                       PD-0705-15                                     PD-0705-15
                                                    COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                    Transmitted 6/12/2015 3:26:07 PM
                                                      Accepted 6/12/2015 3:55:18 PM
                                                                      ABEL ACOSTA
                         No. 07-13-00286-CR                                   CLERK

                TO THE COURT OF CRIMINAL APPEALS

                      OF THE STATE OF TEXAS


SAMMY VIDALES,                                            Appellant

v.

THE STATE OF TEXAS,                                        Appellee



                      Appeal from Lubbock County



                             * * * * *

           STATE’S PETITION FOR DISCRETIONARY REVIEW


                             * * * * *
June 12, 2015              LISA C. McMINN
                       State Prosecuting Attorney
                         Bar I.D. No. 13803300

                      STACEY M. GOLDSTEIN
                       Assistant State’s Attorney
                        Bar I.D. No. 24031632

                             P.O. Box 13046
                          Austin, Texas 78711
                       information@spa.texas.gov
                       512-463-1660 (Telephone)
                           512-463-5724 (Fax)
           IDENTITY OF PARTIES, JUDGE, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Sammy Vidales.

*   The trial Judge was Hon. John J. (Trey) McClendon, III.

*   Trial counsel for the State were Robert Clay Kimbrough and Robert Withers,
    Assistant District Attorneys, P.O. Box 10536, Lubbock, Texas 79408.

*   Counsel for the State before the Court of Appeals was Jeffrey S. Ford, Assistant
    District Attorney, P.O. Box 10536, Lubbock, Texas 79408.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial was Kelly Clark, 1601 Broadway, Lubbock,
    Texas, 79401.

*   Counsel for Appellant before the Court of Appeals was Frank Seller, Hurley,
    Guinn, & Sellers, 1805 13th Street, Lubbock, Texas 79401.




                                        i
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Does a TEX. PENAL CODE § 12.42(d) first-degree habitual punishment
enhancement charge that omits the sequential element render a jury’s first-
degree punishment assessment an “illegal sentence”?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-6

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX A (Briefing Order of the Court of Appeals)

APPENDIX B (Opinion of the Court of Appeals)




                                                         ii
                                   INDEX OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . 6 n.8

Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . 5 n.7

Fletcher v. State, 214 S.W.3d 5 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . 3-4 n.3

Jordan v. State, 256 S.W3d 286 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . 3 n.3, 5

Malick v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . . 4, 4 n.4

Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 6 n.8

Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . 4 n.3

Roberson v. State, 420 S.W.3d 832 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . 4

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . 3 n.2

Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex. App.—Amarillo Oct. 28,
2014) (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n.1

Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033
(Tex. App.—Amarillo 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 4

Statute

TEX. PENAL CODE § 12.42(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n.2




                                                     iii
                                No. 07-13-00286-CR

                   TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS



SAMMY VIDALES,                                                              Appellant

v.

THE STATE OF TEXAS,                                                            Appellee


                                     * * * * *

           STATE’S PETITION FOR DISCRETIONARY REVIEW

                                     * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State respectfully urges this Court to grant discretionary review.

              STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                          STATEMENT OF THE CASE

        A jury convicted Appellant of the third-degree felony offense of evading

arrest. The charge on punishment included two prior sequential felony convictions

under Texas Penal Code Section 12.42(d), which raised the potential punishment level

to a first-degree felony. The jury was not instructed, however, that it must find that

                                          1
the second prior offense occurred after the first prior was final. The jury found the

enhancements true and sentenced Appellant to sixty years’ imprisonment. The court

of appeals held that the sentence was illegal because the jury never made the essential

sequential factfinding necessary to elevate the punishment level above the second-

degree range.

                  STATEMENT OF PROCEDURAL HISTORY

       In a published decision, the court of appeals reversed Appellant’s sentence.

Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033

(Tex. App.—Amarillo 2015). The State did not file a motion for rehearing.

                             GROUND FOR REVIEW

Does a TEX. PENAL CODE § 12.42(d) first-degree habitual punishment
enhancement charge that omits the sequential element render a jury’s first-
degree punishment assessment an “illegal sentence”?

                                    ARGUMENT

       The court of appeals held that Appellant’s first-degree felony sentence of sixty

years was illegal1 because, although the State proved the prior convictions, the jury

   1
     The “legality of the sentence imposed” theory was first developed by the court
of appeals as unassigned error. Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex.
App.—Amarillo Oct. 28, 2014) (not designated for publication). Both parties
addressed the issue in their supplemental briefs as jury charge error, which included
analyses of egregious harm. Appellant’s Supplemental Brief, at 1-10; State’s
Supplemental Brief, at 1-5. Indeed, the State conceded that Appellant suffered harm.
State’s Supplemental Brief, at 4-5. The State’s concession is not binding on courts,
however. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).

