









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-06-00076-CR
______________________________


JACE ALAN COPELAND, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 28,779-B





Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

	Jace Alan Copeland pled guilty, in April 2004, to two counts of intoxication
manslaughter.  His punishment was assessed, in keeping with a plea agreement, at ten
years' imprisonment, with imposition of sentence suspended and Copeland placed on
community supervision for a period of ten years. (1)  In September 2005, the trial court held
a hearing on the State's motion to revoke Copeland's community supervision, where
Copeland, without a plea agreement, pled true to the State's allegations.  At the end of the
hearing, the State recommended the trial court revoke Copeland's community supervision,
impose a ten-year sentence on each count, and order the sentences to run consecutively. 
The trial court followed the State's recommendation and sentenced Copeland accordingly. 
Copeland appeals, contending that the trial court's cumulation order was in violation of the
original plea agreement and that it denied Copeland due process of law.  We overrule
these contentions and affirm the judgment.   
	Article 42.08(a) of the Texas Code of Criminal Procedure gives a trial court
discretion to cumulate sentences:
	When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction.  . . . in the discretion of the
court, the judgment in the second and subsequent convictions may either be
that the sentence imposed or suspended shall begin when the judgment and
the sentence imposed or suspended in the preceding conviction has ceased
to operate, or that the sentence imposed or suspended shall run concurrently
with the other case or cases, and sentence and execution shall be
accordingly. . . .

Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2006). (2)  A complaint about
consecutive sentences is therefore reviewed under an abuse of discretion standard.  Macri
v. State, 12 S.W.3d 505, 511 (Tex. App.--San Antonio 1999, pet. ref'd).  In determining
whether the trial court abused its discretion, the appellate court must uphold the trial court's
ruling if it is reasonably supported by the record and is correct under any theory of law
applicable to the case.  Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App.
2005).  An appellate court must review the trial court's ruling in light of what was before the
trial court at the time the ruling was made.  Id.; Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000).  The trial court will not be overturned as long as its ruling is within
the zone of reasonable disagreement.  Id.  However, an improper cumulation order is, in
essence, a void sentence, and such error cannot be waived.  A defect which renders a
sentence void may be raised at any time.  LaPorte v. State, 840 S.W.2d 412, 415 (Tex.
Crim. App. 1992). 
	Copeland first alleges the State should be held to the original plea agreement
presented when Copeland pled guilty and was placed on community supervision.  He
complains the State should not be able to "change the deal" at the hearing to revoke
community supervision where the State recommended Copeland's sentences be
cumulated.  
	At the hearing in September 2005 on the State's motion to revoke Copeland's
community supervision, there was no plea agreement in place.  This fact was made explicit
by the trial court, and Copeland clearly understood he was entering an "open plea." 
Essentially, Copeland relies on the line of caselaw requiring adherence to a plea
agreement where the agreement is accepted by the trial court. (3)  However, once the trial
court accepted the State's recommendation at Copeland's initial plea in April 2004, that
plea agreement was satisfied.  See Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App.
1999).
	In Ditto, the plea agreement was that the State would recommend a sentence of at
most ten years and would not voice an opinion or recommendation on Ditto's application
for community supervision.  When the State later moved to have Ditto adjudicated and
sentenced, the trial court sentenced him to twenty years.  Ditto, 988 S.W.2d at 237.  The
Texas Court of Criminal Appeals found no error, because once Ditto was sentenced within
the terms of the plea agreement, the bargain was a "completed transaction."  Id. at 238. 
The court held that:  
	a plea agreement in which the State makes no recommendation on
probation or does not address it at all, but sets a cap on punishment, is
satisfied when the trial court assesses as punishment deferred adjudication
probation within the terms of the cap.  Imposition of a higher sentence is not
precluded upon proceeding to adjudication due to a violation of the terms of
deferred adjudication probation since the bargain was satisfied and
completed by previous assessment of the deferred adjudication probation. 

