                                                                              PD-1020-15
                          PD-1020-15                        COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 8/7/2015 11:15:01 AM
                                                              Accepted 8/11/2015 1:42:52 PM
                                                                              ABEL ACOSTA
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS                                   CLERK
                        AUSTIN, TEXAS

RAFAEL REYES,
   APPELLANT

                                NO.                                    _
                                (COURT OF APPEALS NO. 11-13-00206-
                                CR; TRIAL COURT NO. 010822)
STATE OF TEXAS,
      APPELLEE
                  **************************************
                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                      ELEVENTH JUDICIAL DISTRICT
                            EASTLAND, TEXAS
                  **************************************
                CHIEF JUSTICE JIM R. WRIGHT, PRESIDING
       *********************************************************
       APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
       *********************************************************
                                      STAN BROWN
                                      P.O. BOX 3122
                                      ABILENE, TEXAS 79604
                                      325-677 -1851
                                      FAX 325-677-3107
                                      STATE BAR NO. 03145000
                                      EMAIL: mstrb@aol.com


                                      ATTORNEY FOR APPELLANT



      August 11, 2015
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS


RAFAEL REYES,
   APPELLANT

                                 NO.                              __
                                 (COURT OF APPEALS NO. 11-13-00206-
                                 CR; TRIAL COURT NO. 010822)
STATE OF TEXAS,
      APPELLEE

              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

    Hon. Brooks Hagler           Stan Brown
    2591h District Court         Appellant's Attorney/ Appeal
    Jones County Courthouse      P.O. Box 3122
    Abilene, TX 79501            Abilene, TX 79604

    Chad Cowan                   Jacob Blizzard
    County Attorney              Appellant's Attorney/Trial
    Jones County Courthouse      702-C Hickory
    Anson, TX 79501              Abilene, TX 79601

    Ms. Lisa McMinn              Rafael Reyes, Appellant
    State Prosecuting Attorney   153 NE Ave. A
    P.O. Box 13046               Hamlin, TX 79520
    Austin, TX 78711




                                       11
                        TABLE OF CONTENTS

SUBJECT
-   -                                                            PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL                                ,ii

STATEMENT REGARDING ORAL ARGUMENT                                       v

STATEMENT OF THE CASE                                                   1

STATEMENT OF PROCEDURAL HISTORY                                         2

QUESTION PRESENTED FOR REVIEW

        Did the Court of Appeals fail to address our argument that two
competing statutes created an ambiguity requiring a resort to the rule of
lenity?            (C.R.      at      49)(IV      R.R.        at      12-
18)(Appendix)                                                          3

ARGUMENT                                                                3

PRAYER FOR RELIEF                                                       8

CERTIACATE OF SERVICE                                                   8

CERTIFICATE OF COMPLIANCE                                               9




                                   iii
                          INDEX OF AUTHORITIES

CASES                                                           PAGE

Burrage v. United States, 134 S .Ct. 881, 891 (2014)                .3-4

Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221
(2000)                                                                5

Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002)                5

Kasten v. Saint-Gobain Performance Plastics Corporation, 131 S.Ct. 1325
(2011)                                                               6

Moskal v. United States, 498 U.S. 103, 111 S.Ct. 461, 112 L.Ed.2d 449
(1990)                                                              4

Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619
(2010)                                                               6-7

Yates v. United States, 135 S.Ct. 1074 (2015)                       4-5


STATUTES, RULES, & LITERARY REFERENCES                           PAGE

TEX. PEN. CODE ANN. §12.35(a)                                         7

TEX. PEN. CODE ANN. §38.04                                            7

TEX. GOV'T CODE ANN. §311.031(b)                                      7

Tex. R. App. P. 9.4                                                   9

Tex. R. App. P. 66.3(c)                                               3

Shakespeare, The Merchant of Venice                                   7




                                     IV
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant believes the QUESTION PRESENTED; whether the rule of lenity

should apply to the conflicting amendments regarding two different punishment

ranges for evading arrest in a vehicle is an issue that merits further clarification for

the Bench and Bar. Therefore, the usual give and take of oral argument would be

useful for the Court in determining the scope of the rule of lenity. Oral argument

is essential in order to aid this Court's decisional processes by providing a more

in-depth exploration of that issue.