                                           2
was not instructed that it had to find the priors were sequential (i.e., that the second

occurred after the first was final) as required by Section 12.42(d).2 Vidales, 2015 Tex.

App. LEXIS 5033, at *17-19. As a result, the court reversed Appellant’s punishment.

Id. at *19.

       The court of appeals erred to hold that Appellant’s sentence is illegal because

the jury was not required to, and therefore did not make, the sequential finding. In

doing so, it improperly commingled two firmly established, but separate, legal

bases—unlawful punishment and jury charge error. The distinction is important. An

illegal sentence is unauthorized by law, whereas the sentence here was unauthorized

by the charge yet, still, technically authorized by law.    So unlike illegal sentence

cases, the circumstance here does not involve a failure of proof or unauthorized

enhancement.3 Because its propriety is judged under the hypothetically correct jury

charge, the omitted sequencing instruction does not implicate the legality of the

   2
       Penal Code Section 12.42(d) states:
“if it is shown on the trial of a felony offense . . . that the defendant has previously
been finally convicted of two felony offenses, and the second previous felony
conviction is for an offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be punished by imprisonment
. . . for life, or for any term of not more than 99 years or less than 25 years.”
   3
      See, e.g., Jordan v. State, 256 S.W3d 286, 289 (Tex. Crim. App. 2008) (state
failed to present evidence to prove when a prior offense was committed); Fletcher v.
State, 214 S.W.3d 5, 9 (Tex. Crim. App. 2007) (state failed to prove finality of prior
conviction); Ex parte Rich, 194 S.W.3d 508, 510-12 (Tex. Crim. App. 2006)
(improper use of misdemeanor conviction for enhancement).

                                           3
sentence.         In Roberson v. State, this Court held that Malick v. State’s4 rule—that

evidentiary sufficiency for an offense is measured against the hypothetically correct

jury charge—applies to sufficiency of Section 12.42(d) punishment enhancements.

420 S.W.3d 832, 840-41 (Tex. Crim. App. 2013); see also Young v. State, 14 S.W.3d

748, 750 (Tex. Crim. App. 2000) (applicable to drug-free zone element). In this case,

the hypothetically correct charge would have instructed the jury that it was required

to find the priors sequential before it could assess a sentence within the first-degree

range.

           Applying the hypothetically correct charge, the record establishes that the State

satisfied its burden to prove the requisite sequence.5 Appellant was convicted of the

first prior felony (aggravated robbery) on March 25, 1996.6 State’s Exhibit 22.

Appellant was convicted of the second prior (burglary of a habitation) on June 19,

2008. State’s Exhibit 24. That offense was committed on February 28, 2008, 12

years, 2 months, and 25 days after the aggravated robbery was entered. State’s

Exhibit 24.



   4
       953 S.W.2d 234 (Tex. Crim. App. 1997).
       5
       The court of appeals seems to implicitly recognize this because it grants an
entirely new punishment hearing instead of a reassessment under the second-degree
felony range.
   6
           The jury charge mistakenly lists the judgment date as March 26th. 1 CR 81.

                                               4
       As noted above, charge error is considered without regard to the legality of a

sentence.   The court of appeals’ remedy creates several internal conflict that

demonstrate its lack of understanding of nuances of the applicable legal doctrines. On

the one hand, when remanding for a new punishment hearing, the court makes a point

of declining to consider whether the State can seek additional findings under Section

12.42(d) on remand—an open issue, according to the court. Vidales, 2015 Tex. App.

LEXIS 5033, at 19 n. 6. This line of thinking assumes that evidentiary sufficiency

was at issue,7 which is not harmless. Jordan, 256 S.W.3d at 292 (failure to prove

sequencing is never harmless). Yet, on the other hand, the court’s “illegal sentence”

determination rests solely on jury charge error. But, at the same time, its disposition

rebuts that legal theory. Had the court applied charge error jurisprudence, it would

have decided whether Appellant suffered egregious harm. Nonetheless, to the extent

that court of appeals’ legal basis for reversal can reasonably be construed as jury

charge error, Appellant was not egregiously harmed.8 The State proved the sequential

element beyond a reasonable doubt. Further, the State explained the sequencing



   7
      This Court has decided the issue. In Bell v. State, the court held that double
jeopardy does not bar the State on retrial from proving up a prior for purposes of
seeking a cumulated sentence. 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).
   8
     See Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim. App. 2006) (failure to
submit burden of proof for deadly weapon finding subject to a harm analysis under
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)).

