                                                                     ACCEPTED
                                                                13-14-00563-CR
                                                  THIRTEENTH COURT OF APPEALS
                                                        CORPUS CHRISTI, TEXAS
                                                          1/27/2015 10:09:20 PM
                                                               DORIAN RAMIREZ
                                                                         CLERK


            No. 13-14-00563-CR
      IN THE COURT OF APPEALS        FILED IN
                             13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT  OF TEXAS
                          CORPUS  CHRISTI/EDINBURG, TEXAS
 AT CORPUS CHRISTI – EDINBURG,  TEXAS
                             1/27/2015 10:09:20 PM
                                    DORIAN E. RAMIREZ
                                         Clerk
      ENRIQUE SANCHEZ SALAZAR,
               Appellant

                     v.

             STATE OF TEXAS
                 Appellee


   ON APPEAL FROM THE 156TH DISTRICT COURT
         OF LIVE OAK COUNTY, TEXAS
          CAUSE NO. L-14-0025-CR-B


           APPELLANT’S BRIEF


                      Abner Burnett
                      Texas Bar No. 03425770
                      Email: aburnett@trla.org
                      Bee County Regional Public Defender
                      331A North Washington
                      Beeville, TX 78102
                      Tel: (361) 358-1925
                      Fax: (361) 358-5158
                      Lead Attorney for Appellant




      ORAL ARGUMENT REQUESTED
                             LIST OF PARTIES

Appellant
Enrique Sanchez-Salazar

Appellee
The State of Texas

Defense Counsel at Trial                 State’s Attorney at Trial

Michelle Ochoa                           Mr. Jose Aliseda
SBOT: 24032428                           District Attorney
                                         SBOT: 01012900
Jamie Dickson
SBOT: 24072066                           Mr. George James Sales, III
                                         Assistant District Attorney
Beeville Regional Public Defender        SBOT: 17531960
331A North Washington
Beeville, Texas 78102                    Mr. Jon W. West
                                         Assistant District Attorney
Rachel Littrell Cook                     SBOT: 00786505
SBOT: 24078367
Texas RioGrande Legal Aid, Inc.          156th Judicial District Attorney
316 S. Closner                           111 St. Mary’s St., Ste 203
Edinburg, Texas 78539                    Beeville, Texas 78102



Appellant’s Attorney on Appeal           State’s Attorney on Appeal
Abner Burnett                            Jose Aliseda
SBOT: 03425770                           District Attorney
                                         (or his designated representative)
Celestino Gallegos                       SBOT: 01012900
SBOT: 24040942
                                         156th Judicial District Attorney
Beeville Regional Public Defender        111 St. Mary’s St., Ste 203
331A North Washington                    Beeville, Texas 78102
Beeville, TX 78102



                                    ii
                                         TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
ISSUES PRESENTED...............................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................3
STATEMENT OF FACTS ........................................................................................6

    I. SUMMARY OF TESTIMONY AND EXHIBITS PRESENTED DURING
    THE GUILT/INNOCENCE PHASE OF TRIAL.................................................6
    II. THE TRIAL COURT REFUSED TO ACCEPT AN AGREED JURY
    CHARGE CONTAINING AN INSTRUCTION ON THE LESSER
    INCLUDED OFFENSE OF EVADING ON FOOT UNDER TEX. PEN. CODE
    § 38.04 (B)(1)......................................................................................................12

    III. SUMMARY OF THE EVIDENCE AND THE TRIAL COURT’S
    FINDINGS DURING THE PUNISHMENT PHASE. .......................................14

SUMMARY OF ARGUMENT ...............................................................................18
STANDARD OF REVIEW .....................................................................................20

ARGUMENT ...........................................................................................................22
    I. THE TRIAL COURT ERRED BY REFUSING TO INCLUDE AN
    INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF EVADING
    ARREST ON FOOT IN THE JURY CHARGE. ...............................................22

         A. Evading arrest on foot is a lesser included offense of evading arrest
         using a vehicle. ..............................................................................................23

             1. A comparison of the elements of the two offenses results in a finding
             that evading arrest on foot under TEX. PEN. CODE § 38.04 (a) is a

                                                           iii
       lesser included offense of evading arrest using a vehicle under TEX.
       PEN. CODE §38.04(b). ............................................................................23

       2. Other courts have found that evading arrest under TEX. PEN. CODE
       § 38.04 (a) is a lesser included offense of evading arrest using a vehicle
       under TEX. PEN. CODE §38.04 (b). .......................................................29

   B. There is some evidence from which a rational jury could acquit
   Appellant of the greater offense while convicting him of the lesser-included
   offense............................................................................................................29

II. THE TRIAL COURT’S ERROR OF REFUSING TO INCLUDE AN
INSTRUCTION ON THE LESSER INCLUDED OFFENSE IN THE JURY
CHARGE WAS NOT HARMLESS. .................................................................32

III. THE TRIAL COURT ERRED BY ALLOWING APPELLANT’S
ATTORNEY TO TESTIFY REGARDING FACTS THAT CAME TO HIS
KNOWLEDGE THROUGH THE ATTORNEY-CLIENT RELATIONSHIP
PURSUANT TO TEX. R. EVID. 503 (B)(2). ....................................................33

   A. The trial court erred by admitting the privileged statements of
   Appellant’s criminal defense attorney for the related federal case into
   evidence. ........................................................................................................33

   B. The trial court’s error in admitting privileged communications was not
   harmless. ........................................................................................................34

IV. THE TRIAL COURT ERRED BY USING A STATE JAIL FELONY
CONVICTION AS A PREDICATE OFFENSE FOR A HABITUAL
OFFENDER ENHANCEMENT UNDER TEX. PEN. CODE § 12.42 (D). .....35

   A. A habitual felony enhancement cannot rely on a prior conviction for a
   state jail felony as a predicate offense. ..........................................................35

   B. The 2009 Aggravated Assault Conviction was for a state jail felony
   punishable under TEX. PEN. CODE § 12.35 (a). .........................................37

   C. Appellant’s conviction was illegal because it exceeded the range of
   punishment authorized by law. ......................................................................39

V. THE OFFENSE LEVEL FOR A VIOLATION OF EVADING WITH A
VEHICLE IN VIOLATION OF TEX. PEN. CODE § 38.04 (B) IS PROPERLY
A STATE JAIL FELONY AND NOT A THIRD DEGREE FELONY. ...........40
                                                       iv
         A. Appellant was convicted of a third degree felony for evading arrest
         using a vehicle absent any aggravating factors involving serious injury to
         another or previous conviction under Tex. Pen. Code § 38.04. ....................40

         B. The text of Texas Penal Code § 38.04 is ambiguous on its face because
         the competing amendments from the 82nd Legislature cannot be reconciled
         under the Texas Code Construction Act........................................................41

         C. The Court should not follow the decisions of the Houston and Fort
         Worth courts of appeals, because the rule of lenity dictates that an
         ambiguous statute should be interpreted in favor of the Appellant...............44

         D. Appellant’s voidable conviction of a third degree felony instead of a
         state jail felony subjected him to the habitual offender mandatory minimum
         sentencing enhancement. ...............................................................................46

    VI. CONCLUSION ...........................................................................................47
PRAYER ..................................................................................................................48

APPENDIX ..............................................................................................................51




                                                            v
                                    INDEX OF AUTHORITIES

Cases
Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App. 1994)................................. 21, 35

Adetomiwa v. State, 421 S.W.3d 922 (Tex.App. 2014) .................................... 46, 48

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984)............................... 21, 22
Ates v. State, 21 S.W.3d 384 (Tex. App. 2000) .......................................................37

Carmona v. State, 947 S.W.2d 661 (Tex.App.—Austin 1997, no pet.) ..................22
Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App.1996) (per curiam) ......................23

Ex parte Harris, 495 S.W.2d 231 (Tex.Crim.App. 1973) .......................... 23, 44, 52
Ex parte Hill, 528 S.W.2d 125 (Tex.Crim.App.1975) ............................... 24, 44, 52

Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013) .....................................42
Ex parte Pena, 71 S.W.3d 336 (Tex.Crim.App.2002) ............................................23
Farrakhan v. State, 263 S.W.3d 124 (Tex.App. 2006) aff'd, 247 S.W.3d 720
  (Tex.Crim.App. 2008) ..........................................................................................29
Goad v. State, 354 S.W.3d 443 (Tex.Crim.App. 2011) ...........................................34

Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007) ............................................32
Harvill v. State, 13 S.W.3d 478 (Tex.App.-Corpus Christi 2000, no pet.) 23, 44, 52

Hayward v. State, 158 S.W.3d 476 (Tex.Crim.App. 2005).....................................26

Hobbs v. State, 175 S.W.3d 777 (Tex.App. 2005) ..................................... 13, 30, 32
In re Small, 346 S.W.3d 657 (Tex. App. 2009) .......................................................36
Infante v. State, 397 S.W.3d 731 (Tex.App. 2013) .................................................26

Jacob v. State, 892 S.W.2d 905 (Tex.Crim.App. 1995) ................................... 25, 26
Kay v. State, 340 S.W.3d 470 (Tex. App.--Texarkana 2011, no pet.) .....................38

                                                        vi
Kos v. State, 15 S.W.3d. 633 (Tex.App.--Dallas 2000, no pet.) ..............................22

Lara v. State, No. 13-04-282-CR, 2007 WL 431241 (Tex. App.—Corpus Christi,
  Edinburg, Feb. 8, 2007, no pet.) .................................................................... 13, 31

Mims v. State, 434 S.W.3d 265 (Tex.App. 2014) ............................................. 48, 49

Mizell v. State, 119 S.W.3d 804 (Tex.Crim.App.2003).............................. 23, 44, 52

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................23

Powell v. State, 206 S.W.3d 142 (Tex.App. 2007) ..................................... 12, 31, 32
Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App. 1993) ....................................24

Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) (plurality op. on reh'g) ..24
Sanford v. State, 21 S.W.3d 337 (Tex. App. 2000) .......................................... 22, 38

Smith v. State, 960 S.W.2d 372 (Tex.App.—Houston [1st Dist.] 1998, pet ref’d) .40
State v. Allen, 865 S.W.2d 472 (Tex. Crim. App. 1993) .........................................43
State v. Mancuso, 919 S.W.2d 86 (Tex.Crim.App. 1996) ................................ 40, 42

State v. Webb, 980 S.W.2d 924 (Tex. App. 1998) aff'd, 12 S.W.3d 808
  (Tex.Crim.App. 2000) ................................................................................... 39, 42
State v. White, 959 S.W.2d 375 (Tex. App. 1998)............................................ 40, 42

Strong v. State, 773 S.W.2d 543 (Tex. Crim. App. 1989) .......................................37

Sweed v. State, 351 S.W. 3d 63 (Tex.Crim.App. 2011) ....................... 13, 24, 31, 34
Warner v. State, 245 S.W.3d 458 (Tex.Crim.App. 2008) .......................................21

Wilkerson v. State, 927 S.W.2d 112 (Tex. App. 1996)............................................43

Statutes
House Bill 3423, Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex.
 Sess. Law Serv. 2110, 2111 (West)............................................................... 46, 47



                                                      vii
Senate Bill 1416, Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex.
  Sess. Law Serv. 2320, 2320–21 (West)......................................................... 46, 47

Senate Bill 496, Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011 Tex.
  Sess. Law Serv. 1046, 1046 (West)............................................................... 46, 47

Texas Criminal Procedure Code Ann. art. 36.14 (West) .................................. 21, 35

Texas Criminal Procedure Code Ann. art. 37.09 (West) .................................. 25, 29
Texas Criminal Procedure Code Ann. art. 42.12 (West) .........................................39

Texas Government Code § 311.003.........................................................................49
Texas Government Code § 311.025.........................................................................48
Texas Penal Code Ann. § 12.21 (West) ...................................................................35

Texas Penal Code Ann. § 12.33 (West) ............................................................ 43, 52
Texas Penal Code Ann. § 12.42 (West) ........................................................... passim

Texas Penal Code Ann. § 12.425 (West) .................................................... 39, 41, 52
Texas Penal Code Ann. § 20A.03 (West) ................................................................39
Texas Penal Code Ann. § 21.02 (West) ...................................................................39
Texas Penal Code Ann. § 22.02 (West) ............................................................ 17, 41

Texas Penal Code Ann. § 38.04 (West) ........................................................ 1, 29, 49

Rules
Texas Rule of Appellate Procedure 21.8. ..................................................................6
Texas Rule of Appellate Procedure 39.1 ...................................................................1

Texas Rule of Appellate Procedure 39.2 ...................................................................1

Texas Rule of Evidence 503 ......................................................................... 3, 36, 37




                                                     viii
TO THE HONORABLE COURT OF APPEALS:

       Appellant Enrique Sanchez Salazar submits this brief on appeal.

                             STATEMENT OF THE CASE
       After a trial before a jury, Appellant was convicted of third degree felony for

violation of Texas Penal Code § 38.04 (b)(2)(a). Appellant elected to have the trial

court assess punishment.           Following a punishment hearing, the trial court

sentenced him to thirty-eight (38) years of confinement in the Texas Department of

Criminal Justice Institutional Division. CR. 1: 142-43.1



                STATEMENT REGARDING ORAL ARGUMENT
       Appellant requests oral argument before the Court pursuant to Texas Rule of

Appellate Procedure 39.1 and 39.2, as oral argument would clarify the written

arguments in the briefs.



                                  ISSUES PRESENTED
    1. WHETHER THE OFFENSE OF EVADING ARREST OR DETENTION

       FOUND AT TEXAS PENAL CODE § 38.04(A) IS A LESSER

1
  For the purposes of citing to the record in this case, the following abbreviations are used. For
citing to the official transcript: TR (Transcript Record).1 (volume of the record): 1 (page
number). Thus TR.1: 1, references Volume 1, page 1 of the appeal record. For citations to the
clerk’s Record: CR (Clerk’s Record).1 (volume of the record): 1 (page number). Thus CR.1: 1,
references page 1 of the Clerk’s Record.


                                                1
  INCLUDED OFFENSE OF EVADING ARREST OR DETENTION

  USING A VEHICLE FOUND AT SUBSECTION (B) OF THE SAME

  STATUTE.



2. WHETHER A SCINTILLA OF EVIDENCE EXISTS THAT WOULD

  ALLOW A TRIER OF FACT TO FIND THAT APPELLANT DID NOT

  USE A VEHICLE WHILE IN FLIGHT.



3. WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S

  REQUEST FOR A JURY INSTRUCTION ON THE OFFENSE OF

  EVADING ARREST OR DETENTION PURSUANT TO TEXAS PENAL

  CODE § 38.04 (A).



4. WHETHER     THE    TRIAL   COURT   ERRED   IN   ALLOWING

  APPELLANT’S ATTORNEY TO TESTIFY REGARDING FACTS THAT

  CAME TO HIS KNOWLEDGE THROUGH THE ATTORNEY CLIENT

  PRIVILEGE PURSUANT TO TEXAS RULE OF EVIDENCE 503 (B)(2).



5. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY

  USING A STATE JAIL OFFENSE AS A PREDICATE FOR A


                              2
      HABITUAL OFFENDER ENHANCEMENT UNDER TEXAS PENAL

      CODE § 12.42 (D).



   6. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY

      FINDING THAT THE APPELLANT COMMITTED A THIRD DEGREE

      FELONY OFFENSE OF EVADING ARREST OR DETENTION WITH A

      VEHICLE PURSUANT TO TEXAS PENAL CODE § 38.04 (B)(2)(A).