                                             v
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                         AUSTIN, TEXAS
RAFAEL REYES,
   APPELLANT

                                    NO.                                       __
                                    (COURT OF APPEALS NO. 11-13-00206-
                                    CR; TRIAL COURT NO. 010822)
STATE OF TEXAS,
      APPELLEE
                   **************************************
                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                      ELEVENTH JUDICIAL DISTRICT
                          EASTLAND, TEXAS
                   **************************************
                          STATEMENT OF THE CASE

           The indictment alleged Appellant evaded arrest by Randy Guerra, a

    person he knew was a peace officer who was attempting to lawfully arrest or

    detain him, with a vehicle.   (C.R. at 10). On June 24, 2013, the jury trial

    began upon a plea of Not Guilty.       (IV R.R. at 152).    The jury found

    Appellant guilty, assessed his punishment at three years TDCJ-ID, and the

    trial court sentenced him accordingly on June 26, 2013. (C.R. at 49).

    AppeJlant's motion for new trial was filed July 15,2013, and was overruled

    by operation of law September 9, 2013. (C.R. at 52). Notice of Appeal was

    timely filed September    16, 2013. (C.R. at 69).       The Trial Court's

    Certification of Right to Appeal was timely filed. (C.R. at 64). Appellant

    seeks review of the decision of the Court of Appeals that affirmed the

    conviction.
                STATEMENT OF PROCEDURAL HISTORY

        Appellant presented four issues in his brief, and the Eastland Court of

Appeals affirmed, Reyes v. State,              S.W.3d             2015     WL

3799301 (Tex. App.-Eastland June 18, 2015). Appellant filed a motion for

rehearing June 30, 2015, which was denied without written opinion July 17,

2015.    This petition is due to be filed by August 17,2015; it is therefore

timely filed.




                                       2
                       QUESTION PRESENTED FOR REVIEW

       Did the Court of Appeals fail to address our argument that two
competing statutes created an ambiguity requiring a resort to the rule of
lenity? (C.R. at 49)(lV R.R. at 12-18)(Appendix).

                                         ARGUMENT


        We must respectfully             submit       the court    below     failed    to properly

consider     our argument        the existence        of two competing       statutes,    with two

very different     punishment        ranges for evading           in a vehicle,       by their very

existence at the same time, amounted to the sort of ambiguity                         that calls for

application    of the rule of lenity.       Instead, the court below concluded,               "The

rule   of lenity       ensures    fair   warning       of what      activities     are criminally

punishable     by resolving       ambiguity       in a criminal      statute to apply only to

conduct      clearly    covered ... This      rule     only   applies      where      a statute   IS


ambiguous ... we conclude          that Section 38.04 is not ambiguous."                 (Citations

omitted).     Slip Op at 8.         By that statement,        the court below decided             an

important question of state and federal law that conflicts with the following

applicable    decisions     of this Court and the Supreme                Court of the United

States. Tex. R. App. P. 66.3(c).

       See generally, Burrage v. United States, 134 S.Ct. 881,891 (2014):

            We decline     to adopt the Government's         permissive
       interpretation of § 841(b)(1). The language Congress enacted
       requires death to "result from" use of the unlawfully distributed
       drug, not from a combination of factors to which drug use
       merely contributed. Congress could have written § 841(b)(1)(C)
       to impose a mandatory minimum when the underlying crime
       "contributes to" death or serious bodily injury, or adopted a
       modified causation test tailored to cases involving concurrent


                                                  3
        causes, as five States have done, see Ala.Code § 13A-2-5(a)
        (2005); Ark.Code Ann. § 5-2-205 (2006); Me.Rev.Stat. Ann.,
        Tit. 17-A, § 33 (2006); N.D. Cent. Code Ann. § 12.1--02--05
        (Lexis 2012); Tex. Penal Code Ann. § 6.04 (West 2011). It
        chose instead to use language that imports but-for causality.
        Especially in the interpretation of a criminal statute subject to
        the rule of lenity, see Moskal v. United States, 498 U.S. 103,
        107-108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990),1 we cannot
        give the text a meaning that is different from its ordinary,
        accepted meaning, and that disfavors the defendant.

