                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-405-CR
                               NO. 2-07-406-CR


WESLEY L. LEE                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant Wesley L. Lee was charged in two separate indictments with

the offenses of unauthorized use of a vehicle (No. 2-07-405-CR on appeal) and

evading arrest or detention using a vehicle (No. 2-07-406-CR on appeal). Upon

his plea of not guilty to unauthorized use of a motor vehicle, the jury convicted

him, and the trial court sentenced him to two years’ confinement in a state jail


      1
          … See Tex. R. App. P. 47.4.
facility. Upon his plea of guilty to evading arrest or detention using a vehicle,

the trial court convicted him and sentenced him to two years’ confinement in

a state jail facility.   The trial court ordered the sentences to be served

consecutively.

      In two points, Appellant contends (1) that the trial court committed

reversible error and abused its discretion in proceeding to a nonjury trial in the

evading arrest case because Appellant did not execute a written jury waiver

that was consented to in writing by the State and approved by the trial court

and (2) that the trial court reversibly erred and abused its discretion in finding

him guilty and cumulating his sentences because the two cases involved

multiple prosecution and punishment of the same conduct. The State concedes

and we agree that the trial court erred in cumulating the sentences.

Accordingly, we affirm the trial court’s judgments as modified.

                          Written Waiver of Jury Trial

      Article 1.13 of the code of criminal procedure requires that

      [t]he defendant in a criminal prosecution for any offense other than
      a capital felony case in which the State notifies the court and the
      defendant that it will seek the death penalty shall have the right,
      upon entering a plea, to waive the right of trial by jury, conditioned,
      however, that such waiver must be made in person by the
      defendant in writing in open court with the consent and approval
      of the court, and the attorney representing the State. The consent
      and approval by the court shall be entered of record on the minutes
      of the court, and the consent and approval of the attorney

                                        2
       representing the State shall be in writing, signed by him, and filed
       in the papers of the cause before the defendant enters his plea. 2

This language appears to be mandatory and unequivocal. It is the codification

of the constitutional right to trial by a jury, under both the state and federal

constitutions. 3 However, in a five-four decision, the Texas Court of Criminal

Appeals has held that failure of the trial court to comply with the mandates of

article 1.13 is a nonconstitutional statutory violation that requires a rule 44.2(b)

analysis.4 The Johnson majority held that “the lack of a written jury waiver is

not harmful when the record reflects that the defendant waived his right to a

jury trial.” 5

       In that case, the record did not reflect an oral warning of Johnson’s right

to a jury trial, an oral waiver, or consent of the trial court and prosecutors, nor

did the clerk’s record reflect a written waiver. The clerk’s record did contain

a judgment, however, that stated that Johnson had “waived trial by jury.” 6 The

Johnson majority stated, “That recitation is ‘binding in the absence of direct




       2
           … Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005).
       3
           … See U.S. Const. amend. VI; Tex. Const. art. I, § 15.
       4
           … Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002).
       5
           … Id. at 347.
       6
           … Id. at 349.

                                         3
proof of [its] falsity.’” 7 The Johnson majority reasoned,

      If Johnson “waived” a jury trial, then he must have known about
      his right to a jury trial, otherwise[,] he could not have waived it.
      The very use of the term “waive” presumes knowledge, because
      “to waive a right one must do it knowingly—with knowledge of the
      relevant facts.” 8

      The Johnson majority concluded that although “the judgment’s recitation

[was] refuted by the clerk’s certification that all of the proceedings relating the

case were included in the transcript,” and although there was no written jury

waiver in the record, a reviewing court would have to take the judgment’s

recitation as true unless the appellant proved it false.9 The Johnson majority

then addressed harm, holding that although article 1.13 was violated when the

trial court proceeded without Johnson’s written waiver, Johnson was not

harmed because the trial court's judgment indicated that he had waived a jury.10

It appears that the Johnson majority has moved from the requirement of an

affirmative waiver of a jury trial to the civil rule that a jury trial is waived unless

demanded by one of the parties.11



      7
          … Id. (citation omitted).
      8
          … Id. (citations omitted).
      9
          … Id.
      10
           … Id.
      11
           … See Tex. Const. art. V, § 10; Tex. R. Civ. P. 216(a).