                STATEMENT OF PROCEDURAL HISTORY
      Appellant was indicted by a grand jury of Live Oak County, Texas for using

a vehicle to evade arrest or detention by a peace officer on July 19, 2013. CR.1:

6-7. The indictment contained reference to enhancements based on two prior

convictions: 1) a felony conviction for aggravated sexual assault from the 49th

District Court of Webb County, Texas in Cause Number 2002CRS60 dated May

13th, 2002; and 2) a felony conviction for aggravated assault with a deadly weapon

in Cause Number 2009-CRM-000050-D3 from the 341st District Court of Webb

County, Texas dated June 4, 2009. Id.

      The case was tried to a jury on September 2, 2014. TR. 2: 7-17. Appellant

plead not guilty. TR.2: 65-6.




                                        3
      The State presented its case in chief, which consisted of testimony from five

witnesses and the admission of State’s exhibits 1-5. At the conclusion of the

presentation of its evidence, the State rested. TR.2: 129. Appellant presented no

evidence and rested immediately after the State. TR.2: 130.

      On September 3, 2014, the parties reappeared before the Court outside of the

presence of the jury for the charging conference. TR.3: 8-12. The Court ruled on

the proposed jury charge, rejecting the agreed charge containing an instruction on

the lesser included offense of evading without the use of a vehicle. TR.3: 10-11.

Appellant made an offer of proof of the proposed jury charge that included the

lesser included offense. TR.3: 11; CR.1: 56-61. The Court read the Charge of the

Court and gave the jury instruction. TR.3: 12-13. Following closing argument and

deliberations, the jury returned a unanimous verdict that Appellant was guilty of

the offense of evading arrest using a vehicle as charged in the indictment. TR.3:

30-31.

      The punishment phase was conducted on September 3, 2014 before the Trial

Court without the jury. TR.3: 33-68. The State alleged that Appellant was subject

to statutory punishment enhancements because of two prior convictions alleged in

the indictment. TR.3: 33-34. Appellant pleaded not true to the allegation of a May

13, 2002 first degree felony conviction under cause number 2002CRS60 from the

49th District Court of Webb County, Texas for aggravated sexual assault. Id. 33.


                                        4
Appellant then pleaded not true to the allegation of a June 4, 2009 state jail felony

conviction under cause number 2009-CRM-000050-D3 from the 341st District

Court of Webb County, Texas for aggravated assault with a deadly weapon. Id.

33-34.

      The State offered testimony, exhibits 6-8, and argument in support of

enhancement for the offense based on the evidence presented of prior felony

convictions. Specifically, the State requested enhancement from a third degree

felony for evading arrest to punishment for a habitual offender ranging from a

minimum of 25 years to 99 years or life. TR.3: 60-63. Appellant argued that the

evidence for the enhancement was not properly authenticated, and was thus not

proof beyond a reasonable doubt for either conviction. Id. 63-65.

      Finding that Appellant was guilty of evading arrest or detention with a motor

vehicle and that the two enhancements were true, the trial court found that

Appellant was a habitual felony offender in Texas, and imposed a sentence of

thirty-eight (38) years imprisonment. Id.

      On September 24, 2014, Appellant filed a notice of appeal, and a motion for

new trial and arrest of judgment. CR.1: 118-21, 129. On October 9, 2014, the trial

court entered judgment. On December 8, 2014, the motion for new trial was

denied by operation of law. TEX. R. APP. 21.8.




                                            5
                               STATEMENT OF FACTS

     I.       SUMMARY OF TESTIMONY AND EXHIBITS PRESENTED
              DURING THE GUILT/INNOCENCE PHASE OF TRIAL.
      The State’s evidence consists of testimony from the following witnesses and

the admission of the following exhibits:

                                        Testimony

State’s Witnesses                            Summary of Testimony

Jacir Heil,               •   Mr. Heil authenticated State’s Exhibits 1, 2, 3, and 4,

Appellant’s attorney          which     comprised        Appellant’s    plea   agreement,

in Federal Cause No.          stipulation,         findings   and   recommendations   and

2:13-CR-00707-1               judgment in Appellant’s federal criminal case for

from the Southern             transporting aliens (8 U.S.C. § 1324) – charges that

District   of   Texas,        arose from the same incident that was the subject of the

Corpus          Christi       evading trial.         In the plea agreement, Appellant

Division                      stipulated he was driving the vehicle. Mr. Heil testified

                              while Appellant signed the stipulations, he may not have

                              paid a lot of attention to the contents, and based on his

                              experience in other cases, was signing the stipulations in

                              order to avoid further charges for obstruction of justice,

                              and also to gain a reduction in sentence for acceptance



                                               6
                         of responsibility. TR.2: 75, 83-86.

Alberto Carrion,      • Officer Carrion testified that he was employed by the

Three Rivers Police      Three Rivers Police Department on July 19, 2013, and

Department Officer.      that in the course of his duties he attempted to pull over

TR.2: 90-114             a green van that was speeding on northbound Highway

                         281 in the City of Three Rivers. TR.2: 90-91.

                      • Officer Carrion testified that he attempted to pull over

                         the van, and the driver took off, leading him on a car

                         chase for a few blocks before coming to a crash stop.

                         TR.2: 92-93.

                      • Officer Carrion testified that the van’s driver jumped out

                         of the van while it was still moving. After the van came

                         to stop due to a crash with a parked vehicle, the

                         occupants jumped out or attempted to jump out and ran

                         from him. TR.2: 93.

                      • Officer Carrion stayed with the van, and other officers

                         pursued the van’s occupants on foot. One of the persons

                         apprehended on foot by another officer was identified as

                         Appellant. TR.2: 95-96, 101.




                                        7
• Officer Carrion authenticated the recording made by the

  dashcam in his police vehicle, admitted as State’s

  Exhibit 5. TR.2: 96-98.

• On cross-examination Officer Carrion admitted that his

  incident report indicates that the driver of the van was

  wearing a white shirt and white shorts, and that he

  observed the driver flee from the driver’s side of the

  van, and two others flee from the passenger’s side of the

  van. TR.2: 101-102.

• Officer Carrion testified that in his conversation with

  dispatch, the driver was described as a person wearing a

  maroon shirt, but that he is not sure whether he or if

  dispatch said it. TR.2: 104-105. He later testified that

  Officer Medrano described the driver as wearing a

  maroon shirt. Id. 112.

• Officer Carrion admitted on cross-examination that he

  was not sure that all of the occupants of the vehicle had

  been arrested, and that he had not personally arrested

  Appellant. TR.2: 110-111.




                8
Noah Leuchner,       • Corporal Leuchner testified that while responding to the

Corporal, Three         vehicle pursuit call on July 19, 2013, he came into

Rivers Police           contact with Appellant. TR.2: 114. Corporal Leuchner

Department              encountered him in the brush along the fence line behind

TR.2: 114-120           a house. Id. 115. He testified that Appellant put his

                        hands up and surrendered to him. Id.

                     • On cross examination Corporal Leuchner testified that

                        he did not observe anyone exit from the driver’s side of

                        the vehicle because it was not possible to leave from the

                        driver’s side because it was stuck, but later confirmed

                        that the video showed one person leaving on the left side

                        of the vehicle. TR.2: 117. Corporal Leuchner testified

                        that when he arrested Appellant, he was wearing a white

                        shirt and red shorts. Id.

Roberto Gutierrez,   • Agent Gutierrez testified that he responded to the July

Agent, U.S. Border      19, 2013 incident. TR.2: 121. He confirmed that he

Patrol                  arrested Appellant for alien smuggling, resulting in an

TR.2: 120-127           indictment in Federal Cause No. 2:13-CR-707-1. TR.2:

                        123




                                       9
Rey Medrano,            • Officer Medrano testified that he worked as a Three

Former Three Rivers       Rivers police officer on July 19, 2013 and responded to

Police    Department      the incident. TR.2: 127.

Officer                 • Officer Medrano testified that he received a description

TR.2: 127-130             of the driver of the van as a person wearing a maroon

                          shirt. TR.2: 127.

                        • Officer Medrano testified that he received this

                          description of the driver from Appellant during

                          questioning. TR.2: 128.