        And as recent as earlier this year, the Supreme Court of the United

States has again made plain an ambiguous situation mandates resort to the

rule of lenity. See, Yates v. United States, 135 S.Ct. 1074,1081-1082 (2015):

"Whether a statutory term is unambiguous, however, does not tum solely on

dictionary definitions of its component words. Rather, '[t]he plainness or

ambiguity of statutory language is determined [not only] by reference to the

language itself, [but as well by] the specific context in which that language is

used, and the broader context of the statute as a whole.' Robinson v. Shell

Oil Co., 519 U.S. 337, 341,117           S.Ct. 843, 136 L.Ed.2d 808 (1997).            See

also Deal v. United States, 508 U.S. 129,132,113              S.Ct. 1993, 124 L.Ed.2d

44 (1993) (it is a 'fundamental principle of statutory construction                  (and,

indeed, of language itself) that the meaning of a word cannot be determined

in isolation, but must be drawn from the context in which it is used').

Ordinarily, a word's usage accords with its dictionary definition. In law as in




J Moskal    v. United States, 498 U.S. 103, 108, III S.Ct. 461,465, 112 L.Ed.2d 449
(1990), "we have always reserved lenity for those situations in which a reasonable doubt
persists about a statute's intended scope even after resort to "the language and structure,
legislative history, and motivating policies" of the statute."


                                            4
    life, however, the same words, placed in different contexts, sometimes mean

    different things."! (Emphasis supplied).

          Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) is a classic

    example of this Court's respect for the rule of lenity. The appellant had been

on felony probation for possession of heroin. After he successfully served

the entire five-year period of probation to which he had been sentenced, the

trial court entered an order discharging him from probation which included

the following language:        "the judgment of conviction .. .is hereby set aside

and the indictment .. .is hereby dismissed."           Some fifteen years later, the

appellant was charged and convicted of the offense of unlawful possession

of a firearm by a felon, based solely on the conviction that had been set

aside.     The Fourth Court of Appeals reversed, and on review, this Court

affirmed the Fourth Court's reversal.           "I join the majority opinion. I write

this concurrence only to provide an additional reason that a person whose

felony conviction has been set aside and the indictment against him

dismissed is not prohibited from possessing a hunting rifle. In this situation,

the Rule of Lenity requires this Court to adopt the less harsh interpretation

of penal statutes." [d. at 821 (Cochran, J., concurring).

2  See also, Cleveland v. United States, 531 U.S. 12,25,121 S.Ct. 365,148 L.Ed.2d 221
(2000): "Moreover, to the extent that the word 'property' is ambiguous as placed in §
 1341, we have instructed that 'ambiguity concerning the ambit of criminal statutes should
be resolved in favor of lenity.' Rewis v. United States, 401 U.S. 808,812,91 S.Ct. 1056,
28 L.Ed.2d 493 (1971). This interpretive guide is especially appropriate in construing §
1341 because, as this case demonstrates, mail fraud is a predicate offense under RICO, 18
U.S.c. § 1961(1) (1994 ed., Supp. IV), and the money laundering statute, §
1956(c)(7)(A). In deciding what is 'property' under § 1341, we think 'it is appropriate,
before we choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.' United States v. Universal C.l.T. Credit Corp., 344
U.S. 218,222,73 S.Ct. 227,97 L.Ed. 260 (1952)."


                                            5
          See also, Kasten v. Saint-Gobain Performance Plastics Corporation,

    131 S.Ct. 1325 (2011):

                 Finally, we note that Saint-Gobain invokes the "rule of
         lenity" in support of its "written complaint" interpretation. That
         rule applies primarily to the interpretation of criminal statutes.
         It leads us to favor a more lenient interpretation of a criminal
         statute "when, after consulting traditional canons of statutory
         construction, we are left with an ambiguous statute." ... We
         agree with Saint-Gobain          that those who violate the
         antiretaliation provision before us are subject to criminal
         sanction, 29 U.S.C. § 216(a). And we have said that the rule of
         lenity can apply when a statute with criminal sanctions is
         applied in a noncriminal context. .. But after engaging in
         traditional methods of statutory interpretation, we cannot find
         that the statute remains sufficiently ambiguous to warrant
         application of the rule of lenity here. Id. at 1336. (Citations
         omitted).

