviction.” Franco v.

State, No. 04-13-0096-CR, 2015 WL 3616057, at *4 (Tex. App.—San Antonio June 10, 2015)

(mem. op., not designated for publication); accord Adetomiwa, 421 S.W.3d at 927.

       Because using a vehicle during the commission of evading arrest is a third-degree felony

under Texas Penal Code section 38.04(b)(2)(A), we overrule Fulton’s sole issue on appeal and

affirm the trial court’s judgment. See Jones, 440 S.W.3d at 629; Franco, 2015 WL 3616057, at

*4; Adetomiwa, 421 S.W.3d at 927.

                                                 Patricia O. Alvarez, Justice

Publish




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