Id. at 239-40; see also Von Schounmacher v. State, 5 S.W.3d 221, 222-23 (Tex. Crim.
App. 1999).  
 	It was likewise a completed transaction in the instant case when, in April 2004, the
trial court followed the plea agreement and assessed Copeland's punishment at ten years'
imprisonment and placed him on community supervision for ten years.  The only
differences between Ditto and the instant case are that 1) Copeland was adjudicated on
his plea and placed on regular community supervision, as opposed to deferred adjudication
supervision assessed in Ditto; and 2) unlike Ditto, Copeland was not sentenced to more
time than agreed in the plea agreement; rather, Copeland's sentences for two counts were
cumulated.  These differences, however, do not make the holding of Ditto inapplicable. 
When the trial court followed the plea agreement at Copeland's initial trial in April 2004,
that was, as in Ditto, a completed transaction, and the trial court was not thereby precluded
from cumulating the two sentences at the revocation hearing in September 2005.  See also
Jones v. State, No. 2-04-313-CR, 2005 Tex. App. LEXIS 6991 (Tex. App.--Fort Worth
Aug. 25, 2005, pet. ref'd) (mem. op.) (not designated for publication) (on revocation of
community supervision for two counts of aggravated sexual assault of a child, trial court
could impose sentences consecutively, rather than concurrently). 
	Further, the record does not support Copeland's contention the State was permitted
to "change the deal" at the revocation hearing.  While the form plea agreement Copeland
signed at the time of his initial plea in April 2004 made no reference to multiple counts, that
form had a space to be completed if the State was abandoning any allegations in the
indictment, and that space was left blank.  During that proceeding, there were several
references that Copeland was pleading guilty to and being convicted of two counts, and
he was specifically admonished by the trial court that any term of confinement he received
"could be stacked, that is, run consecutively."  Finally, and most significantly, Copeland's
own trial attorney counseled him at that hearing, in no uncertain terms, concerning the
likelihood of his sentences being cumulated in the event he violated his community
supervision:
		Q.  [Defense counsel]  You understand that - - that the most
important, I guess, requirement [of the terms of community supervision] as
it affects you, is that you can never, under any circumstances, use alcohol
or any other intoxicant or any other controlled substance or dangerous drug. 
Do you understand that?

		A.  [Copeland]  Yes, sir.

		 . . . . 

		Q.  [Defense counsel]  And you understand that if you did, and that was
proved to the Court, the chances of you going to the penitentiary for ten years
[times] two, making it 20, is almost a dead certainty.  Do you understand that?

		Q.  [Copeland]  Yes, sir.  

	Further, in September 2005, before accepting Copeland's plea of true to the State's
alleged violations of community supervision, the trial court admonished him as follows:
	Under the law, if I revoke your probation, I may stack each sentence, one on
top of the other.  In other words, revoke on Count I and give you a certain
amount of time and revoke on Count II and give you a certain amount of
time, and order that the second sentence, the one on the second count not
to begin until the first one's been satisfied.

The trial court asked Copeland if he understood, and he responded, "Yes, sir."  The court
then continued its colloquy with Copeland:
			THE COURT:  Now, understanding that procedure, do you still
want to continue this plea?

		A.  [Copeland]  Yes, sir.

			THE COURT:  You sure?

		A.  [Copeland]  Yes, sir.
 
	Copeland cannot now be heard to say the State was allowed to "change the deal"
at his revocation hearing.  The record shows he was fully aware of the "almost . . . dead
certainty" of what would happen if he violated the terms and conditions of his community
supervision.  His first point of error is overruled. 
	Copeland's second point of error complains that the trial court abused its discretion
in cumulating the sentences "without prior notice to the Defendant from the State of its
intent to seek cumulated sentences upon revocation."  Copeland contends he had a right
to notice of the State's intent to seek cumulation, and, citing Marin v. State, (4) argues this is
a right which "must be implemented by the system unless expressly waived."  Marin, 851
S.W.2d at 279. 
	As noted above, the trial court has complete discretion regarding cumulation. 
Copeland offers no authority, and we find none, for his argument that the State should
have notified him of its intent to seek cumulation of sentences.  We overrule his second
point of error.
	Having found the trial court's cumulation order did not violate the original plea
agreement and that it did not deny Copeland due process of law, we affirm the judgment.