                        • On cross-examination, Officer Medrano testified that he

                          saw several individuals exit the van, and stated that it

                          could have been more than three. TR.2: 129



The following exhibits were admitted during the guilt/innocence phase of trial:

                                     Exhibits

Exhibit   Description                                     Record Citation

No.                                                       Offered      Admitted

1         Memorandum of Plea Agreement in Cause TR.2: 80               TR.2: 80

          No. 2:13-CR-00707-001, from the U.S.




                                        10
           District Court for the Southern District of

           Texas, Corpus Christi Division.

2          Stipulation of facts in Cause No. 2:13-CR- TR.2: 80        TR.2:   80,

           00707-001, bearing Appellant’s signature.                  82

3          Findings and Recommendations in Cause TR.2: 80             TR.2: 81

           No. 2:13-CR-00707-001, with paragraph 9

           redacted by the Trial Court.

4          Judgment in Cause No. 2:13-CR-00707-001       TR.2: 80     TR.2: 80

5          Video of the traffic stop                     TR.2: 98     TR.2: 98



      Appellant presented one exhibit during the guilt/innocence phase:

                       Appellant’s (Defense) Trial Exhibits

Description                                              Record Citation

                                                         Offered      Admitted

Proposed Charge of the Court containing a jury TR.3: 11               TR.3: 11

instruction on the lesser included offense of evading

arrest without the use of a vehicle.




                                          11
    II.    THE TRIAL COURT REFUSED TO ACCEPT AN AGREED
           JURY CHARGE CONTAINING AN INSTRUCTION ON THE
           LESSER INCLUDED OFFENSE OF EVADING ON FOOT
           UNDER TEX. PEN. CODE § 38.04 (B)(1).
      During the charging conference, Appellant’s attorney and the State’s

attorney presented two jury charges for the trial court’s consideration: one that

included an instruction on the lesser included offense of evading on foot, and one

that did not. TR.3: 8. Both Appellant’s attorney and the State’s Attorney agreed

that the jury charge should include the instruction of the lesser included offense of

evading on foot. Id. 8-9.

      After a brief bench conference, Appellant’s attorney argued for inclusion of

evading on foot as a lesser included offense of evading with a motor vehicle,

relying on Powell v. State, 206 S.W.3d 142 (Tex.App.--Waco 2007, pet. ref’d).

TR.3: 9. The trial court also reviewed an unpublished decision from this Court,

Lara v. State, No. 13-04-282-CR, 2007 WL 431241 (Tex. App.—Corpus Christi,

Edinburg, Feb. 8, 2007, no pet.) for the same proposition. Id.

      The trial court ruled that under Hobbs v. State, 175 S.W.3d 777

(Tex.Crim.App. 2005) and “the facts as they have been presented in this court,”

that the complained of acts are one continuous course of conduct, “with only the

means of locomotion changing.” TR.3: 10. The trial court refused to include a

charge of evading arrest under Texas Penal Code § 38.04 (a) as a lesser included



                                         12
offense of the charge from the indictment of evading arrest using a vehicle under

Texas Penal Code § 38.04 (b). Id.

      Appellant’s counsel argued that a jury could reasonably conclude that

Appellant was not the driver of the vehicle, and that it should be a question for the

jury to decide. TR.3: 10. Appellant’s counsel further argued that the standard for

including a lesser included offense found in Article 37.09 of the Code of Criminal

Procedure is “anything more than a scintilla of evidence,” pursuant to Sweed v.

State, 351 S.W. 3d 63 (Tex.Crim.App. 2011). Id. at 10-11. The fact question

about the number of people fleeing from the motor vehicle, argued Appellant, was

sufficient to prove that at least two people who ran from the van were only guilty

of evading on foot. Id. 11.

      Appellant’s counsel made an offer of proof of the proposed jury charge

containing the lesser included offense instruction, which was accepted into the

record as Defense Exhibit 1. Id. 11; TR.4: 56-61. The Court rejected the proposed

jury charge. TR.4: 61. The Court instructed the jury based on the charge that did

not include the lesser included offense instruction. TR.3: 13; CR.1: 113-116. The

verdict form included one finding, that Appellant was guilty of the offense of

evading arrest with a vehicle as alleged in the indictment. TR.3: 13; CR.1: 117.




                                         13
    III.   SUMMARY OF THE EVIDENCE AND THE TRIAL COURT’S
           FINDINGS DURING THE PUNISHMENT PHASE.
      The State offered the following testimony and documentary evidence during

the punishment phase:

                                     Testimony

State’s Witnesses       Summary of testimony

Dan Caddell,            Offered testimony to authenticate State’s exhibits during

Investigator,           punishment phase.

Live Oak County

Sheriff’s Office

TR.3: 35-60



                                     Exhibits

Description                                            Record Citation

                                                       Offered       Admitted

6               Fingerprint Card for Appellant dated TR.3: 38        TR.3: 47

                September 3, 2014.

7               Judgment in Cause No. 2002CRS60 TR.3: 38             TR.3: 47

                from the 49th District Court of Webb

                County, Texas.



                                        14
8            Judgment in Cause No. 2009-CRM- TR.3: 38                 TR.3: 47

             000050-D3 from the 341st District

             Court of Webb County, Texas.

9            Indictment in Cause No. 2001-CRS- TR.3: 45               Not

             000633-D1                                                admitted

9A           Certificates                              TR.3: 49       withdrawn



      The jury found by unanimous verdict that Appellant was guilty of the

offense of evading arrest with a vehicle as alleged in the indictment. TR.3: 31.

Appellant elected to have the court, rather than the jury, determine punishment.

TR.3: 33. During the punishment phase the Court heard evidence on the

punishment enhancements included in the indictment, namely that Appellant had

been convicted of two felonies: 1) a 2002 aggravated sexual assault conviction

from Webb County, Texas; and 2) a 2009 aggravated assault with a deadly weapon

conviction from Webb County, Texas. CR.1: 6-7; TR.3: 33. Appellant pleaded

that neither conviction was true. TR.3: 33-34.

      The State presented certified copies of the two convictions, which were

accepted into the record together with a fingerprint card over Appellant’s

objections as State’s Exhibits 6, 7, and 8. TR.3: 47; TR.4: 31-55. Appellant

objected to the exhibits on the ground that the proper predicate for accepting them


                                        15
into the record had not been laid by the State’s witness, that the purportedly self-

authenticating certified records were not properly linked to the Appellant, and that

the evidence was not produced to her during discovery. TR.3: 41-43, 46. The trial

court overruled each of Appellant’s objections. TR.3: 46-7.

      The record of the 2002 aggravated sexual assault conviction under cause

number 2002CRS60 from the 49th District Court of Webb County indicates that

Appellant pleaded guilty to a first degree felony for an offense committed on July

11, 2001, with no findings of enhancement or findings on the use of a deadly

weapon, and that he was sentenced on May 6, 2002 to five years of imprisonment.

TR.4: 35-38. A judgment in cause number 2001CRS633 from the 49th District

Court of Webb County indicates that Appellant pleaded guilty to a first degree

felony for an offense committed on April 1, 2001, with no findings of enhancement

or findings on the use of a deadly weapon, and that he was sentenced on May 6,

2002 to five years of imprisonment. TR.4: 39-42. The judgment also indicated

that the two sentences from both cases were to run concurrently. Id. 39.

      Exhibit 8 contained a fingerprint card and several other judgments. TR.4:

45-55. The 2009 judgment for aggravated assault with a deadly weapon in cause

number 2009-CRM-000050-D3 from the 341st District Court of Webb County,

indicates that the offense occurred on January 23, 2008, that Appellant pleaded

guilty to violating Texas Penal Code § 22.02 (a)(2), a state jail felony, for which he


                                         16
was sentenced to four years imprisonment. TR.4: 49. The judgment does not

indicate that any deadly weapons findings were made, nor that there were any

enhancements, and sets June 4, 2009 as the date of sentence. Id.