                                          5
requirement in its closing argument, and Appellant did not challenge the validity of

the priors on that basis at trial. 6 RR 15, 19-20. If this Court construes the court’s

legal basis to be charge error, then the case should be remanded for a harm analysis.



      This Court cannot let this opinion stand because the court of appeals’ illegal

sentence disposition based on charge error is unprecedented. It represents a drastic

departure from, and conflicts with, this Court’s illegal sentence and charge error

jurisprudence. The State is aware of no other case holding that an erroneous

enhancement punishment charge renders a sentence illegal, and it is doubtful that this

Court would endorse such an outcome given its conflict with the relief attendant to

punishment charge error.




                                          6
                                     PRAYER

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and reverse the decision of the court of

appeals and reinstate Appellant’s sentence.



                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney
                                        Bar I.D. No. 24031632


                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                        512-463-1660 (Telephone)
                                        512-463-5724 (Fax)




                                         7
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 1,086 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                          8
                           CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on June 12, 2015, via certified electronic service provider to:


Hon. Jeffrey S. Ford
P.O. Box 10536
Lubbock, Texas 79408
JFord@co.lubbock.tx.us

Hon. Frank Seller
Hurley, Guinn, & Sellers
1805 13th Street
Lubbock, Texas 79401
frank@hurleyguinn.com


                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                          9
APPENDIX A
                   SAMMY VIDALES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

                                                 No. 07-13-00286-CR

                    COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

                                             2014 Tex. App. LEXIS 12255


                                              October 28, 2014, Decided

NOTICE: PLEASE CONSULT THE TEXAS RULES                              1 TEX. PENAL CODE ANN. § 38.04(a) (West Supp.
OF APPELLATE PROCEDURE FOR CITATION OF                              2014). Effective September 1, 2011, the offense
UNPUBLISHED OPINIONS.                                               of evading arrest with a vehicle is a third degree
                                                                    felony. See Act of May 27, 2011, 82nd Leg.,
SUBSEQUENT HISTORY: Decision reached on                             R.S., ch. 920, § 3, 2011 Tex. Gen. Laws 2321,
appeal by, Remanded by, in part Vidales v. State, 2015              2322.
Tex. App. LEXIS 5033 (Tex. App. Amarillo, May 15,
                                                                   In our review of the record in this case, we have
2015)
                                                             discovered a previously unassigned, [*2] potentially
                                                             meritorious issue concerning the legality of the sentence
PRIOR HISTORY:          [*1] On Appeal from the 137th
                                                             imposed. Specifically, the Charge of the Court on
District Court, Lubbock County, Texas. Trial Court No.
                                                             Punishment describes two prior felony convictions, each
2012-436,579; Honorable John J. McClendon III,
                                                             of which became "final prior to the commission of the
Presiding.
                                                             offense of which you have just found [Appellant] guilty,"
                                                             i.e., the offense of evading arrest; however, it does not
JUDGES: Before QUINN, C.J., and CAMPBELL and
                                                             submit to the jury the question as to whether "the second
PIRTLE, JJ.
                                                             previous felony conviction is for an offense that occurred
                                                             subsequent to the first previous conviction having
OPINION
                                                             become final." See TEX. PENAL CODE ANN. § 12.42(d)
                                                             (West Supp. 2014). Accordingly, a question exists as to
ORDER TO REBRIEF ISSUES
                                                             the appropriate range of punishment: (1) two to twenty
     Appellant, Sammy Vidales, was convicted by a jury       years pursuant to § 12.42(a) or (2) twenty-five to ninety-
of evading arrest or detention with a vehicle,1 enhanced     nine years pursuant to § 12.42(d).
by two prior felony convictions, and sentenced to sixty-
                                                                  In the interest of justice, and out of an abundance of
two years confinement. By three issues, Appellant
                                                             fairness to all parties, this Court hereby assigns this issue
contends (1) his initial detention was not lawful because
                                                             as potential error and directs both parties to file
there were no specific and articulable facts supporting
                                                             additional briefing. Appellant is granted thirty days from
reasonable suspicion to detain him, (2) his trial counsel
                                                             the date of this order to file a supplemental brief and the
was ineffective and (3) error in the jury charge failed to
                                                             State is granted thirty days from the date Appellant's
instruct the jury on unanimity of the verdict regarding
                                                             supplemental brief is filed to file a reply brief.
what he perceived to be two separate evading arrest
offenses allegedly committed on the same date. The State         Per Curiam
responded to Appellant's briefing and the case was
submitted to this Court on the briefs.                           Do not publish.
APPENDIX B
                   SAMMY VIDALES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