						Donald R. Ross
						Justice

Date Submitted:	September 15, 2006
Date Decided:	October 3, 2006

Do Not Publish
1. The judgment finding Copeland guilty and placing him on community supervision
makes no direct reference to two counts, but recites that he was adjudged guilty of
"intoxication manslaughter; (Criminal Episode)."  The Texas Penal Code defines criminal
episode as "the commission of two or more offenses."  Tex. Pen. Code Ann. § 3.01
(Vernon 2003).
2. The trial court's discretion under this article is limited by Section 3.03(a) of the
Texas Penal Code when multiple offenses arising out of the same criminal episode are
tried in a single criminal action, in which case, the sentences must run concurrently. 
However, there are exceptions to this limitation imposed by Section 3.03(b), and if one of
these exceptions applies, the court may impose sentences to run concurrently or
consecutively.  Sentences for multiple convictions of intoxication manslaughter fall under
these exceptions.  Tex. Pen. Code Ann. § 3.03(b) (Vernon Supp. 2006).    
3. See generally Santobello v. New York, 404 U.S. 257, 260-62 (1971).
4. 851 S.W.2d 275 (Tex. Crim. App. 1993).


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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00212-CR
                                                ______________________________
 
 
                                     THE STATE OF
TEXAS, Appellant
 
                                                                V.
 
                          CHRISTOPHER CHARLES BROWN, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the Sixth
Judicial District Court
                                                             Lamar County, Texas
                                                            Trial
Court No. 23360
 
                                                          
                                        
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                    Opinion by Chief Justice Morriss
Concurring Opinion by Justice Carter




                                                                   O P I N I O N
 
            In its
indictment, the State alleged that, on or about July 26, 2009, Christopher
Charles Brown fled from Officer Ronnica Blake in a motor vehiclea violation of
Section 38.04 of the Texas Penal Code[1]and
that, in the process, Brown used or displayed a deadly weapon, that is, the
motor vehicle.  The deadly weapon
allegation, if proven, would make the offense punishable as a third-degree
felony.  Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2009).
            Brown
presented a two-fold attack on the indictment in the trial court, and the trial
court quashed the indictment.  On appeal,
both issues are addressed by the State and by Brown.  We therefore address both issues.  We reverse the order quashing the indictment
because (1) the indictments deadly weapon allegation is appropriate, and (2) the
indictment provides sufficient notice of the offense.
(1)        The Indictments
Deadly-Weapon Allegation Is Appropriate
 