      The other judgments in Exhibit 8 were a 2007 judgment for possession of

cocaine from the 214th District Court of Nueces County, and a 2009 judgment for

failing to register as a sex offender from the 406th District Court of Webb County.

TR.4: 47-48, 51-53.

      At the conclusion of the presentation of evidence during the sentencing

phase, the State urged the Trial Court to find that the two enhancement paragraphs

from the indictment, referencing the 2002 sexual assault conviction, and the 2009

aggravated assault conviction, were true based on the evidence accepted into the

record. TR.3: 61-62. The State concluded that these two convictions triggered the

habitual felony offender penalty. Id. 61.

      Appellant argued to the trial court that the evidence presented did not

provide sufficient evidence for the trier of fact to find beyond a reasonable doubt

that each conviction is linked to him. TR.3: 63. Appellant specifically objected to

the evidence that he was convicted of aggravated sexual assault. Id.

      The trial court found that the evidence proved that both paragraphs relating

to enhancement in the indictment were true. TR.3: 67. The trial court found that




                                            17
Appellant is a habitual offender, and imposed a thirty-eight (38) year prison

sentence and a fine of $5,000. Id.



                         SUMMARY OF ARGUMENT
      Appellant argues that the trial court committed several errors in the course of

his trial that caused him material harm.

      The first point of error was the trial court’s refusal to include a jury

instruction on the charge for the lesser included offense of evading arrest on foot

under Texas Penal Code § 38.04 (a). The trial court’s error in refusing to include

an instruction on a lesser included offense in the jury charge, resulted in a

conviction of a third degree felony, exposing Mr. Sanchez to a finding during

sentencing that he is a habitual felon subject to the mandatory minimum

enhancement found at Texas Penal Code § 12.42 (d) requiring a mandatory

punishment of twenty-five (25) years. Absent this error, Mr. Sanchez might have

been convicted of a Class A misdemeanor and would not have been subject to the

mandatory minimum of twenty five years imprisonment mandated by TEX. PEN.

CODE § 12.42 (d). Appellant was materially harmed by the trial court’s error,

meriting reversal.

      Appellant’s second point of error is the trial court’s admission of privileged

statements from J. Heil, Appellant’s attorney in the related federal case arising out


                                           18
of the same conduct. Appellant argues that but for the trial court’s erroneous

admission of his attorney’s testimony over his objections, there would be no direct

evidence in the record that indicates that he was the driver of the vehicle. Absent

this evidence, there is insufficient evidence to support a conviction for evading

using a vehicle. The trial court’s error caused Appellant material harm, meriting

reversal.

      Appellant’s third point of error is the trial court’s reliance on a state jail

felony as a predicate offense for the habitual felon enhancement from TEX. PEN.

CODE § 12.42 (d). Appellant argues that his 2009 judgment for Aggravated

Assault indicates that he committed a state jail felony punishable under Texas

Penal Code § 12.35 (a), which cannot be used as a predicate offense for the

habitual offender enhancement. Because the trial court illegally relied on a state

jail felony for the purposes of enhancement under TEX. PEN. CODE § 12.42 (d),

his sentence is illegal and void ab initio. Appellant’s sentence should be vacated

and his case remanded for re-sentencing.

      Appellant asserts in his final point of error that the trial court erred by

sentencing him to a third degree felony for the offense of evading using a vehicle.

Appellant argues that offense classification of evading using a vehicle found at

Texas Penal Code § 38.04 is ambiguous on its face, meriting the application of the

rule of lenity in his favor, requiring the court to punish his conduct as a state jail


                                         19
felony rather than a third degree felony.      Because the trial court sentenced

Appellant using the harsher penalty of ambiguous statute, his sentence is illegal

and void ab initio. Appellant’s sentence should be vacated and his case remanded

for re-sentencing.

      The Court should vacate Mr. Sanchez’s conviction and remand the case for a

new trial. Alternatively, the Court should vacate Mr. Sanchez’s sentence and

remand the case for re-sentencing.



                           STANDARD OF REVIEW
      A trial court’s ruling on a jury charge is reviewed for both reversible and

fundamental error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).

The first step is to determine whether there was an error in the charge. Abdnor v.

State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994).            If the charge was

erroneous, then it must be determined whether sufficient harm resulted from the

error. Id. at 732. The degree of harm varies based on whether the complained of

error was preserved by a timely objection at trial. Id. at 731-32. Where an error is

properly preserved, the reviewing court can reverse a conviction upon a showing of

“some harm,” which mandates reversal in the absence of harmless error. Almanza,

686 S.W.2d at 171 (holding that reversal is required if the complained of error was

“calculated to injure the rights of the defendant”). The record must show actual


                                        20
and not merely theoretical harm.       Warner v. State, 245 S.W.3d 458, 461-62

(Tex.Crim.App. 2008).

      In order to preserve jury charge error, a party must raise the objection to the

trial court on the record and have the objections noted by court reporter in the

presence of the court and the state’s counsel, before the reading of the court’s

charge to the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (West). Appellant

timely objected to the trial court’s refusal to include an instruction on the lesser

included offense in the jury charge on the record, in the presence of the trial court

and state’s counsel, and made an offer of proof of the jury charge with the

requested instruction prior to the reading of the court’s charge to the jury. TR.3: 8-

11; TR.4: 56-61. The proper standard of reviewing the jury charge error in this

case is the showing of “some harm” to Appellant. Almanza, 686 S.W.2d at 171.

      An error relating to an assertion of privilege is reviewed under an abuse of

discretion standard. Kos v. State, 15 S.W.3d. 633 (Tex.App.--Dallas 2000, no

pet.)(citing Carmona v. State, 947 S.W.2d 661, 664 (Tex.App.—Austin 1997, no

pet.). A trial court’s determination is reversed only “when the trial court applied

an erroneous legal standard, or when no reasonable view of the record could

support the trial court’s conclusion under the correct law and the facts viewed in

the light most favorable to its legal conclusion.” Id. (internal citations omitted). A

reversible error regarding attorney-client privilege is subject to the harmless error


                                         21
standard from Texas Rule of Appellate Procedure 44.2 (b). Sanford v. State, 21

S.W.3d 337, 345 (Tex. App. 2000) abrogated by Motilla v. State, 78 S.W.3d 352

(Tex. Crim. App. 2002).

      A “void” or “illegal” sentence is one that is not authorized by law. Ex parte

Pena, 71 S.W.3d 336, 336 n. 2 (Tex.Crim.App.2002); see Ex parte Harris, 495

S.W.2d 231, 232 (Tex.Crim.App. 1973); see Mizell v. State, 119 S.W.3d 804, 806

(Tex.Crim.App.2003) (“A sentence that is outside the maximum or minimum

range of punishment is unauthorized by law and therefore illegal.”); Ex parte Beck,

922 S.W.2d 181, 182 (Tex.Crim.App.1996) (per curiam) (sentence of twenty-five

years of imprisonment for offense for which maximum range of punishment was

two years of imprisonment was illegal). “A sentence unauthorized by law is

fundamental error, rendering the sentence void.” Harvill v. State, 13 S.W.3d 478,

482 (Tex.App.-Corpus Christi 2000, no pet.) (citing Ex parte Hill, 528 S.W.2d

125, 126 (Tex.Crim.App.1975) (sentence was void where trial court imposed five

year sentence and maximum authorized punishment was four years).

                                  ARGUMENT

    I.     THE TRIAL COURT ERRED BY REFUSING TO INCLUDE AN
           INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF
           EVADING ARREST ON FOOT IN THE JURY CHARGE.
      Whether a lesser included offense instruction must be given requires a two-

step analysis. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex.Crim.App. 2011) (citing


                                        22
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Royster v.

State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) (plurality op. on reh'g)). The

first step requires the reviewing court to determine whether the lesser included

offense is included within the proof necessary to establish the offense as charged.

Id. (internal citations omitted). The second step requires a determination whether

there is “some evidence from which a rational jury could acquit the defendant of

the greater offense while convicting him of the lesser-included offense.”         Id.