         Furthermore,    Justice Ginsburg makes it clear beyond dispute in

Skilling v. United States, 561 U.S. 358,130            S.Ct. 2896,177       L.Ed.2d 619

(2010) the rule of lenity should apply here?            The conflicting amendments

regarding punishment for evading arrest with a vehicle are a classic scenario

for lenity in this case.


3  "Further dispelling doubt on this point is the familiar principle that 'ambiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity.'
Cleveland, 531 U.S., at 25,121 S.Ct. 365 (quoting Rewis v. United States, 401 U.S. 808,
812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971». 'This interpretive guide is especially
appropriate in construing [§ 1346.1 because ... mail [and wire] fraud [are] predicate
offense] s] under [the Racketeer Influenced and Corrupt Organizations Act], 18 U.S .C. §
1961(1) (1994 ed., Supp. [V), and the money laundering statute, § 1956(c)(7)(A).'
Cleveland, 531 U.S., at 25, 121 S.Ct. 365. Holding that honest-services fraud does not
encompass conduct more wide-ranging than the paradigmatic cases of bribes and
kickbacks, we resist the Government's less constrained construction absent Congress'
clear instruction otherwise. E.g., United States v. Universal C.l.T. Credit Corp., 344 U.S.
218,221-222,73     S.Ct. 227,97 L.Ed. 260 (1952).

In sum, our construction of § 1346 'establishles] a uniform national standard, define]s]
honest services with clarity, reachles 1 only seriously culpable conduct, and
accomplishles] Congress's goal of 'overruling' McNally.' Brief for Albert W. Alschuler
as Amicus Curiae in Weyhrauch v. United States, O.T.2009, No. 08-1196, pp. 28-29. 'If


                                            6
        Against that constitutional       backdrop, it is seen there is clearly a

conflict between the amendments to TEX. PEN. CODE ANN. §38.04, by

Senate Bill 1416 and House Bill 3423, regarding punishment for evading

arrest in a vehicle that were set out in the APPENDIX of Appellant's Brief.

While the latter continues evading in a vehicle as a State Jail Felony, the

former increases the punishment for that particular mode of evading to Third

Degree Felony.       Plainly, TEX. GOV'T CODE ANN. §311.031(b) and the

rule of lenity require the application of the House Bill 3423 amendment that

continues evading in a vehicle as a State Jail Felony to apply to Appellant."

Review should be granted in order that this Court may provide the Bench

and Bar with additional guidance concerning the rule of lenity, and

following that review, this cause should be remanded to the trial court for a

new punishment hearing and sentencing in accordance with TEX. PEN.

CODE ANN. §12.35(a) for a State Jail Felony.




Congress desires to go further," we reiterate, "it must speak more clearly than it has.'
McNally, 483 U.S., at 360,107 S.Ct. 2875." Id. at 130 S.Ct. 2932-2933.
4 "The quality of mercy is not strained; It droppeth as the gentle rain from heaven Upon

the place beneath. It is twice blessed=Ir blesseth him that gives, and him that takes: Tis
mightiest in the mightiest: it becomes The throned monarch better than his crown; His
scepter shows the force of temporal power, The attribute to awe and majesty, Wherein
doth sit the dread and fear of kings, It is an attribute to God himself; And earthly power
doth then show likest God's When mercy seasons justice." Shakespeare, The Merchant of
Venice, Act IV, i.


                                            7
                         PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court grant discretionary review and oral argument and, after

full briefing on the merits, issue an opinion reversing and remanding this

cause for a new punishment proceeding that shall consider State Jail Felony

punishment.