            The State contends it was improper to quash the
deadly-weapon allegation in the indictment because the offense of evading
arrest with a vehicle is susceptible to an affirmative deadly-weapon finding.[2]
            We initially
determine the appropriate standard of review to be employed when reviewing a
trial courts decision to quash an indictment.  The amount of deference appellate courts
afford a trial courts rulings depends on which judicial actor is better
positioned to decide the issue.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).  The sufficiency of an
indictment is a question of law.  State v. Moff, 154 S.W.3d 599, 601 (Tex.
Crim. App. 2004).  Here, the decision of
the trial court was based solely on the indictment, the motion to quash, and
the argument of counsel.  When the
resolution of a question of law does not turn on an evaluation of the
credibility and demeanor of a witness, then the trial court is not in a better
position to make the determination, so appellate courts should conduct a de
novo review of the issue.  Id. 
We therefore apply a de novo standard in our review of the trial courts
decision to quash the indictment.
            Brown
emphasizes the fact that the indictment fails to allege either of the
contingencies permitting enhancement of the base offense under Section 38.04 to
a third-degree felony.[3]  Instead, Brown asserts, the language of the
indictment attempts to enhance a state-jail felony to a third-degree felony by
the verbal trick of using the same essential allegationuse of a vehicle to
upgrade the base class B misdemeanor to a state-jail felony.  Brown claims this amounts to an impermissible
double enhancement.
            In support
of his position that a deadly weapon allegation cannot be appended to an
offense charged under Section 38.04, Brown notes that Section 38.04 does not
include an enhancement provision based on the use of a deadly weapon.  See
Tex. Penal Code Ann. § 38.04.  Brown further relies on the language of Section
38.03, which specifically includes a provision for enhancement based on the use
of a deadly weapon.[4]  Tex.
Penal Code Ann. § 38.03 (Vernon 2003). 
Brown therefore contends that, in light of the inclusion of a deadly
weapon enhancement in the preceding section of the statute, the Legislature did
not intend such an enhancement to apply to Section 38.04.[5]  See
Tex. Penal Code Ann. § 38.04.
            When we
interpret a statute, we look to the literal text for its meaning, and we
ordinarily give effect to that plain meaning, unless the plain language is
ambiguous or the application of the statutes plain language would lead to
absurd consequences that the Legislature could not possibly have intended.  State
v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000); Bunton v. State, 136 S.W.3d 355, 363 (Tex. App.Austin 2004, pet.
refd).  Section 38.04 of the Texas Penal
Code does not contain language prohibiting a finding that a vehicle used by an
individual while in flight is a deadly weapon.  See Tex. Penal Code Ann. § 38.04. 
Moreover, Section 12.35(c)(1) refers generally to an individual adjudged
guilty of a state-jail felony who uses or exhibits a deadly weapon during the
commission of the offense or during immediate flight thereafter, making no
exceptions for felonies where the use of a deadly weapon is an essential
element of the offense.  The language of Section
12.35 is not permissive; rather, it is mandatory.  An individual adjudged guilty of a state
jail felony shall be punished for a
third degree felony if it is shown at trial that a deadly weapon was used or
exhibited during the commission of the offense or immediate flight therefrom.  Tex. Penal Code Ann. § 12.35(c)(1)
(emphasis added).
            The plain
language of Section 12.35(c)(1) is neither ambiguous, nor does its application
to the state-jail felony of evading arrest or detention by fleeing in a vehicle
lead to absurd consequences that the Legislature could not have
envisioned.  Further, Texas caselaw
supports the proposition that an affirmative finding of a deadly weapon is
permitted even where the use of the instrumentality characterized as a deadly weapon
is an essential element of the committed offense.
            Our sister
court in Fort Worth addressed a similar issue. 
See Martinez v. State, 883 S.W.2d 771 (Tex. App.Fort Worth 1994, pet.
refd).  Martinez was convicted of
involuntary manslaughter for causing the victims death as a result of driving
while intoxicated.  The jury found that
Martinez used a deadly weapona vehicleduring commission of the offense.  On appeal, Martinez argued that the deadly
weapon finding violated his double jeopardy rights because the action
constituting the use of the deadly weapon (driving a vehicle while intoxicated)
was also an essential element of the charged offense.  In rejecting this argument, the Martinez court recognized that the
relevant statute made no exception for enhancement of felonies when the use of
a deadly weapon is an essential element of the offense.  The court concluded, We see nothing that
would lead us to any other conclusion but that the Legislature intended for the
deadly-weapon provisions to apply in every felony case as the context of the
law suggests.  Id. at 774; cf. Tyra v. State,
897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (stating that prior caselaw does not
support the proposition that the phrase used or exhibited a deadly weapon
during the commission of a felony offense necessarily means used or exhibited
a deadly weapon during the commission of an offense which does not otherwise
require the use or exhibition of a deadly weapon); Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989)
(agreeing with lower courts conclusion that all felonies are theoretically
susceptible to an affirmative finding of use or exhibition of a deadly
weapon).
            Likewise, in
Thomas v. State, 2 S.W.3d 640 (Tex.
App.Dallas 1999, no pet.), Thomas claimed the trial courts failure to delete
a deadly weapon allegation from the indictment was error because the same
allegation was used to raise the charged offense from misdemeanor assault to
felony assault under Section 22.02(a)(2) of the Texas Penal Code.[6]  In overruling this point of error, the court
relied on the reasoning used in Martinez,
finding it to be persuasive.  Id. at 643. 
            Section
12.35 of the Texas Penal Code makes no exception to the enhancement requirement
where, as here, the instrumentality alleged to be a deadly weapon is also an
essential element of the offense to be enhanced.  Moreover, we find the reasoning of Martinez to be persuasive and further
find no authority to support the proposition that the deadly weapon allegation
could not appropriately be appended to the indictment against Brown.  Accordingly, we overrule this point of error.
(2)        The Indictment Provides
Sufficient Notice of the Offense
 