                                                   No. 07-13-00286-CR

                     COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

                                               2015 Tex. App. LEXIS 5033


                                                 May 15, 2015, Decided

NOTICE:      PUBLISH.                                                 1 TEX. PENAL CODE ANN. § 38.04(a) (West Supp.
                                                                      2014). Although formerly a state jail felony,
PRIOR HISTORY:           [*1] On Appeal from the 137th                effective September 1, 2011, evading arrest
District Court, Lubbock County, Texas. Trial Court No.                through the use of a motor vehicle is a third
2012436579; Honorable John J. McClendon III,                          degree felony.
Presiding.                                                            2 Vidales v. State, No. 07-13-00286-CR, 2014
Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex. App.               Tex. App. LEXIS 12255 (Tex. App.--Amarillo Oct.
Amarillo, Oct. 28, 2014)                                              28, 2014, no pet.).
                                                                      3 See TEX. PENAL CODE ANN. § 12.42(d) (West
                                                                      Supp. 2014) (providing that a third degree felony
JUDGES: Before QUINN, C.J., and CAMPBELL and                          is punishable by imprisonment for life, or any
PIRTLE, JJ.                                                           term of not more than 99 years or less than 25
                                                                      years if it is shown that the defendant has
OPINION BY: Patrick A. Pirtle                                         previously been convicted of two felony offenses,
                                                                      and the second previous felony conviction is for
OPINION                                                               an offense that occurred subsequent to the first
                                                                      previous felony having become final).
     Appellant, Sammy Vidales, was convicted by a jury
of evading arrest or detention with a vehicle, an offense           The State responded to Appellant's first issue with a
alleged to have been committed on the 7th day of               lengthy discussion concerning reasonable suspicion to
October, 2012.1 Finding two enhancement paragraphs to          lawfully detain Appellant and then concluded "it would
be true, the jury sentenced him to sixty-two years             appear that the attempted lawful detention element of
confinement. By three issues raised through his original       evading arrest or detention was not met here." Without
briefing, Appellant contends (1) his initial detention was     stating what the proper disposition should be when the
not lawful because there were no specific and articulable      State fails to prove an essential element of the offense
facts supporting reasonable suspicion to detain him, (2)       [*3] charged, the State requests this Court to "review
his trial counsel was ineffective, and (3) error in the jury   [the issue] under the proper standard of review, and
charge failed to instruct the jury on unanimity of the         render an appropriate judgment and decision." The State
verdict regarding what he perceived to be two separate         then responds to issues two and three with a conclusion
evading arrest offenses on the same date. After original       they should be overruled. Finally, by its supplemental
submission on the briefs, the parties were ordered to brief    brief, the State responds to the fourth issue by conceding
a previously unassigned, potentially meritorious issue         Appellant was egregiously harmed by the omission of an
concerning the legality of the sentence imposed.2 By a         essential instruction in the punishment charge. As to this
supplemental brief, Appellant added a fourth issue             error, the State contends we should reverse the sentence
contending he was egregiously harmed when the trial            and remand the case for a new trial on punishment. We
court authorized [*2] the jury to assess a sentence within     affirm in part and reverse and remand in part.
the statutory punishment range provided by section
12.42(d) of the Texas Penal Code without requiring the         BACKGROUND
jury to first find an element essential to the enhanced
                                                                    Shortly after midnight on October 7, 2012, Officer
punishment range, to-wit: the sequential finality of his
                                                               Justin Anderson of the Lubbock Police Department was
prior convictions.3
                                                               dispatched to an apartment complex on a domestic
                                                               disturbance call. The caller described the suspect as a
black male. When Officer Anderson and his partner              We disagree.
arrived at the complex, they exited their vehicle and
proceeded to the apartment of the reporting party. The         STANDARD OF REVIEW
suspect had already left.
                                                                    In assessing the sufficiency of the evidence to
    While walking back to his patrol car, Officer              support a criminal [*6] conviction, this Court considers
Anderson observed an SUV driving in the parking lot            all the evidence in the light most favorable to the verdict
without the headlights turned on. He ran toward the SUV        and determines whether, based on that evidence and
and shined his flashlight inside and yelled [*4] for the       reasonable inferences to be drawn therefrom, a rational
driver to stop. The driver, a Hispanic male later identified   trier of fact could have found the essential elements of
as Appellant, complied. Officer Anderson admitted that,        the crime beyond a reasonable doubt. See Jackson v.
even though he realized the driver was not the suspect         Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
they were looking for, he asked Appellant for the keys to      (1979). See also Brooks v. State, 323 S.W.3d 893, 912
his SUV. Appellant inquired "why" and the officer              (Tex. Crim. App. 2010).
responded "because I asked you to." Instead of
                                                                    We measure the legal sufficiency of the evidence by
complying, Appellant drove away and exited the
                                                               the elements of the offense as defined by a hypothetically
complex. The officers were not near their patrol car and
                                                               correct jury charge. Malik v. State, 953 S.W.2d 234, 240
did not pursue Appellant. At that time, Officer Anderson