                                         Respectfully submitted,
                                      lsI Stan Brown
                                      STAN BROWN
                                      P.O. BOX 3122
                                      ABILENE, TEXAS 79604
                                      325-677-1851
                                      FAX 325-677-3107
                                      STATE BAR NO. 03145000
                                      EMAIL: mstrb@aol.com
                                      ATTORNEY FOR APPELLANT

                     CERTIFICATE OF SERVICE

       I hereby certify that on this    6th   day of August, 2015, a true
and correct copy of the above and foregoing Petition for Discretionary
Review was emailed to Mr. Joe Edd Boaz, District Attorney, P.O. Box 507,
Anson, TX 79501 at Iaura.davis@co.jones.tx.us; and to Ms. Lisa McMinn,
State Prosecuting Attorney, at inforrnation@spa.texas.gov.

                                      lSI Stan Brown
                                      STAN BROWN




                                     8
                   CERTIFICATE OF COMPLIANCE

      I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is     1687 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
                                       lSI Stan Brown
                                       STAN BROWN




                                     9
APPENDIX
Opinion filed June 18,2015




                                       In The


        eltbtutb ~ourt of ~ptalS
                                No. 11-13-00206-CR


                        RAFAEL REYES, Appellant
                                         v.
                    THE STATE OF TEXAS,Appellee


                    On Appeal from the 259th District Court
                                 Jones County, Texas
                             Trial Court Cause No. 010822


                                    OPINION
      The jury found Rafael Reyes guilty of the offense of evading arrest or
detention while using a vehicle. The jury assessed punishment at confinement for
three years and a $3,000 fine. The trial court sentenced Appellant accordingly.
Appellant presents four issues on appeal. We affirm.
                                I. The Charged Offense
       The grand jury indicted Appellant for the offense of evading arrest or
detention while using a vehicle.     A person commits the offense of evading arrest or
detention if he intentionally flees from a person he knows is a peace officer
attempting to lawfully arrest or detain him. TEX.PENALCODEANN. § 38.04(a) (West
Supp. 2014).       This offense becomes         a third-degree   felony, punishable     by
imprisonment for any term between two and ten years and a fine not to exceed
$10,000, if the person uses a vehicle while in flight. [d. § 12.34 (West 2011),
§ 38.04(b)(2)(A) (West Supp. 2014).
                                   II. Evidence at Trial
       Randy Guerra, an officer with the Hamlin Police Department, testified he
received a call from dispatch about a stolen vehicle.       Officer Guerra went to 153
Northeast   Avenue     A and met with           Dora   Franco,   Appellant's   girlfriend.
Officer Guerra said that Franco complained that Appellant had taken her car without
her consent.   Officer Guerra testified he had previously determined the car was
registered in Franco's name. Officer Guerra left the residence in his patrol vehicle,
a Tahoe, in pursuit of Franco's car and Appellant.
       Officer Guerra, facing north at the comer of Northeast Third and Avenue E,
saw Appellant in Franco's car, which was headed west "driving really slow."
Appellant passed in front of Officer Guerra, and Officer Guerra "got right behind
[Appellant] and ... activated [his] emergency red and blue lights." Officer Guerra
testified that Appellant "automatically ... started gaining speed" and that, when he
saw Appellant speed up, Officer Guerra turned on his siren.
      Officer Guerra followed Appellant, who drove faster than the speed limit, and
saw Appellant run a stop sign, tum left, and fishtail around a comer. Appellant drove
one block, turned right, fishtailed again, drove less than a full block, and pulled under
the carport at 153 Northeast Avenue A. When Appellant stopped, he exited the car,