            The
State also contends that, because the indictment precisely tracked the
statutory language of Sections 38.04 and 12.35(c)(1) of the Texas Penal Code,
it provided Brown with sufficient notice of the offense with which he was
charged.  As previously noted, Brown was
indicted for evading arrest while using a motor vehicle, a state-jail felony
under Section 38.04(b)(1) of the Texas Penal Code.  Tex.
Penal Code Ann. § 38.04(b)(1).  In
addition, the indictment alleged the use of a motor vehicle as a deadly weapon
in the commission of the offense, making the offense punishable as a third-degree
felony.[7]  
            The
indictment against Brown consists of a cover page[8]
and a second page containing a caption, three paragraphs of text, and the
signature of the foreman of the grand jury.[9]  Brown contends the indictment fails to allege
facts which permit enhancement of the base offense to a third-degree felony
under Section 38.04 of the Texas Penal Code,[10]
and further contends that Section 38.04 does not permit enhancement of the
offense of evading arrest to a felony of the third degree for the use or
exhibition of a deadly weapon. 
Accordingly, Brown concludes that the enhancement was apparently based
on the deadly weapon enhancement provision in Section   38.03
of the Texas Penal Code.[11]
 The result, Brown says, is that the
indictment is so unclear it fails to provide sufficient notice of the offense
with which he has been charged, thus rendering the indictment defective.  We disagree.
            The Texas
Constitution and Texas Code of Criminal Procedure require that an indictment
provide an accused with adequate notice. 
Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon
2005); Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App.
2000), overruled in part on other grounds
by Gollihar v. State, 46 S.W.3d
243 (Tex. Crim. App. 2001).  This
constitutional mandate requires that the charging instrument convey adequate
notice from which the accused may prepare his or her defense.  Moff,
154 S.W.3d at 601.  Article 21.11 of the Texas
Code of Criminal Procedure provides, in pertinent part:
     An
indictment shall be deemed sufficient which charges the commission of the
offense in ordinary and concise language in such a manner as to enable a person
of common understanding to know what is meant, and with that degree of
certainty that will give the defendant notice of the particular offense with
which he is charged . . . . 
 
Tex. Code Crim. Proc. Ann. art. 21.11
(Vernon 2009).
 
            The
sufficiency of an indictment is a question of law reviewed de novo.  Moff,
154 S.W.3d at 601.  In determining
whether a defendant has sufficient notice to prepare his or her defense, we
must determine whether the charging instrument fails to provide all the
requisites of notice.  Olurebi v. State, 870 S.W.2d 58, 61
(Tex. Crim. App. 1994).  Subject to rare
exceptions, not applicable here, an indictment which tracks the statutory
language will satisfy constitutional and statutory notice requirements.  State
v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); Tullous v. State, 23 S.W.3d 195, 196 (Tex. App.Waco 2000, pet. refd).
            Here, the indictment tracks the language of Section
38.04.  See Tex. Penal Code Ann.
§ 38.04.  It is alleged that Brown
intentionally fledusing a vehiclefrom a peace officer who was lawfully
attempting to arrest or detain him.  If a
vehicle is used to flee, and the alleged felon has not previously been
convicted of evading arrest, the appropriate charge is that of a state-jail
felony.   See id.  There are no other means
to commit the offense other than what is outlined by statute and what is charged
in the indictment.
            Further, the
indictment does not track the language of Section 38.03, which explicitly
requires that the actor intentionally prevent or obstruct a peace officer from
effecting an arrest by the use of force against the peace officer or another.  See
Tex. Penal Code Ann. §
38.03.  No such allegations are set forth
in the indictment.  Hence, the language
of the indictment does not provide any reasonable basis on which to conclude
that it is, even in part, based on Section 38.03 of the Texas Penal Code.
            Because the
indictment alleged that Brown fled from Blake in his vehicle, the charge would
be a state-jail felony, but for the allegation that Brown used his vehicle as a
deadly weapon during the commission of the alleged felony.  Consequently, the State used Section
12.35(c)(1) of the Texas Penal Code to seek to enhance punishment to that of a
third-degree felony based on the deadly-weapon allegation.  See
Tex. Penal Code Ann. §
12.35(c)(1).  The indictment alleges that
a deadly weapona vehiclewas used or exhibited by Brown during the commission
of the felony offense, or during the immediate flight following the commission
of the felony.  The statute provides that
a state-jail felony is punishable as a third-degree felony if a deadly weapon
was used or exhibited during the commission of the offense or during immediate
flight following the commission of the offense . . . .  Tex.
Penal Code Ann. § 12.35(c)(1). 
Because the indictment tracks the statutory language of Sections 38.04
and 12.35(c)(1), it satisfies the statutory and constitutional notice
requirements.  See Mays, 967 S.W.2d at 406.
            We overrule
this point of error.
 