                                                               (Tex. Crim. App. 1997). In our review, we must evaluate
did not report to dispatch that there was an "evading
                                                               all of the evidence in the record, both direct and
detention" in progress.
                                                               circumstantial, whether admissible or inadmissible.
     Approximately five hours later, while Officer             Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.
Anderson was patrolling his area of the city, he observed      1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146
what he believed to be the same SUV previously                 L. Ed. 2d 958 (2000). Furthermore, we must give
encountered at the apartment complex. At that time, he         deference to the responsibility of the trier of fact to fairly
activated his emergency lights and the SUV pulled over         resolve conflicts in the testimony, to weigh the evidence
into a motel parking lot. Appellant was the driver of that     and to draw reasonable inferences from basic facts to
vehicle. This time Appellant exited his SUV and walked         ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.
toward Officer Anderson. For safety reasons, Officer           Crim. App. 2007).
Anderson drew his weapon and ordered Appellant to his
knees in order to handcuff him.4 Appellant complied. As        ANALYSIS
Officer Anderson was attempting to secure the handcuffs,
                                                                    A person commits the offense of evading arrest or
they got caught in Appellant's jacket [*5] and he began
                                                               detention with a vehicle if he (1) intentionally (2) flees
moving around as if attempting to get away. Officer
                                                               (3) from a person he knows is a peace officer (4)
Anderson discarded the handcuffs, subdued Appellant
                                                               attempting lawfully to arrest or detain him, and (5) he
with his body weight and called for backup.
                                                               uses a vehicle while in flight. TEX. PENAL CODE ANN. §§
                                                               38.04(a), 38.04(b)(2)(A). As to the issue of a lawful
       4 Officer Anderson testified that Appellant did
                                                               arrest or detention, the Fourth Amendment to the United
       not have any weapons on his person.
                                                               States Constitution protects citizens from unreasonable
     Appellant managed to push Officer Anderson off and        searches and seizures [*7] at the hands of government
proceeded to his SUV. Officer Anderson then attempted          officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
to deploy his taser, but not all of the probes made contact    App. 2007). When a person pulls over in response to a
with Appellant and he was not completely disabled. After       patrol car's emergency lights rather than of his own
Appellant entered his SUV, some of the taser leads broke       accord, an investigatory detention has occurred. Crain v.
off. Appellant then reversed his SUV, crashing it into         State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). For
Officer Anderson's patrol car before exiting the motel         police officers to be able to conduct an investigative
parking lot. Backup officers pursued Appellant, and after      detention which is lawful under the Fourth Amendment,
he wrecked his SUV, he was eventually apprehended              they must have reasonable suspicion founded on specific,
while on foot.                                                 articulable facts. Delafuente v. State, 414 S.W.3d 173,
                                                               177 (Tex. Crim. App. 2013). Reasonable suspicion
ISSUE ONE--LEGALITY OF DETENTION                               requires more than just a hunch; it exists only when an
                                                               officer has specific, articulable facts that, taken together
     The lawfulness of a detention is an essential element
                                                               with reasonable inferences from those facts, would lead
of evading arrest or detention which is reviewed for legal
                                                               the officer to reasonably conclude the person detained is,
sufficiency. See York v. State, 342 S.W.3d 528, 544 (Tex.
                                                               has been, or soon will be, engaging in criminal activity.
Crim. App. 2011); Woods v. State, 153 S.W.3d 413, 415
                                                               Crain, 315 S.W.3d at 52; Ford v. State, 158 S.W.3d 488,
(Tex. Crim. App. 2005). See also Rodriguez v. State, 578
                                                               492 (Tex. 2005). This is an objective standard that
S.W.2d 419, 420 (Tex. Crim. App. 1979) (finding
                                                               disregards any subjective intent of the officer making the
evidence insufficient to find a lawful arrest where officer
                                                               stop and looks solely to whether an objective basis for
lacked reasonable suspicion to detain suspect). Here,
                                                               the stop exists. Id. A reasonable suspicion determination
Appellant alleges the State did not satisfy that element.
is an objective one made by considering the totality of the
circumstances. Id. at 492-93.                                  ISSUE TWO--INEFFECTIVE ASSISTANCE OF COUNSEL
     By his first issue, Appellant contends the evidence is         By his second issue, Appellant contends he was
insufficient to support Officer Anderson's initial detention   denied effective assistance of counsel at the guilt-
at the apartment complex, as a lawful detention.               innocence phase of his trial because his counsel failed (1)
Appellant argues Officer Anderson did not have specific,       to request an explanatory jury instruction concerning
articulable facts [*8] to support a reasonable suspicion to    reasonable suspicion to stop, (2) file a pretrial motion to
detain him because, at the time of that encounter, he          quash the indictment, (3) compel the State to elect the
knew Appellant was not a black male, the subject of his        prosecution event, and (4) make appropriate objections to
pending investigation. The State has conceded that,            the evidence. To support those claims, Appellant filed a
during the encounter at the apartment complex Officer          motion for new trial wherein he attached an affidavit
Anderson did not have reasonable suspicion to believe          from his trial counsel stating that it was his theory that