                                          4
      Appellant appeared at trial and entered into a discussion with the trial

court concerning whether he would plead guilty or not guilty. He discussed his

election of punishment and the fact that he had originally elected to go to the

jury for punishment. After discussing the matter with the trial court, he elected

to plead guilty to evading arrest but not guilty to unauthorized use of a vehicle

and to ask the trial court to assess punishment in both cases. He and the trial

court discussed the credit that he would receive for time served, and Appellant

explained to the trial court that he had been trying to go to trial for two years

on a pending aggravated assault case and wanted to try the case on that day.

The trial court explained that he was only hearing state jail felonies that week

and that the State still was not ready to proceed on the aggravated assault

because their witnesses were unavailable.       The trial court explained that

Appellant had the right to plead guilty or not guilty to the outstanding

unauthorized use indictment and that the jury was in the hall, waiting.

(Appellant had already entered his plea of guilty to evading arrest.) The trial

court finally pressed Appellant to make up his mind whether he wanted to plead

not guilty or guilty,

           [TRIAL COURT:]        Make up your mind now.          Because
      this—I’ve got a jury out there ready to go. I mean, if you’re ready
      to—

             THE DEFENDANT: Okay. If I plead guilty to these now, then

                                       5
       . . . you’ll go ahead and sentence me on this, is what I’m (sic)
       saying?

Finally, Appellant decided to plead not guilty to unauthorized use of a vehicle.

At no time did he ask to withdraw his guilty plea on the evading arrest case,

even though by the time he entered his ultimate plea of not guilty to

unauthorized use of a vehicle, he was well aware that he had a right to a jury

trial both at guilt and at punishment.

       The judgment in the evading arrest case states that Appellant waived a

jury trial. Appellant affirmatively proved that he did not waive a jury trial—the

trial court clerk certified that all of the proceedings relating the case were

included in the record, and the State concedes that there is no written jury

waiver in the clerk’s record. Under Johnson, though, we must presume that

the statement in the judgment is correct in the absence of direct proof of its

falsity.12

       The Johnson majority does not address whether an oral waiver on the

record approved orally on the record by the trial court and agreed to orally on

the record by the State substantially complies with article 1.13. In a criminal

case, in most instances, except for the trial court’s granting of a defendant’s




       12
            … Johnson, 72 S.W.3d at 349.

                                         6
motion to suppress,13 oral recitation on the record satisfies the writing

requirement.14     To the extent that the record reflects that Appellant orally

waived a jury trial in the evading arrest case, the trial court clearly approved the

waiver, and the State clearly joined the waiver. To the extent that oral waivers

and approval appear in the reporter’s record, we hold that the trial court

substantially complied with article 1.13.

      Following Johnson, as we must, we conclude that Appellant knew that

he was entitled to a jury at the guilt phase of his trial on evading arrest because

he waived his right to have a jury assess his punishment and chose instead to

have the trial court assess his punishment and because he chose a jury to

determine his guilt of unauthorized use of a vehicle. Because Appellant knew

that he had the right to a jury trial and did not demand a jury trial on the issue

of guilt in the evading arrest case, any violation of article 1.13 is harmless. 15

We overrule Appellant’s first point.




      13
       … See State v. Cox, 235 S.W.3d 283, 285 (Tex. App.—Fort Worth
2007, no pet.) (en banc).
      14
       … See, e.g., Tex. R. Evid. 103; Tex. R. App. 33.1(a)(2); State v. Cullen,
195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (concerning findings of fact and
conclusions of law regarding suppression); Bryant v. State, 187 S.W.3d 397,
404 (Tex. Crim. App. 2005) (Johnson, J., concurring) (concerning stipulations).
      15
           … See Johnson, 72 S.W.3d at 349; see also Tex. R. App. P. 44.2(b).

                                         7
                               Double Jeopardy

      In his second point, Appellant argues that the trial court reversibly erred

and abused its discretion by finding him guilty of both unauthorized use of a

motor vehicle and evading arrest or detention in a vehicle.

      The record reflects that Joseph Holloway had stopped to refill the gas

tank of his car when a man came up, pushed him down, got in the car, and

drove off. Holloway waved down a police car and told the policeman what had

happened. The police broadcast the information about the car, and another

officer, who heard the broadcast, spotted the car. When the officer activated

his lights and siren, Appellant accelerated and tried to elude the police.

Appellant jumped out of the car and attempted to run from the officers on foot,

but they tackled him. About thirty minutes after Holloway reported his car

missing, it was returned to him.