            We reverse
the order quashing the indictment and remand this case to the trial court for
further proceedings.
 
 
 
                                                                                    Josh
R. Morriss, III
                                                                                    Chief
Justice
 
 
 
CONCURRING OPINION 
 
            The argument
of Christopher Charles Brown is that the State has been allowed to enhance the
punishment by proving a motor vehicle was used as a deadly weapon when the
underlying offense also requires proof that a vehicle was used.  Proof of these two requirements is not the
same.
            The
misdemeanor offense of evading arrest or detention is committed if the party
flees; it becomes a state jail felony when the party uses a motor vehicle.  Tex.
Penal Code Ann. § 38.04(a), (b)(1).[12]  Theoretically a motor vehicle may be used in
many wayseven if it is driven in a safe, uneventful manner, the offense would
be a state jail felony.  The allegation
that the vehicle was used or exhibited as a deadly weapon requires much more
proof.  Since a motor vehicle is not
manifestly designed to inflict injury, there must be proof that in the manner
of its use or intended use, it was capable of causing death or serious bodily
injury.  Tex. Penal Code Ann. §
1.07(17) (Vernon Supp. 2009).  As
we have recently held, proof that a vehicle is capable of causing serious
bodily injury requires a showing of actual danger such as another person being
present at the same time and place when the defendant drove in a reckless
manner.  Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.Texarkana 2007,
pet. refd). 
            In this case,
proof that Brown merely used a vehicle, in some manner, when he fled from the
peace officer would classify the offense as a state jail felony, but would not
be sufficient proof that the vehicle was being used as a deadly weapon.  I concur with the majority opinion.  
            
 
                                                                                    Jack
Carter
                                                                                    Justice
 
Date Submitted:          May
3, 2010    
Date Decided:             May
14, 2010
 
Publish
 




[1]The
Texas Legislature amended Section 38.04 of the Texas Penal Code in the 2009
legislative session, changing the base offense under Section 38.04 from a class
B to a class A misdemeanor and adding an additional ground for enhancement to a
state-jail felony.  House Bill 211 became
effective September 1, 2009.  Because the
indictment here was returned and filed August 13, 2009, pre-amendment version
of Section 38.04 applies, which provides, in pertinent part, as follows:
 
Evading Arrest or
Detention 
 
   (a) A person commits an offense if he
intentionally flees from a person he knows is a peace officer attempting
lawfully to arrest or detain him.
 
   (b) An offense under this section is a Class
B misdemeanor, except that the offense is:
 
      (1)
a state jail felony if the actor uses a motor vehicle while the actor is in
flight and the actor has not been previously convicted under this section;
 
      (2)
a felony of the third degree if:
 
         (A)
the actor uses a vehicle while the actor is in flight and the actor has been
previously convicted under this section; or
 
          (B) another suffers serious bodily
injury as a direct result of an attempt by the officer from whom the actor is
fleeing to apprehend the actor while the actor is in flight; . . . . 
 