                                            2
faced Officer Guerra, put his hands in the air, and walked to the back of the car,
where he turned to face the car and put his hands behind his back; Officer Guerra
told Appellant to "get on the ground" repeatedly during this episode.
       Officer Guerra said that the pursuit lasted for four to five blocks, which would
take "pretty close" to a minute to drive if driving the speed limit. Officer Guerra
testified that it was a sunny, bright, clear, cool morning; that little traffic was on the
road; and that there was nothing that would impede Appellant's ability to see Officer
Guerra's patrol vehicle driving behind Appellant with the siren and flashing lights
activated. Officer Guerra also testified it is possible for someone to not see or hear
him immediately when he turns on his flashing lights or siren.
       Wayne Marshal, a resident of Hamlin, testified he saw Officer Guerra follow
Appellant in a black Tahoe with red and blue flashing lights on but no siren. Marshal
testified that Officer Guerra drove "maybe about half a car length" behind Appellant,
that Appellant did not "act like he was in any hurry to go," and that Appellant did
not "flick up dirt or fishtail" around any comers.       Marshal witnessed this from a
trailer house about a block away from Appellant's house. Marshal had hidden in the
trailer because he had broken his parole for a sexual assault and "dope case."
Marshal testified he did not see either vehicle before they drove in front of the trailer
where he hid. Kenneth Link, a resident of Hamlin, testified that Officer Guerra drove
a "black police suburban" and that Officer Guerra "is not truthful at all."
                                 III. Issues Presented
      Appellant raises four issues on appeal.         First, Appellant challenges the
sufficiency of the evidence to support his conviction. Second, Appellant asserts that
the trial court abused its discretion when it failed to hold a hearing on Appellant's
motion for new trial. Third, Appellant argues his sentence was unauthorized by law
because Section 38.04 of the Penal Code violates the Texas Constitution.         Fourth,
Appellant asserts his sentence was unauthorized by law and the doctrine of lenity.

                                           3
                                IV. Standard of Review
       We apply the sufficiency standard outlined in Jackson and its progeny for
Appellant's sufficiency issue.     Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214
S.W.3d 9,13 (Tex. Crim. App. 2007). We review all of the evidence introduced by
both the State and Appellant in the light most favorable to the jury's verdict and
decide whether any rational jury could have found each element of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319.
       The trier of fact may believe all, some, or none of a witness's testimony
because the factfinder is the sole judge of the weight and credibility of the witnesses.
Sharp v. State, 707 S.W.2d 611,614 (Tex. Crim. App. 1986); Isham v. State, 258
S.W.3d 244, 248 (Tex. App.-Eastland        2008, pet. refd).   We defer to the trier of
fact's resolution of any conflicting inferences that the evidence raises and presume
that the trier of fact resolved such conflicts in favor of the prosecution. Jackson, 443
U.S. at 319; Brooks, 323 S.W.3d at 899; Fuentes v. State, 991 S.W.2d 267,271 (Tex.
Crim. App. 1999) (citing Turro v. State, 867 S.W.2d 43,47 (Tex. Crim. App. 1993)).
      We review a trial court's denial of a hearing on a motion for new trial for an
abuse of discretion; we only reverse if the decision to deny a hearing was so clearly
wrong as to lie outside the zone of reasonable disagreement.        Smith v. State, 286
S.W.3d 333, 339 (Tex. Crim. App. 2009). The purposes of a hearing on a motion
for new trial are (1) to determine whether the case should be retried and (2) to prepare
a record for presenting issues on appeal if the trial court denies the motion. Id. at
338. A hearing on a motion for new trial is not an absolute right. Id. A hearing is
not required when the matters raised in the motion for new trial are subject to being
determined from the record.     Id. However, a trial court abuses its discretion by
failing to hold a hearing if the motion and accompanying affidavits (1) raise matters
that are not determinable from the record and (2) establish reasonable grounds