that a crime had been committed or was in progress. In         the events in question constituted one continuous evading
that respect, we agree with both Appellant and the State       arrest. Because Appellant's second and third complaints
that the attempted initial detention was not supported by      raise an issue with respect to counsel's theory of the case,
adequate reasonable suspicion to warrant a lawful              we will address those complaints together, before
detention. That said, Appellant does not challenge the         addressing the first and fourth complaints.
lawfulness of Officer Anderson's subsequent detention at
the motel parking lot. Because the failure to sufficiently     STANDARD OF REVIEW
advance the analysis of an argument can result in the
                                                                    The adequacy of defense counsel's assistance is
waiver of that issue, Cardenas v. State, 30 S.W.3d 384,
                                                               based on the totality of the representation rather than
393 (Tex. Crim. App. 2000), we find Appellant has
                                                               isolated acts or omissions. Thompson v. State, 9 S.W.3d
waived that issue.
                                                               808, 814 (Tex. Crim. App. 1999). Although the
     Notwithstanding the waiver of this issue, it is clear     constitutional right to counsel ensures [*11] the right to
from a review of the entire record that at the time of the     reasonably effective counsel, it does not guarantee
encounter at the motel parking lot, Officer Anderson was       errorless counsel whose competency or accuracy of
operating in good faith, under the objective (albeit           representation is judged by hindsight. Robertson v. State,
incorrect) assumption that Appellant had earlier               187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
committed the offense of evading detention. Because a
                                                                    The effectiveness of counsel's representation is
police officer's reasonable mistake about past facts may
                                                               measured by the two-pronged test enunciated in
justify [*9] his conclusion that there is reasonable
                                                               Strickland v. Washington. 466 U.S. 668, 687 104 S. Ct.
suspicion for purposes of an investigatory detention,
                                                               2052, 80 L. Ed.2d 674 (1984). See Hernandez v. State,
Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App.
                                                               726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting
2012), we conclude Officer Anderson's subsequent
                                                               Strickland standard in Texas). The first prong of the
attempted detention at the motel parking lot was
                                                               Strickland test requires an appellant prove counsel made
supported by reasonable suspicion.
                                                               such serious errors that he did not function as the
     Furthermore, even if reasonable suspicion did not         "counsel" guaranteed by the Sixth Amendment.
exist at the commencement of the detention at the motel        Strickland, 466 U.S. at 687. Appellant must show that
parking lot, during that second encounter, Appellant           counsel's performance was unreasonable under prevailing
engaged in conduct that not only merited an investigatory      professional norms and that the challenged action was
detention, it justified a warrantless arrest. While            not part of counsel's sound trial strategy. Id. at 689-90. If
Appellant initially complied with Officer Anderson's           deficient assistance is established, the second Strickland
requests, at some point he ceased to be cooperative and        prong requires an appellant affirmatively demonstrate
attempted to flee. Despite Officer Anderson's attempt to       prejudice; that is, a reasonable probability that, but for
physically subdue him through the use of non-deadly            counsel's unprofessional errors, the outcome of the case
force, he continued to be combative. At some point,            would have been different. Thompson, 9 S.W.3d at 812.
Appellant reentered his SUV, crashed it into Officer           "Reasonable probability" means probability of a degree
Anderson's patrol vehicle, and sped off. Resisting an          sufficient to undermine confidence in the outcome.
arrest or detention is unlawful, even if the officer           Strickland, 466 U.S. at 694.
attempting to effect the arrest lacks reasonable suspicion
                                                                    Our review of counsel's performance is highly
or probable cause. TEX. PENAL CODE ANN. § 38.03(b)
                                                               deferential and a strong presumption exists that counsel's
(West 2011); State v. Mayorga, 901 S.W.2d 943, 945
                                                               conduct fell within a wide range of reasonable
(Tex. Crim. App. 1995). Giving deference to the
                                                               professional assistance. Mallett v. State, 65 S.W.3d 59, 63
responsibility of the jury to weigh this evidence, we find
                                                               (Tex. Crim. App. 2001). See Strickland, 466 U.S. at 689
the evidence was legally sufficient, as to the subsequent
                                                               (noting [*12] there are countless ways to provide
attempted detention, to establish [*10] Appellant's guilt
                                                               effective assistance in any given case). To overcome the
as to the offense of evading arrest or detention with a
                                                               presumption of reasonable professional assistance, any
vehicle. Accordingly, Appellant's first issue is overruled.
                                                               allegation of ineffectiveness must be firmly rooted in the
record. Thompson, 9 S.W.3d at 813-14. The showing of           155 L. Ed. 2d 714 (2003) (stating that when a claim of
ineffectiveness must warrant the conclusion of a               ineffective assistance of counsel is raised on direct
reviewing court that counsel's performance fell below an       appeal, a trial record is usually not developed for
objective standard of reasonableness as a matter of law        purposes of establishing such a claim). Accordingly,
and that no reasonable trial strategy could justify            Appellant's second issue is overruled.
counsel's acts or omissions, regardless of his subjective
reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex.           ISSUE THREE--CHARGE ERROR REGARDING UNANIMITY
Crim. App. 2011).                                              OF THE VERDICT