(internal citations omitted).


             A.     Evading arrest on foot is a lesser included offense of
                    evading arrest using a vehicle.
                    1.      A comparison of the elements of the two offenses results
                            in a finding that evading arrest on foot under TEX. PEN.
                            CODE § 38.04 (a) is a lesser included offense of evading
                            arrest using a vehicle under TEX. PEN. CODE
                            §38.04(b).

      An offense is considered to be a lesser in included offense if:

1.    it is established by proof of the same or less than all the facts required to

establish the commission of the offense charged;

2.    it differs from the offense charged only in the respect that a less serious

injury or risk of injury to the same person, property, or public interest suffices to

establish its commission;

3.    it differs from the offense charged only in the respect that a less culpable

mental state suffices to establish its commission; or
                                          23
4.    it consists of an attempt to commit the offense charged or an otherwise

included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West). A determination of whether an

offense is a lesser included offense is decided on a case-by-case basis. Jacob v.

State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995).          The Court of Criminal

Appeals set forth a test for comparing the elements of the two offenses, examining:

1.    The elements of the offense charged;

2.    The statutory elements of the offense claimed to be the lesser included

offense;

3.    The proof presented at trial to show the elements of the charged offense.

Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005); Jacob, 892 S.W.2d

at 907-08.

      Below is a comparison of the elements of the two offenses from TEX. PEN.

CODE § 38.04, together with the proof presented at trial to show the elements of

the charged offense. See also Infante v. State, 397 S.W.3d 731, 734 (Tex.App.—

San Antonio 2013, no pet.).

Elements of Offense           Elements of Lesser        Proof presented at trial

Charged [TEX. PEN.            Included Offense          to prove the element of

CODE § 38.04 (b)]             [TEX. PEN. CODE §         the charged offense.

                              38.04 (a)]


                                           24
1. intentional              1. intentional           Testimony of arresting

                                                     officers, stipulation signed

                                                     in federal court that

                                                     referenced declarations

                                                     made by vehicle occupants

                                                     outside of court.

2. flight;                  2. flight;               Testimony of arresting

                                                     officers, stipulation signed

                                                     in federal court that

                                                     referenced declarations

                                                     made by vehicle occupants

                                                     outside of court.

3. from a person            3. from a person         Testimony of arresting

                                                     officers, stipulation signed

                                                     in federal court that

                                                     referenced declarations

                                                     made by vehicle occupants

                                                     outside of court.

4. the defendant knows is   4. the defendant knows   Testimony of arresting




                                         25
peace officer or a federal   is peace officer or a       officers, stipulation signed

special investigator;        federal special             in federal court that

                             investigator;               referenced declarations

                                                         made by vehicle occupants

                                                         outside of court.

5. who is attempting to      5. who is attempting to     Testimony of arresting

lawfully arrest or detain    lawfully arrest or detain   officers.

him.                         him.                        Stipulation signed in

                                                         federal court that

                                                         referenced declarations

                                                         made by vehicle occupants

                                                         outside of court.

6. using a vehicle           N/A                         Plea of guilty in Federal

                                                         Court Case to offense that

                                                         had “transporting” as an

                                                         element of the offense.

                                                         Stipulation     signed     in

                                                         federal       court       that

                                                         referenced      declarations

                                                         made by vehicle occupants

                                         26
                                                          outside of court.



      It is clear that an offense under § 38.04 (a) can meet the requirements of

article 37.09, section 1, because an offense for evading on foot can be established

by relying on proof of less than all the facts required to establish a commission of

the charged offense of evading using a vehicle -- i.e., all of the elements except the

vehicle.

      Additionally, it is clear that evading under § 38.04 (a) is distinct from §

38.04 (b) only in the less serious risk of injury to the public interest suffices to

establish its commission. Tex. Code Crim. Proc. art. 37.09 (West). The public

interest protected by § 38.04 is the evasion of an arrest or detention, and it is

designed “to encourage suspects to yield to a police show of authority.”

Farrakhan v. State, 263 S.W.3d 124, 143 (Tex.App.—Houston [1st Dist.] 2006)

aff'd, 247 S.W.3d 720 (Tex.Crim.App. 2008). The risk of injury to the public

interest is greater when an offender uses a vehicle, because it increases the

likelihood of evasion.

      The third section of article 37.09 does not apply here, as there is no

distinction between the culpable mental state necessary for commission of the

offense, only the means of commission. Likewise, article 37.09 section 4 is also

inapplicable because evasion on foot is not an attempt offense.


                                         27
      The trial court’s reliance on the Court of Criminal Appeal’s decision in

Hobbs v. State, 175 S.W.3d 777 (Tex.Crim.App. 2005) is misplaced. TR.3: 10.

The Court in Hobbs found that an offense of evading on foot and evading using a

vehicle could not be separated when the act giving rise to the offense commences

as an evasion with a vehicle and continues on foot after the car was abandoned.

Id., at 778-80. The Court concluded that the legislature did not intend for separate

offenses when different means of locomotion are used to commit the offense. Id.,

at 781. In other words, Hobbs stands for the proposition that Appellant could not

be found guilty of two separate offenses; the opinion does not address the situation

such as the one at bar where the evidence could support a finding that he evaded by

foot or using a vehicle. This was a factual finding that the jury was entitled to

make in the first instance. As demonstrated in the table comparing the evidence

necessary to convict Appellant of either offense, if the jury found that he was not

the driver of the vehicle and merely a passenger in the van, he could have been

convicted of evading on foot.




                                        28
                   2.     Other courts have found that evading arrest under TEX.
                          PEN. CODE § 38.04 (a) is a lesser included offense of
                          evading arrest using a vehicle under TEX. PEN. CODE
                          §38.04 (b).

      In a well-reasoned decision, the Waco court of appeals found that the

offense of evading on foot is a lesser included offense of evading arrest in a

vehicle. Powell v. State, 206 S.W.3d 142, 143 (Tex.App.—Waco 2007, pet. ref’d).

The court found that because the elements of evading on foot varied from the

elements of evading by vehicle only by omission of the element of the use of a

vehicle, evading on foot is “included within the proof necessary” to prove evading

by vehicle. Id.

      This Court concurred with the holding of Hobbs in an unpublished decision,

finding that evading on foot and evading with a vehicle are each separate offenses.

Lara v. State, No. 13-04-282-CR, 2007 WL 431241 at * 3.

      The Court should follow the reasoning of Hobbs and Lara, and find that

evading on foot is a lesser included offense of evading with a vehicle.




             B.    There is some evidence from which a rational jury could
                   acquit Appellant of the greater offense while convicting him
                   of the lesser-included offense.
      When evaluating the evidence in favor of a conviction for the lesser-

included offense for a finding that it is “a rational alternative to the charged

offense,” all of the evidence presented at trial may be reviewed. Sweed, 351 S.W.
                                         29
3d at 68 (internal citations omitted). Anything more than a “scintilla of evidence”

may be sufficient to entitle a defendant to the inclusion of a lesser charge. Hall v.

State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007).

      As demonstrated in the comparison of the two offenses, the only distinction

between the evidence necessary to convict Appellant on the charge of evading on

foot and evading using a vehicle, is the evidence that Appellant was the driver of

the vehicle on July 19, 2013. If there is scintilla of evidence that Appellant was

not the driver of the vehicle, and was only a passenger in the vehicle who fled on

foot once the van crashed, he is entitled to an instruction on evading on foot as a

lesser included offense.

      The Court of Appeals in Powell determined that no scintilla of evidence

existed to support an instruction on an evading on foot offense when the evidence

at trial was undisputed that the Defendant drove his car 250 feet after the officer

told him not to drive away, and then abandoned the car and continued his flight on

foot. Powell, 206 S.W.3d at 143. Because it was undisputed that the Defendant in

Powell drove his car away from the stop, he could not have been convicted of

evading on foot. See also Hobbs, 175 S.W.3d at 781.