                                           4
showing the defendant could potentially be entitled to relief. Hobbs v. State, 298
S.W.3d 193, 199 (Tex. Crim. App. 2009).
                                     V. Analysis
       A. Issue One: Sufficiency
       Appellant complains the evidence was insufficient to support his conviction
because Officer Guerra's pursuit lasted less than a minute, because inconsistencies
existed in the testimony, and because Officer Guerra testified it was possible for
someone to not see his flashing lights or hear his siren. Appellant cites to Griego
and Redwine to illustrate that the evidence is insufficient. See Griego v. State, 345
S.W.3d 742, 754 (Tex. App.-Amarillo           2011, no pet.); Redwine v. State, 305
S.W.3d 360, 368 (Tex. App.-Houston       [14th Dist.] 2010, pet. refd).   Both Griego
and Redwine are distinguishable.
      In Griego, the court held the evidence was insufficient because the testimony
did not indicate that the appellant saw or should have been able to see the officers
turn around to pursue him, the officers did not approach closer than a couple of car
lengths behind the appellant, and the officers were not directly visible to the
appellant for the entire length of the pursuit, such that the appellant would not have
known the officers were trying to arrest or detain him. Griego, 345 S.W.3d at 751-
54. Inferring the appellant's mental state from his actions during and after the
incident, the court noted, "[e]vidence that [the] appellant got out of his car and,
instead of running or hiding, began walking toward the residence while carrying a
beer also indicates that he did not know officers were attempting to arrest or detain
him." Id. at 753. Similarly, in Redwine, the court held the evidence was insufficient
because overwhelming     evidence showed that the officer did not turn on the
emergency lights until after the appellant had exited his vehicle, so the appellant
could not have known the officer was attempting to arrest or detain him while he
drove. Redwine, 305 S.W.3d at 364-68.

                                          5
         Here, Officer Guerra pursued Appellant based on Franco's complaint. Officer
Guerra followed close behind Appellant for almost five blocks with his flashing
lights and siren activated. Appellant accelerated when Officer Guerra turned on his
flashing lights, and Appellant subsequently ran a stop sign. Officer Guerra testified
that nothing impeded Appellant's ability to see him following Appellant, and no
evidence existed in the record that Appellant did not see or hear Officer Guerra
following him. Additionally, upon exiting the vehicle, Appellant put his hands up
and subsequently turned around to be handcuffed.         Appellant's actions and the
surrounding circumstances sufficiently proved that Appellant intentionally fled in a
vehicle from Officer Guerra, who he knew was attempting to lawfully arrest or
detain him. See Jackson, 443 U.S. at 319; Griego, 345 S.W.3d at 753-54.             We
overrule Appellant's first issue.
         B.Issue Two: Motion/or New Trial
         Appellant asserts that new GPS information from Officer Guerra's patrol
vehicle entitled him to a hearing on his motion for new trial. Appellant would be
entitled to a new trial if the new evidence was not merely cumulative or impeaching.
See Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. App. 1985). Officer Guerra
testified as to his location when he first saw Appellant in Franco's car and as to when
and where he followed Appellant.      Marshal testified he saw Officer Guerra close
behind Appellant, notably along the same path to which Officer Guerra testified,
about a block before Appellant parked the car.          Officer Guerra's location is
determinable    from the record, and the GPS information could not establish
reasonable grounds for potential relief because it was merely cumulative             or
impeaching. See Hobbs, 298 S.W.3d at 199; Boyett, 692 S.W.2d at 516. The trial
court did not abuse its discretion when it declined to hold a hearing on Appellant's
motion for new trial. See Smith, 286 S.W.3d at 339. We overrule Appellant's second
Issue.

                                          6
        C. Issues Three and Four: Punishment
        Appellant complains of his punishment in his third and fourth issues. In his
third issue, Appellant argues that Section 38.04 of the Penal Code was amended in
violation of the "single-subject" requirement of the Texas Constitution and that,
therefore, his sentence was unauthorized by law.        In his fourth issue, Appellant
asserts that the rule of lenity and conflicting amendments to Section 38.04 require
that his offense be punished as a state jail felony instead of a third-degree felony.
              1. "Single-Subject" Requirement
        Appellant argues that 2011 Texas Senate Bill 1416, which amended
Section 38.04, is unconstitutional because it fails to conform to the "single-subject"
requirement of Section 35 of Article III of the Texas Constitution.         TEX. CONST.
art. III, § 35. Appellant contends that evading arrest or detention in a vehicle remains
a state jail felony and that his punishment under Senate Bill 1416's amendment
to Section 38.04 of the Penal Code was unauthorized.              The Court of Criminal
Appeals recently ruled on this issue and held that Senate Bill 1416 does not violate
the "single-subject" requirement of the Texas Constitution. See Ex parte Jones, 440
S.W.3d 628,637 (Tex. Crim. App. 2014); see also Wise v. State, No. 11-13-00005-
CR, 2014 WL 2810097, at *3-4 (Tex. App.-Eastland            June 19, 2014, pet. ref'd)
(mem. op., not designated for publication) (relying on Jones).              We overrule
Appellant's third issue.
              2. Conflicting Amendments and Rule of Lenity
        Appellant argues that a clear conflict exists between the 2011 amendments to
Section 38.04 of the Texas Penal Code, as set forth in Texas Senate Bill 1416 and
Texas    House    Bill   3423.    Based    on this    conflict,     Appellant   contends
that Section 311.031 (b) of the Texas Government Code requires the application of
House Bill 3423 in this case. See TEX.GOV'TCODEANN. § 311.031(b) (West 2013).


