
NO.    07-06-0469-CR
					         07-06-0470-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 13, 2007
______________________________

WALTER EARL HARRELL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

NO. 4252, 4983; HONORABLE KELLY G. MOORE, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION

	Appellant, Walter Earl Harrell, seeks to appeal orders recouping court appointed
attorney fees and court costs from appellant's inmate trust fund account.  We find that the
orders being appealed are non-appealable orders and dismiss for want of jurisdiction.
	On August 19, 1997, appellant was convicted and placed on community supervision
for possession with intent to deliver a controlled substance, cocaine.   On February 22,
2000, appellant's community supervision was revoked and appellant was sentenced to 10
years confinement in the Institutional Division of the Texas Department of Criminal Justice
and ordered to pay $200 in attorney fees.  
	On July 9, 2003, appellant pled guilty to the offense of possession of a controlled
substance, cocaine.  Appellant was sentenced to 18 years confinement in the Institutional
Division of the Texas Department of Criminal Justice and ordered to pay $248 in court
costs and $300 in attorney fees.  
	On October 27, 2006, the trial court signed two withdrawal orders notifying the
Department that appellant had been assessed court costs and attorney fees totaling $200
in the first cause and $548 dollars in the second cause.  The two withdrawal orders to the
Texas Department of Criminal Justice ordered the Department to withdraw money from the
trust account of appellant in accordance with section 501.014 of the Texas Government
Code.
	On November 18, 2006, appellant filed notice of appeal in each case complaining
of the October 27th withdrawal order.  On November 27, appellant filed, in the trial court,
a Motion to Rescind Order requesting the trial court to rescind its withdrawal order.  On
February 20, 2007, appellant requested a preparation of the clerk's record requesting
documents of the original proceedings including the plea agreements, judgments of guilt,
and trial docket sheets, as well as the reporter's record of the plea and sentencing
proceedings.  Appellant also requested all pleadings, documents, and transcription of any
hearing relevant to the court's withdrawal orders.  The trial court  denied the Motion to
Rescind and the request for preparation of the record.  Since appellant was not appealing
the judgment or sentence, the trial court held that appellant was not entitled to a free
record of those proceedings.  The trial court further stated that no hearing was held on the
withdrawal orders and, therefore, no reporter's record exists regarding the withdrawal
order.
	We have found no authority giving us jurisdiction to review a withdrawal order issued
under section 501.014(e) of the Texas Government Code.  See Gross v. State, No. 07-06-0489-CR, 2007 WL 2089365, at *2 (Tex.App.-Amarillo July 23, 2007, no pet. h.). (1)

  	Therefore, we conclude that we must dismiss the appeal for want of jurisdiction. 
 
							Mackey K. Hancock
                                           Justice

Do not publish.   
1.  On April 9, appellant filed a motion for records in this cause requesting that the
clerk's record be provided to him.  On April 30, appellant filed his brief with this court.  On
July 9, he filed another motion for the clerk's records seeking that we order the trial court
to produce the clerk's records.  Appellant also filed a motion for appellee's brief; however,
the State did not file a brief in this matter.  Having found that this court does not have
jurisdiction, we do not have the power to act on appellant's motions before this court.  See
Olivo v. State, 918 S.W.2d 519, 523  (Tex.Crim.App. 1996).   


stimony of Gilbert was sufficient
to satisfy the State's burden, points one and two are overruled. 
	By his third and fourth points of error, appellant contends the trial court erred in failing
to quash the indictment and by overruling his objection to the charge regarding the range of
punishment.  He argues that he was incorrectly charged with a third degree felony instead
of a state jail felony.  We disagree.
	Under section 38.04(b)(2)(A) of the Texas Penal Code, effective September 1, 2001,
evading arrest or detention is a third degree felony if a vehicle is used and the defendant has
previously been convicted under this statute. Because appellant was convicted for evading
arrest on March 9, 2000, on September 1, 2001, he had a prior conviction for evading arrest.
	Section 38.04(b)(2)(A) does not provide that the offense is a felony only if the prior
offense was committed after September 1, 2001.  Further, as written, a prior offense is not
an element of the offense of intentionally fleeing from arrest.  Appellant's argument is similar
to the defendant's argument in State v. Mason, 980 S.W.2d 635, 640 (Tex.Cr.App. 1998). 
There, in rejecting Mason's argument and in discussing section 46.04, the Court concluded
that only Mason's "status as a felon" was an element of section 46.04, not the date upon
which the prior conviction occurred.   A plain reading of the statute shows that the elements
of the offense are set out in subsection (a) but the grade of the offense is prescribed by
subsection (b).  As in Mason, we hold that appellant's status as a felon was not an element
of the offense.  Points three and four are overruled.
	By his fifth point of error, appellant contends the trial court erred in denying his request
for an instruction in the charge on the defense of necessity.  We disagree.  Citing section
9.22 of the Texas Penal Code, appellant argues he was entitled to an instruction on the
defense of necessity.  Because he did not testify, there was no evidence that he had a
reasonable belief he needed to try to avoid the pursuit by Gilbert.  See § 9.22(1).  Moreover,
because appellant did not admit the offense, the defense was not raised.  See Young  v.
State, 991 S.W.2d 835, 838 (Tex.Cr.App. 1999).  Point five is overruled. 
	Accordingly, the judgment of the trial court is affirmed.
							Per Curiam
Johnson, C.J., not participating.

Do not publish.