See Act of
May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 438586
(prior version at Tex. Penal Code Ann.
§ 38.04 (Vernon 2003)).
 


[2]The
record before us indicates the indictment was quashed in its entirety.  
 


[3]Those
contingencies include the use of a vehicle to flee when there has been a
previous conviction under this section or when another is seriously injured as
a direct result of the illegal flight.  See Tex.
Penal Code Ann. § 38.04(b)(2)(A), (B).
 


[4]Section
38.03(d) provides that an offense under this section is a felony of the third
degree if the actor uses a deadly weapon to resist the arrest or search.  Tex.
Penal Code Ann. § 38.03(d).
 


[5]The
enhancement provisions in Sections 38.03 and 38.04 increase the level of
offense with which the accused is charged. 
Tex. Penal Code Ann. §§
38.03, 38.04.  The enhancement provisions
of Section 12.35 increase the level of punishment, rather than the level of
offense charged.  See Tex. Penal Code Ann.
§ 12.35.  To the extent that these
statutes deal with substantively different notions, i.e., range of punishment
versus level of offense, such comparisons are largely inapposite.


[6]Tex. Penal Code Ann. § 22.02(a)(2)
(Vernon Supp. 2009).
 


[7]Section
12.35 of the Texas Penal Code provides, in pertinent part:
 
            (c)     An individual adjudged guilty of a state
jail felony shall be punished for a third degree felony if it is shown on the
trial of the offense that:
                
                     (1)    
a deadly weapon as defined by Section 1.07 was used or exhibited during
the                commission of the
offense or during immediate flight following the commission of                          the
offense, and that the individual used or exhibited the deadly weapon or was a                         party
to the offense and knew that a deadly weapon would be used or exhibited; . . .
. 
 
Tex. Penal Code
Ann. § 12.35.
                


[8]The cover page lists the charge as EVADING
ARREST/DETENTION W/MOTOR VEHICLE, DEADLY WEAPON FINDING, TEXAS PENAL CODE, SECTION
38.04 3RD DEGREE, A TRUE BILL.
 


[9]The
text of the indictment reads:
 
In The Name and
by the Authority of the State of Texas:
The Grand Jurors
of the County of Lamar, State aforesaid, duly organized as such at the July
Term, A.D., 2009, of the District Court of the Sixth Judicial District for said
County, upon their oaths in said Court present that CHRISTOPHER CHARLES BROWN
on or about July 26, 2009 in Lamar County, Texas, anterior to the presentment
of this indictment, did then and there intentionally flee, using a vehicle,
from Ronnica Blake, knowing Ronnica Blake was a peace officer who was
attempting to lawfully arrest or detain the Defendant,
 
                And it is further presented to
said Court that a deadly weapon, to-wit: a motor vehicle, was used or exhibited
during the commission of the felony offense and that the Defendant used or
exhibited the deadly weapon.
 
                Against the peace and dignity of
the State.
                


[10]Section
38.04 permits enhancement to a third-degree felony when the actor uses a
vehicle to flee and he or she has been previously convicted under this section
or when another is seriously injured as a direct result of the actors illegal
flight.  See Tex. Penal Code Ann.
§ 38.04(b)(2)(A), (B).
 


[11]This
section of the Code explicitly permits enhancement to a third-degree felony:
 
§ 38.03.    Resisting Arrest, Search, or Transportation
 
     (a)   A
person commits an offense if he intentionally prevents or obstructs a person he
knows is a peace officer or a person acting in a peace officers presence and
at his direction from effecting an arrest, search, or transportation of the
actor or another by using force against the peace officer or another.
 
     (b)   It
is no defense to prosecution under this section that the arrest or search was
unlawful.
 
     (c)   Except
as provided in Subsection (d), an offense under this section is a Class A
misdemeanor.
 
     (d)   An
offense under this section is a felony of the third degree if the actor uses a
deadly weapon to resist the arrest or search.
 
Tex.
Penal Code Ann. § 38.03.


[12]See Act of May 27, 2009, 81st Leg.,
R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 438586 (prior version at Tex. Penal Code Ann. § 3804 (Vernon
2003)). 