                                           7
         As we have recently explained in a similar case, Appellant's           reliance
on      Section   311. 031 (b)   IS   misplaced,   and    the   applicable    provision
is Section 311.025(b) of the Government Code because no recent amendment
to Section 38.04 of the Texas Penal Code reduced the punishment for the offense of
evading arrest. See id. §§ 311.031(b), 311.025(b); PENAL§ 38.04; Wise, 2014 WL
2810097, at *4-5 (harmonizing Senate Bill 1416 with House Bill 3423 and Senate
Bill 496 under Government Code Section 311.025(b) and holding that the defendant
was properly sentenced for a third-degree felony offense). Appellant was properly
sentenced under Senate Bill 1416's amendment to Section 38.04 of the Texas Penal
Code.
         Criminal statutes within the Penal Code do not require strict construction.
PENAL§ l.05(a) (West 2011); State v. Rhine, 297 S.W.3d 301, 309 (Tex. Crim. App.
2009).    The rule of lenity ensures fair warning of what activities are criminally
punishable by resolving ambiguity in a criminal statute to apply only to conduct
clearly covered. United States v. Lanier, 520 U.S. 259,266 (1997). This rule only
applies where a statute is ambiguous. Cuellar v. State, 70 S.W.3d 815,819 n.6 (Tex.
Crim. App. 2002). Relying on the holding of the Court of Criminal Appeals in Jones
and our analysis in Wise, we conclude that Section 38.04 is not ambiguous.          See
Jones, 440 S.W.3d at 637; Wise, 2014 WL 2810097, at *4-5. Therefore, the trial
court did not err when it sentenced Appellant within the range for a third-degree
felony. See Jones, 440 S.W.3d at 637. We note that the Court of Criminal Appeals
held in Jones that a violation identical to Appellant's is properly punished as a third-
degree felony. See Jones, 440 S.W.3d at 629-30 (holding offense of evading arrest
with a motor vehicle for first-time offenders is punishable as a third-degree felony).
We overrule Appellant's fourth issue.




                                            8
                                   VI. Conclusion
       After a review of the record in the light most favorable to the verdict, we hold
the evidence was sufficient to support Appellant's conviction.      See Jackson, 443
U.S. at 319. We also hold that the trial court did not abuse its discretion when it did
not hold a hearing on Appellant's motion for new trial. See Hobbs, 298 S.W.3d at
199; Smith, 286 S.W.3d at 339.      We further hold that Appellant's sentence was
authorized by law and that the trial court did not err when it sentenced Appellant for
a third-degree felony in accordance with Section 38.04 of the Penal Code. See Jones,
440 S.W.3d at 637.
                              VII. This Court's Ruling
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


June 18,2015
Publish. See TEX.R. ApP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                          9
                                11TH   COURT OF APPEALS
                                   EASTLAND, TEXAS
                                        JUDGMENT


Rafael Reyes,                                   * From the 259th District
                                                   Court of Jones County,
                                                   Trial Court No. 010822.

Vs. No. 11-13-00206-CR                          * June   18,2015

The State of Texas,                             * Opinion   by Willson, J.
                                                   (Panel consists of: Wright, C.J.,
                                                   Willson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that there
is no error in the judgment below.      Therefore, in accordance with this court's
opinion, the judgment of the trial court is in all things affirmed.