      In the present case Appellant does not admit at any time that he was the

driver of the van. The testimony of Officer Carrion, the officer who initiated the

stop did not include a positive identification of the driver, only a positive


                                         30
identification of Appellant as a person who was arrested after having fled the

vehicle.   TR.2: 93, 95-96, 101.     Officer Carrion testified that the driver was

wearing a white shirt, and that the dispatch conversation mentioned that the driver

was wearing a maroon shirt. TR.2: 112. Officer Carrion testified that it was

possible that not all of the occupants of the van had been arrested. TR.2: 110-111.

      Corporal Leuchner, the officer that arrested Appellant, testified that he

encountered him hiding in the brush behind a house. TR.2: 114. He testified that

Appellant was wearing a white shirt and red shorts when arrested. Id. at 117.

      Officer Rey Medrano testified that he saw several individuals exit the van

during the crash, and that it could have been more than three. TR.2: 129. He

stated that he was told that the van’s driver was wearing a maroon shirt. Id. 127.

      Appellant’s attorney in the federal alien smuggling case that arose out of the

same incident, testified that although his client signed the stipulation and plea

agreement, he was not convinced that Appellant was aware of the contents of the

statements. TR.2: 75. He testified that in his experience criminal defendants are

unwilling to challenge facts contained in plea stipulations even if they are not true

because they hope to gain a reduction in offense levels at sentencing. Id.

      The admission in the plea colloquy was part of the magistrate’s findings and

recommendations and not due to an admission by the Appellant of driving the

vehicle. TR.2: 89. The statements attached to the stipulation were self-serving out


                                         31
of court statements that Appellant could not challenge on cross-examination, which

was the basis for Appellant’s objection to the admission of State’s Exhibit 2 at trial

which was overruled. TR.2: 80-81.

      In this case there is more than a scintilla of evidence meriting an instruction

on a lesser included offense of evading on foot. A review of the evidence reveals

that some of the evidence refutes or negates other evidence establishing the greater

offense. See Sweed, 351 S.W.3d at 68. There is some dispute as to what the driver

of the van was wearing. There is consensus by the arresting officers that one of the

occupants of the van may have escaped.         The Court should not consider the

credibility of the evidence and whether it conflicts with other evidence or is

controverted, only that there is some room for the trier of fact to interpret the

evidence differently. Goad v. State, 354 S.W.3d 443, 447 (Tex.Crim.App. 2011).

In this case, Appellant is able to demonstrate that reasonable minds could have

found that he was not the driver based on the evidence presented at trial, meriting

an instruction for evading on foot as a lesser included offense.


    II.    THE TRIAL COURT’S ERROR OF REFUSING TO INCLUDE
           AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE IN
           THE JURY CHARGE WAS NOT HARMLESS.
      Appellant need only show “some harm” because he properly preserved the

error at trial. Abdnor, 871 S.W.2d at 731-32; Tex. Code Crim. Proc. Ann. art.

36.14 (West). Without the option of a lesser included offense, Appellant could

                                         32
only be convicted of evading using a vehicle, a felony offense rather than a Class

A Misdemeanor. The felony conviction for evading using a vehicle resulted in a

finding that Appellant is a habitual felon subject to the mandatory minimum

enhancements found at TEX. PEN. CODE § 12.42(d) requiring a mandatory

punishment of twenty-five (25) years. TR.3: 67. Absent this error, Appellant

would not have been subject to the mandatory minimum of twenty five years

imprisonment mandated by TEX. PEN. CODE § 12.42 (d).

      The exposure to greater liability at sentencing materially harmed Appellant

as he would only have been subject to a maximum of one year in jail and a $4,000

fine for violation of a Class A misdemeanor. TEX. PEN. CODE § 12.21.


    III.   THE TRIAL COURT ERRED BY ALLOWING APPELLANT’S
           ATTORNEY TO TESTIFY REGARDING FACTS THAT CAME
           TO HIS KNOWLEDGE THROUGH THE ATTORNEY-CLIENT
           RELATIONSHIP PURSUANT TO TEX. R. EVID. 503 (B)(2).

             A.    The trial court erred by admitting the privileged statements
                   of Appellant’s criminal defense attorney for the related
                   federal case into evidence.
      The only direct evidence that Appellant was driving a vehicle, the key

element of the offense came from his own attorney, J. Heil. TR.2: 74-86. Mr. Heil

represented Appellant in his federal case for alien smuggling. Id. 77-78. Before

Mr. Heil testified, Appellant's attorney invoked the attorney-client privilege on his

behalf. Id. 56-57; Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App.


                                         33
1997)(holding that the power to waive the attorney-client privilege belongs to the

client, or his attorney or agent both acting with the client's authority). The trial

court ruled that the privilege did not apply to matters stated in "open court" and

overruled the objection. TR.2: 57.

      Texas Rule of Evidence 503 governs the attorney-client privilege. In re

Small, 346 S.W.3d 657, 663 (Tex. App. 2009)(stating that the attorney-client

privilege protects confidential communications between client and counsel made

for the purpose of facilitating the rendition of legal services from disclosure). The

general rule protects "communications" between attorney and client, but there is a

broader privilege that applies in criminal cases. TEX. R. EVID. 503(b)(1). In

criminal cases, the client may invoke the privilege to prevent his attorney from

testifying as to "any other fact which came to the knowledge of the lawyer . . . by

reason of the attorney-client relationship." TEX. R. EVID. 503(b)(2) (emphasis

added). The burden of establishing the privilege is on the party asserting it. Strong

v. State, 773 S.W.2d 543, 552 (Tex. Crim. App. 1989).


             B.    The trial court’s error in admitting privileged
                   communications was not harmless.
      Mr. Heil's only source of knowledge about the stipulation that Appellant

signed came by reason of the attorney-client relationship.        Appellant had an

absolute privilege to prevent Mr. Heil from testifying regarding those facts, a


                                         34
privilege he invoked. TR.2: 57; Ates v. State, 21 S.W.3d 384, 393 (Tex. App.

2000)(finding that discussions regarding plea bargains are confidential

communications protected by the attorney-client privilege and may not be

disclosed without the client's permission).    Had the trial court excluded that

evidence, there would have been no admission in evidence that Appellant drove the

vehicle and the jury would have been left with only the conflicting accounts of the

two officers, neither of whom identified him as the driver. TR.2: 101-102, 104-

105, 112, 117, 127.

      Accordingly, the trial court's ruling was not only an abuse of discretion, it

resulted in harmful error. Sanford v. State, 21 S.W.3d at 347; but see Kay v. State,

340 S.W.3d 470, 474-75 (Tex. App.--Texarkana 2011, no pet.) (holding that trial

court did not error in allowing attorney to testify about observations made by him

while in the courtroom because any other person could testify about them).


    IV.    THE TRIAL COURT ERRED BY USING A STATE JAIL
           FELONY CONVICTION AS A PREDICATE OFFENSE FOR A
           HABITUAL OFFENDER ENHANCEMENT UNDER TEX. PEN.
           CODE § 12.42 (D).

            A.     A habitual felony enhancement cannot rely on a prior
                   conviction for a state jail felony as a predicate offense.
      The habitual offender enhancement is triggered by a finding that a defendant

has “been finally convicted of two felony offenses,” the second having occurred

subsequent to the finality of the first. TEX. PEN. CODE § 12.42 (d). The Penal

                                        35
Code explicitly bars consideration of a “state jail felony punishable under Section

12.35 (a) [of the Penal Code]” for enhancement purposes. Id.

      Pursuant to TEX. PEN. CODE § 12.35 (a), a state jail felony “shall be

punished by confinement in a state jail for any term of not more than two years or

less than 180 days.” Under §12.35 (c), a state jail felony is punished as a third

degree felony upon a finding that either a deadly weapon was used or exhibited

during the commission of the offense, or the defendant has of a prior conviction of

any felony under TEX. PEN. CODE § 20A.03 or § 21.02 or listed in Section

3g(a)(1), Article 42.12, Code of Criminal Procedure. TEX. PEN. CODE ANN. §

12.35 (West). A state jail felony under § 12.35 can also be enhanced to second

degree felony punishment under TEX. PEN. CODE ANN. § 12.425, upon a

showing of a two previous qualifying felony convictions. TEX. PEN. CODE ANN.

