Opinion filed August 28, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00279-CR
                                    __________

             CHRISTOPHER REED WHITLEY, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 259th District Court
                                 Jones County, Texas
                           Trial Court Cause No. 010799



                      MEMORANDUM OPINION
      The jury convicted Christopher Reed Whitley of evading arrest or detention
in a motor vehicle. The trial court assessed Appellant’s punishment at confinement
for nine years. Appellant raises two issues on appeal. We affirm.
      On the date of the offense, as Officer Randy Guerra, a City of Hamlin police
officer, sat at a stoplight, he heard the sound of tires squealing and saw a red Mustang
being “accelerate[d] to the point where it fishtailed onto the turning lane.” The
Mustang ended up in the oncoming lane of traffic as it fishtailed. Officer Guerra
turned on his emergency lights and pursued Appellant’s vehicle. During the pursuit,
Officer Guerra “realized [Appellant] wasn’t stopping” and turned on his siren.
Officer Guerra testified that, as he chased the Mustang, he saw Appellant look at
him through the side mirror of the Mustang. Appellant drove erratically and hit his
brakes when the patrol vehicle got close to the Mustang. Each time this happened,
Officer Guerra saw Appellant smile as he kept driving. After over three miles of
pursuit, Appellant voluntarily stopped his vehicle, and Officer Guerra arrested him
for evading arrest or detention in a motor vehicle.
       After the jury found Appellant guilty, the trial court assessed Appellant’s
punishment and sentenced Appellant accordingly. See TEX. PENAL CODE ANN.
§ 38.04(b)(2)(A) (West Supp. 2014) (providing that, when one evades arrest, it is
classified as “a felony of the third degree if . . . the actor uses a vehicle while the
actor is in flight”).
       In Appellant’s first issue, he argues that the sentence imposed by the trial court
was unauthorized by law.         He contends that, when the legislature amended
Section 38.04 in 2011, it violated the single-subject rule under Article III, section 35
of the Texas Constitution. TEX. CONST. art. III, § 35(a) (providing “[n]o bill . . . shall
contain more than one subject”). In Appellant’s second issue, he argues that,
because the sentence was unauthorized by law, the doctrine of lenity combined with
Section 311.031(b) of the Texas Government Code mandate that Appellant be
punished for a state jail felony, not a third-degree felony. The State argues that
Appellant has not preserved these issues for review.            Regardless of whether
Appellant preserved these issues for review, the Court of Criminal Appeals and this
court have decided these issues counter to Appellant’s arguments.


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      In Jones, the defendant was convicted of evading arrest in a motor vehicle and
argued that Section 38.04 violated the single-subject rule under the Texas
Constitution. Ex parte Jones, 440 S.W.3d 628, 629 (Tex. Crim. App. 2014). The
court disagreed and held that the bill had a single subject because “the penalties for
the offenses described in the bill pertain to criminal offenses related to motor
vehicles.” Id. at 633. Consequently, even if Appellant had preserved this issue for
appeal, the trial court did not err. We overrule Appellant’s first issue.
      Recently, this court decided two cases that dispose of Appellant’s second
issue. See Reyes v. State, No. 11-13-00206-CR, 2015 WL 3799301, at *3 (Tex.
App.––Eastland June 18, 2015, pet. filed); Wise v. State, No. 11-13-00005-CR, 2014
WL 2810097, at *4–5 (Tex. App.––Eastland June 19, 2014, pet. ref’d) (mem. op.,
not designated for publication). Appellant argues that Section 311.031(b) of the
Government Code requires that the 2011 amendment to Section 38.04 of the Penal
Code that classified the offense as a state jail felony apply here. See TEX. GOV’T
CODE ANN. § 311.031(b) (West 2013) (providing that, “[i]f the penalty, forfeiture,
or punishment for any offense is reduced by a reenactment, revision, or amendment
of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be
imposed according to the statute as amended”); PENAL § 38.04.
      In Wise, we reviewed the issues presented by the multiple amendments passed
in the 2011 legislative session that amended Section 38.04.          Wise, 2014 WL
2810097, at *4–5. We held that reliance on Section 311.031(b) is misplaced because
recent amendments to Section 38.04 have not reduced the punishment for the offense
of evading arrest. Id. We concluded that Wise was properly sentenced under the
final amendment passed, which made evading arrest or detention in a motor vehicle
a third-degree felony. Id. at *5. Because Appellant was indicted and sentenced
under the same amendment to Section 38.04 of the Penal Code as the defendant in
Wise, the same reasoning applies here. See id.
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         Appellant further argues that the doctrine of lenity requires us to interpret the
ambiguous statute in his favor. See Reyes, 2015 WL 3799301, at *4 (discussing the
doctrine of lenity and its application to ambiguous statutes). However, in Reyes, we
analyzed whether the doctrine of lenity requires defendants to face state jail felony
rather than third-degree felony charges under Section 38.04. Reyes, 2015 WL
3799301, at *4. Because Section 38.04 is not ambiguous, the doctrine of lenity does
not apply here. Id. (citing Wise, 2014 WL 2810097, at *4–5). Consequently, the
trial court did not err when it sentenced Appellant. We overrule Appellant’s second
issue.
         We affirm the judgment of the trial court.




                                                        JIM R. WRIGHT
                                                        CHIEF JUSTICE


August 28, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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