     In the majority of cases, the record on direct appeal          By his third issue, Appellant contends he was
is simply inadequate to show that counsel's conduct fell       prejudiced by the trial court's failure to instruct the jury
below an objectively reasonable standard of performance.       that their verdict required unanimous agreement as to the
See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.         prosecution event. Appellant contends the court's charge
App. 2003) (stating "[w]e have previously stated that the      authorized a guilty verdict if half of the jury thought he
record on direct appeal will generally not be sufficient to    was guilty of evading detention at the apartment
show that counsel's representation was so deficient as to      complex, while the other half [*15] thought he was
meet the first part of the Strickland standard as the          guilty of evading detention at the motel parking lot. The
reasonableness of counsel's choices often involves facts       State contends unanimity is not a question because there
that do not appear in the appellate record."). "When such      was only one evading detention or arrest offense
direct evidence is not available, we will assume that          presented at trial. While we disagree with the State's
counsel had a strategy if any reasonably sound strategic       position, we nonetheless find the question does not
motivation can be imagined." Lopez, 343 S.W.3d 137, 143        present reversible error.
(Tex. Crim. App. 2011).
                                                                    Where the offense in question is a single offense
      Here, based on the allegations contained [*13] in the    with multiple or alternate methods of commission,
indictment, there were three possible prosecution events:      unanimity is required with respect to all essential
(1) the encounter at the apartment complex, (2) the            elements of the offense, even though jurors are not
encounter at the motel, or (3) the encounter at the motel      required to unanimously agree on the specific method of
as a continuation of the offense commenced at the              committing that offense. Miranda v. State, 391 S.W.3d
apartment complex. When conduct alleged in a charging          302, 310 (Tex. Crim. App. 2012). A jury is entitled to
instrument can be construed as implicating more than one       return a general verdict where evidence of an alternative
offense, a motion to quash is an appropriate means of          manner and means of committing the charged offense is
forcing the State to be more specific as to the offense        submitted to the jury. Young v. State, 341 S.W.3d 417,
charged. See State v. Draper, 940 S.W.2d 824, 826 (Tex.        422 (Tex. Crim. App. 2011). Here, the indictment merely
App.--Austin 1997, no pet.) (holding that a trial court's      averred that Appellant "on or before the 7th day of
decision to quash an indictment for lack of certainty in       October, A.D. 2012, did then and there, while using a
indictment's allegations is a matter within the discretion     vehicle, intentionally flee from [Officer Anderson], a
of the trial court). Furthermore, upon a proper request, a     person [Appellant] knew was a peace officer who was
trial court is obligated to require the State to elect which   attempting lawfully to arrest or detain the defendant."
of multiple instances of an offense the State was relying      Even though the jury could have concluded Appellant
upon for conviction. Phillips v. State, 193 S.W.3d 904,        committed that offense in more than one manner, the
909-10 (Tex. Crim. App. 2006). Given the facts of this         gravamen of the offense has always been an [*16]
case, we cannot say that trial counsel did not have a          evading detention offense alleged to have been
legitimate trial strategy in adopting a position that the      committed on October 7, 2012. Appellant's third issue is
events in question constituted a single continuous             overruled.
offense. Accordingly, Appellant has not established the
first prong of the Strickland test as to these complaints.     ISSUE FOUR--ILLEGAL SENTENCE
     Furthermore, as to the [*14]        complaints that           By the fourth issue contained in his Supplemental
Appellant's counsel failed to request an explanatory jury      Brief, Appellant contends his sentence is an illegal
instruction concerning reasonable suspicion or make            sentence because it exceeds the maximum sentence for a
appropriate objections to the evidence, we find that the       second degree felony. We agree.
record is insufficiently developed to establish deficient
                                                                    With admirable candor, the State concedes (1) the
performance in that regard. Where the alleged deficiency
                                                               trial court's punishment charge erroneously fails to
is an error of omission rather than commission, a
                                                               require the jury to find sequential finality of the prior
collateral attack by means of a post-conviction writ of
                                                               felony conviction as required by section 12.42(d) of the
habeas corpus is generally the more appropriate vehicle
                                                               Texas Penal Code and Jordan v. State, 256 S.W.3d 286,
by which to develop a detailed record of the alleged
                                                               290-91 (Tex. Crim. App. 2008), and (2) Appellant
defective assistance. See Freeman v. State, 125 S.W.3d
                                                               suffered egregious harm from the lack of a jury
