                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-250-CR


ROBBIE SANDERS                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      A jury convicted Appellant Robbie Sanders of evading arrest or detention

using a vehicle, and the trial court sentenced him to eight years’ confinement.

In a single point, Sanders argues that the trial court abused its discretion by

sentencing him to eight years’ confinement. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
      On March 22, 2005, officers with the Fort Worth Police Department

observed Sanders bring his vehicle to a stop in front of a house known for

selling drugs.   A male exited the house, approached the passenger side of

Sanders’s vehicle, and conducted activity with Sanders’s passenger consistent

with what the officers considered to be a drug transaction. Officers blocked

the street with their vehicles in an attempt to stop Sanders’s vehicle. They

wore black ID vests with lettering that spelled the words “POLICE” and

“SWAT.” The officers motioned at Sanders to stop as he approached, but

Sanders fled, swerving out of the street and driving up over the curb and

through a vacant lot.

      Officers pursued Sanders and requested assistance. A marked patrol car

with its overhead lights and siren activated eventually joined the pursuit, which

proceeded at a high rate of speed along a highway, the highway’s access road,

and through neighborhoods.         Sanders’s vehicle seemed to experience

mechanical difficulties and eventually came to a stop. Officers arrested Sanders

and the passenger.

      Sanders pleaded guilty to the charged offense and true to the

enhancement notice.2 The Community Supervision and Corrections Department


      2
      … A jury convicted Sanders of the charged offense because the State did
not waive a jury trial.

                                       2
prepared a Pre-sentence Investigation Report, and the trial court sentenced

Sanders to eight years’ confinement after hearing evidence at sentencing.

      In his sole point, Sanders argues that the trial court abused its discretion

by sentencing him to eight years’ confinement. He seems to concede that a

trial court does not abuse its discretion when the sentence falls within the

statutory range of punishment, but he argues that the trial court nonetheless

abused   its   discretion   here   because   the   sentence    is   “based   on   a

misunderstanding as to the number of felony convictions in [his] past.”

Sanders’s argument relies on a comment made by the trial judge just before

imposing sentence. During closing argument, the prosecutor mentioned that

Sanders had ten prior felonies. The trial court questioned the prosecutor, “Can

you help me with where you come up with ten convictions?” Based on the pre-

sentence investigation report, the prosecutor then outlined what he considered

to be ten prior felonies.

      In light of the trial court’s question, Sanders argues that the trial court’s

“apparent confusion and unfamiliarity lends some credence to [his] position that

the trial court was not fair in assessing his sentence.” His argument is based

on Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984).

      In Jackson, the trial judge who assessed punishment did not have access

to the transcript of the testimony at the guilt-innocence phase of trial, no

                                        3
evidence was elicited at the punishment hearing, and the trial court sentenced

appellant based solely on a pre-sentence investigation report. Id. at 811, 814.

“The sentencing judge . . . was left with nothing to base his determination as

to punishment on except the naked fact that appellant had been found guilty

of the offense of sexual abuse of a child.” Id. at 814. “[U]nder the limited

facts of th[e] case,” the court of criminal appeals held that the trial court

abused its discretion by determining the appellant’s sentence in the absence of

any facts or evidence available to the court and upon which the court could

have relied in assessing punishment. Id.

      The facts and circumstances underlying the Jackson decision are not

present in this case. At sentencing, the State elicited testimony from two

police officers involved in the pursuit of Sanders’s vehicle, and it asked the trial

court to take judicial notice of “all prior proceedings in this cause,” which the

trial court did. Thus, unlike in Jackson, the trial court considered facts and

evidence in addition to the pre-sentence investigation report. Moreover, the

trial court’s inquiry into the number of prior felonies that Sanders had

accumulated does not demonstrate unfamiliarity and confusion with the facts

of the case; rather, as the State suggests, the record demonstrates that the trial

court was simply attempting to confirm the accuracy of the prosecutor’s

statement that Sanders had ten prior felonies.

                                         4
      Sanders’s eight year sentence falls within the statutory range of

punishment. See Tex. Penal Code Ann. § 12.33 (Vernon 2003) (providing that

an individual adjudged guilty of a felony of the second degree shall be punished

by imprisonment for any term of not more than twenty years or less than two

years); Lewis v. State, No. 14-01-00735-CR, 2002 WL 1591673, at *6 (Tex.

App.—Houston [14th Dist.] July 18, 2002, pet. ref’d) (not designated for

publication) (discussing enhancement of state jail felony with two prior felony

convictions).

      We hold that the trial court did not abuse its discretion by sentencing

Sanders to eight years’ confinement, we overrule Sanders’s sole point, and we

affirm the trial court’s judgment.




                                                 PER CURIAM

PANEL: HOLMAN, WALKER, and MCCOY, JJ.

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

DELIVERED: October 16, 2008




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