      The record reflects that Appellant took the car without permission of the

owner, and when the police attempted to arrest him for taking the car, he used

the car to evade the police. Although Appellant argues that he could not have

been guilty under the facts of this case of evading arrest with a vehicle had he

not been using Holloway’s vehicle, that conclusion is not altogether true.

Appellant happened to be in Holloway’s vehicle when the police gave chase,

and the police chased him because he was in Holloway’s vehicle, but he would

                                       8
have been guilty of evading arrest no matter what vehicle he was driving.16

      Appellant relies on Patterson v. State to argue that when there is a single

continuous offense, the State cannot prosecute in “stop-action” format for each

prohibited act.17 Appellant argues that a single transaction occurred here and

that he could not properly be tried for the separate offenses committed during

that single transaction.

      Appellant’s argument is compelling. Would the State have been able to

prosecute him for burglary and evading arrest if he had been chased from the

building he was burglarizing? Probably not. But under the facts of this case,

if the taking of the vehicle had been prosecuted as theft of a vehicle, of which

unauthorized use of a vehicle is a lesser included offense,18 the theft would

have been completed when he drove the car away from the complainant.19 The

investigation would not have begun until after the theft’s completion. But

Appellant was not charged with theft; he was charged with unauthorized use




      16
           … See Tex. Penal Code Ann. § 38.04 (Vernon 2003).
      17
           … 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
      18
           … See Ex parte Cavazos,   203 S.W.3d 333, 337 (Tex. Crim. App.
2006).
      19
      … See Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2008) (“A person
commits an offense if he unlawfully appropriates property with intent to deprive
the owner of property.”).

                                       9
of a motor vehicle. Unauthorized use of a motor vehicle continues as long as

the person uses the vehicle without permission of the owner. 20 Consequently,

when he was evading arrest, Appellant was still using the vehicle without the

owner’s permission.

      The State argues that Appellant should have objected below and that his

failure to do so forfeited any error.   Because of the fundamental nature of

double jeopardy protections, however, a double jeopardy claim may be raised

for the first time on appeal or for the first time on collateral attack when the

double jeopardy violation is clearly apparent on the face of the record and when

the enforcement of the usual rules of procedural default serves no legitimate

state interests.21 A multiple-punishment double jeopardy violation is clearly

apparent on the face of the record when the record shows multiple

punishments resulting from the commission of a single act that violated two

separate penal statutes, one of which is subsumed in the other. 22

      The State also contends that the two offenses are not the same for

double jeopardy purposes.      Although the State does not argue that these


      20
           … See id. § 31.07(a) (Vernon 2003).
      21
           … Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).
      22
        … See Blockburger v. U.S., 284 U.S. 299, 304, 52 S. Ct. 180, 182
(1932); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991),
cert. denied, 502 U.S. 1110 (1992).

                                        10
offenses are in pari materia, it is nonetheless helpful to look at the reasoning

the Texas Court of Criminal Appeals has employed in determining whether two

offenses are the same for double jeopardy purposes. In Burke v. State,23 the

Texas Court of Criminal Appeals explained,

            Similarity of purpose or object is the most important factor in
      assessing whether two provisions are in pari materia. The two
      provisions must have been enacted with the same purpose in mind
      in order for the doctrine to apply. They must be “closely enough
      related to justify interpreting one in the light of the other.”

             In Alejos, the defendant was convicted of evading arrest
      under Penal Code § 38.04. On appeal, he claimed he should have
      been prosecuted under a more specific penal provision, article
      6701d § 186, “fleeing or attempting to elude a police officer.” We
      held the two provisions were not in pari materia because “the two
      acts involved are contained in different legislative acts, have
      different elements of proof, different penalties and [were] obviously
      designed to serve different purposes and objectives.” We noted
      that § 38.04 meshed well with other provisions of Chapter 38, all
      of which pertained to some type of arrest-related incident (resisting
      arrest, escape, facilitating escape, evading arrest). The primary
      focus of Article 6701d, Uniform Act Regulating Traffic on
      Highways, was the safety and orderly regulation of traffic on Texas
      highways. Contrasting the two provisions we noted that one of
      the most significant features of § 38.04 was that the State prove
      the officer was attempting to make a lawful arrest, while article
      6701d § 186 did not even contemplate an arrest or attempted
      arrest by the officer. We held the provisions were not in pari
      materia because “while the same subject is treated they are in
      different acts having different objects, intended to cover different
      situations and were not apparently intended to be considered
      together.” Because the provisions were not in pari materia, the



      23
           … 28 S.W.3d 545 (Tex. Crim. App. 2000).