505, 506-07 (Tex. Crim. App. 2003). See generally
                                                               instruction requiring the jury to find the second previous
Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690,
                                                               felony conviction was for an offense that occurred
subsequent to the first previous felony conviction having         12.42(d). Id.
become final. As to this error, the State admits we should
                                                                       Based upon the findings of the jury, the lawful range
reverse the sentence and remand the case for a new trial
                                                                  of punishment for the offense for which Appellant was
on punishment.
                                                                  convicted was that of a second degree felony, i.e., by
     With certain exceptions not applicable to the facts of       imprisonment for any term of not more than twenty years
this case, if it is shown on the trial of a felony of the third   or less than two years and by a fine not to exceed
degree that the defendant has previously been finally             $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2011).
convicted of a felony other than a state jail felony, on          Because the term of confinement assessed exceeds the
conviction the defendant shall be punished for a felony of        maximum term allowable by law, the punishment
the second degree. [*17] 5 TEX. PENAL CODE ANN. §                 assessed is illegal. Ex parte Parrott, 396 S.W.3d 531, 534
12.42(a) (West Supp. 2014). Furthermore, again with               (Tex. Crim. App. 2013); Farias v. State, 426 S.W.3d 198,
certain exceptions not applicable here, if it is shown on         200 (Tex. App.--Houston [1st Dist.] 2013, pet. ref'd)
the trial of a felony of the third degree that the defendant      (holding that a sentence outside the statutory range of
has previously been finally convicted of two felonies, and        punishment for an offense is void and must be reversed,
the second previous felony conviction was for an offense          citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim.
that occurred subsequent to the first previous felony             App. 1994)). Accordingly, Appellant's fourth issue is
conviction having become final, on conviction the                 sustained.
defendant shall be punished by imprisonment for life, or
for any term of not more than 99 years or less than 25            CONCLUSION
years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp.
                                                                       That portion of the verdict and judgment pertaining
2014).
                                                                  to Appellant's conviction is affirmed, while that portion
                                                                  of the verdict and judgment pertaining to Appellant's
        5    While an offense may be "punished" as a
                                                                  [*19] punishment is reversed and this cause is remanded
        higher degree of felony, for purposes of the
                                                                  to the trial court for a new punishment trial pursuant to
        judgment, the offense remains the same "level of
                                                                  article 44.29(b) of the Texas Code of Criminal
        offense" provided by the particular statute under
                                                                  Procedure. In remanding this cause for a new
        which the conviction was obtained. Ford v. State,
                                                                  punishment hearing, we express no opinion as to
        334 S.W.3d 230, 235 (Tex. Crim. App. 2011)
                                                                  appropriate range of punishment on retrial.6
        (holding that while the punishment level may
        have been increased, the "level of offense" was
                                                                         6 Based upon the jury findings from the first
        not increased).
                                                                         trial, the appropriate range of punishment would
     In this case, the indictment alleged three prior felony             be that of a second degree felony. The question of
convictions. The State waived the second enhancement                     whether the State can seek additional findings on
and proceeded to trial on the basis of two prior                         retrial regarding the applicability of section
convictions: (1) the offense of aggravated robbery in                    12.42(d) of the Texas Penal Code was not an
cause number 94-419,354 and (2) the offense of burglary                  issue before us and we expressly decline the
of a habitation in cause number 2008-419,494. [*18]                      opportunity to offer an opinion on that question
While the State did prove up these prior felony                          without adequate briefing.
convictions, the jury was never instructed that it had to
                                                                      Patrick A. Pirtle
find the second previous felony conviction was for an
offense that occurred subsequent to the first previous                Justice
felony conviction having become final. Consequently, the
jury never made an essential fact finding necessary to                Publish.
elevate the range of punishment to confinement for a
minimum term of 25 years in accordance with section