                                       11
      State had discretion as to which offense to prosecute.24

      If, in the instant case, we look to the legislative intent to determine what

interests the legislature intended to protect, we note that unauthorized use of

a motor vehicle is a property offense.25 The Legislature intended to protect a

lawful owner’s possessory interests in property. 26 The interest protected in

criminalizing the use of a vehicle to evade arrest or detention is the safety of

the citizens in general on our streets and of the police who seek to apprehend

a suspect who they have probable cause to believe has committed an offense.

      The offense of evading arrest or detention is not temporally dependent on

the underlying offense; evading arrest may be committed hours, days, weeks,

or months after the commission of the underlying offense.27 It is only necessary

that the police officers make clear their intent to arrest or detain the defendant

and that he flees, using a vehicle.28 Thus, the State was not required to prove

that Appellant was the person who took the vehicle from Holloway to sustain




      24
           … Id. at 547 (citations omitted).
      25
         … See Tex. Penal Code Ann. § 31.07 (located in chapter 31, “Theft,”
of Title VII, “Offenses Against Property”).
      26
           … See id. § 31.07(a).
      27
           … See id. § 38.04.
      28
           … See id.

                                         12
a conviction for evading arrest or detention.     Article 18.16 of the code of

criminal procedure provides,

             Any person has a right to prevent the consequences of theft
      by seizing any personal property that has been stolen and bringing
      it, with the person suspected of committing the theft, if that person
      can be taken, before a magistrate for examination, or delivering the
      property and the person suspected of committing the theft to a
      peace officer for that purpose. To justify a seizure under this
      article, there must be reasonable ground to believe the property is
      stolen, and the seizure must be openly made and the proceedings
      had without delay.29

The arresting officer received the report that Holloway’s vehicle had been

stolen, and he saw the vehicle matching the description of Holloway’s car.

Under article 18.16, the arresting officer was authorized to seize the vehicle

and its driver, and Appellant was required to submit to the officer’s lawful

detention. Appellant did not.

      For all these reasons, adopting the analysis of Haight v. State,30 we

conclude that the legislature did not intend the offense of evading arrest or

detention using a vehicle to be subsumed in the offense of unauthorized use of

a motor vehicle.      Consequently, we hold that Appellant’s convictions for

unauthorized use of a motor vehicle and evading arrest or detention using a




      29
           … Tex. Code Crim. Proc. Ann. art. 18.16 (Vernon 2005).
      30
           … 137 S.W.3d 48, 51 (Tex. Crim. App. 2004).

                                       13
vehicle do not, under the facts of this case, violate double jeopardy protections.

We overrule this portion of his second point.




                                   Cumulation

      Appellant also argues in his second point that the trial court could not

cumulate his two sentences. Appellant and the State agree that Appellant pled

guilty to evading arrest and detention with a vehicle and not guilty to the

charge of unauthorized use of a motor vehicle. The trial court accepted the

guilty plea on the evading arrest charge, and a jury heard evidence on the

charge of unauthorized use of a motor vehicle.        At the conclusion of the

testimony, the jury found Appellant guilty of unauthorized use of a motor

vehicle. The jury was dismissed, and the trial court heard additional evidence

in the punishment phase of both cases.

      Section 3.03(a) of the penal code provides that when a defendant is

found guilty of more than one offense arising out of a single criminal episode

and prosecuted in a single criminal action, the sentences must run

concurrently.31    As the State candidly points out, a plea proceeding is not

complete until punishment has been assessed.32 Because the trial court held


      31
           … Tex. Penal Code Ann. § 3.03(a) (Vernon 2003).
      32
           … Robbins v. State, 914 S.W.2d 582, 583 (Tex. Crim. App. 1996).

                                       14
a consolidated punishment hearing, the trial court erred in cumulating the

sentences.33 We sustain this portion of Appellant’s second point and modify

each judgment to delete the cumulation order.

                                  Conclusion

      Having held that any violation of article 1.13 was harmless, that

Appellant’s convictions do not violate double jeopardy protections, and that the

trial court erred by cumulating Appellant’s sentences in these two offenses, we

modify the judgments to delete the cumulation orders and affirm the trial

court’s judgments as modified.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.

CAYCE, C.J. and MCCOY, J. concur without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 19, 2009




      33
           … See id. at 583–84.

                                      15