§ 12.425 (West).

      Whether a state jail felony is enhanced pursuant to § 12.35 (c) or § 12.425 is

a relevant distinction for an enhanced state jail felony to be subject to the habitual

offender enhancement. State v. Webb, 980 S.W.2d 924, 927 (Tex. App.—Fort

Worth 1998) aff'd 12 S.W.3d 808 (Tex.Crim.App. 2000) (citing Smith v. State, 960

S.W.2d 372 (Tex.App.—Houston [1st Dist.] 1998, pet ref’d); State v. White, 959

S.W.2d 375, 377 (Tex. App. 1998)). The Court of Criminal Appeals has found

that for sentencing enhancement purposes there are only two classifications of state


                                         36
jail felonies: those punishable under section 12.35 (a) and those punishable under

section 12.35 (c). State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App. 1996).

Thus, the key consideration for any predicate state jail felony used for

enhancement pursuant to TEX. PEN. CODE § 12.42 (d), is whether it was

enhanced based on § 12.35 (c).


            B.    The 2009 Aggravated Assault Conviction was for a state jail
                  felony punishable under TEX. PEN. CODE § 12.35 (a).
      The two prior convictions presented in the indictment and considered by the

Trial Court during sentencing were:

1)    A conviction for aggravated sexual assault from the 49th District Court of

      Webb County, Texas in Cause Number 2002CRS60 dated May 13th, 2002;

      and

2)    A conviction for aggravated assault with a deadly weapon in Cause Number

      2009-CRM-000050-D3 from the 341st District Court of Webb County,

      Texas dated June 4, 2009. CR.1: 6-7

      The aggravated assault conviction record indicates that Appellant pleaded

guilty to a violation of TEX. PEN. CODE § 22.02 (a)(2), a state jail felony, to

which he was sentenced to four years imprisonment. TR.4: 49-50. The judgment

notes no enhancement for a finding of use of a deadly weapon, nor is there an

indication that an enhancement was applied for any prior convictions. TR.4: 49.


                                       37
The judgment contained special findings including: a credit for 207 days toward

the total sentence and an order that the sentence run concurrently with a possession

of a controlled substance conviction from Nueces County.

      Because the judgment does not indicate any basis for an enhancement under

§ 12.35 (c), the fact that Appellant received punishment outside of the normal

range of punishment for a § 12.35 (a) state jail felony does not establish that his

conviction can be used as a predicate offense for § 12.42 (d) purposes. It is

possible that his 2009 sentence was enhanced under § 12.425 (or the previous

habitual state jail felony enhancement provision, § 12.42(a)(2)). The judgment

unequivocally states that he was convicted of a state jail felony and that no

enhancement was applicable for use of a deadly weapon, and that there were no

enhancements for prior convictions indicated in the indictment. TR.4: 49.

      What is certain is that absent a clear indication that Appellant’s 2009

sentence was an aggravated state jail felony under § 12.35 (c), his 2009 conviction

cannot serve as a predicate offense for an enhancement under § 12.42 (d). The

binding precedent of the Court of Criminal Appeals recognizes the importance of

the distinction between the method of enhancement of a state-jail felony for the

purposes of the habitual offender statute, and it is clear that only a state jail felony

enhanced under § 12.35 (c) meets the statutory requirement. White, 959 S.W.2d at

377; Mancuso, 919 S.W.2d at 88; Webb, 980 S.W.2d at 927.


                                          38
             C.     Appellant’s conviction was illegal because it exceeded the
                    range of punishment authorized by law.
      A conviction obtained using an improper enhancement is illegal if it is

outside the range of punishment authorized by law. Ex Parte Parrott, 396 S.W.3d

531 (Tex.Crim.App. 2013) (internal citations omitted); Wilkerson v. State, 927

S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

      A third degree felony may be enhanced to punishment for a second degree

felony upon a finding of a prior conviction for a qualifying felony pursuant to

TEX. PEN. CODE § 12.42 (a).                A second degree felony is punishable with

imprisonment of not less than two (2) years and not more than twenty (20) years.

TEX. PEN. CODE § 12.33 (a).

      The Court of Criminal Appeals has found that the operation of the habitual

offender enhancement statute found at TEX. PEN. CODE § 12.42 is mandatory,

and strips the trial court judge of discretion at sentencing once the predicate

offenses have been determined. State v. Allen, 865 S.W.2d 472, 474 (Tex. Crim.

App. 1993)(holding that the mandatory operation of Section 12.42(d) restricts the

discretion of the sentencing authority once the facts of two prior felonies are found

to be true). Under TEX. PEN. CODE § 12.42 (d), a person convicted of a felony

offense other than a state jail felony, who has been convicted of two previous

felonies (state jail felonies excluded), shall be imprisoned for a mandatory term of

at least twenty five (25) years to life.

                                              39
      Had Appellant been subjected to enhancement based solely upon the 2002

first degree felony, he would have been subject to a maximum of 20 years

imprisonment under §§ 12.42 (a) and 12.33. This is five years less than the

mandatory minimum to which he was subjected under § 12.42 (d) and eighteen

years less than his actual sentence.

      The enhanced sentence is illegal because it relies upon a state jail felony,

and is therefore not authorized by law. See Ex parte Harris, 495 S.W.2d at 232;

Mizell v. State, 119 S.W.3d at 806. Appellant’s illegal sentence is fundamental

error, voiding his sentence ab initio. Harvill v. State, 13 S.W.3d at 482; Ex Parte

Hill, 528 S.W.2d at 126. Because this error caused Appellant harm, his illegal

sentence must be vacated, and his case remanded for re-sentencing.




     V.    THE OFFENSE LEVEL FOR A VIOLATION OF EVADING
           WITH A VEHICLE IN VIOLATION OF TEX. PEN. CODE §
           38.04 (B) IS PROPERLY A STATE JAIL FELONY AND NOT A
           THIRD DEGREE FELONY.
             A.     Appellant was convicted of a third degree felony for evading
                    arrest using a vehicle absent any aggravating factors
                    involving serious injury to another or previous conviction
                    under Tex. Pen. Code § 38.04.
      Appellant was convicted under TEX. PEN. CODE § 38.04 (b)(2)(A), a third

degree felony. CR.1: 6-7, 130-134. The indictment alleges that Appellant used a



                                        40
vehicle to evade arrest, but not that anyone was hurt or that he had a prior

conviction under § 38.04.

      The date of Appellant’s the alleged offense is July 19, 2013, meaning that

the 2011 amendments to the statute were in effect at the time of his arrest. The

indictment was filed on March 6, 2014. CR.1: 6. The trial began on September 2,

2014. TR.2: 65. The trial court issued its sentence on September 3, 2014. TR.3:

67. During the time of the indictment, trial, and sentencing, the current version of

the statute was in effect.


             B.     The text of Texas Penal Code § 38.04 is ambiguous on its
                    face because the competing amendments from the 82nd
                    Legislature cannot be reconciled under the Texas Code
                    Construction Act.
      TEX. PEN. CODE § 38.04 has been amended several times during the past

five years, most significantly in 2011, when the legislature amended it three times

during the legislative session, resulting in two conflicting offense classifications

for evading arrest using a vehicle. Under the previous statute, re-enacted by Senate

Bill 496 (SB 496) and House Bill (HB 3423) 3423, evading with a vehicle is a state

jail felony, while under Senate Bill 1416 (SB 1416), evading with a vehicle is a

third degree felony. Adetomiwa v. State, 421 S.W.3d 922, 925-26 (Tex.App.

2014).




                                        41
       The legislative history of the 2011 amendments to TEX. PEN. CODE §

38.04 is murky, but it has been explained by other courts. Adetomiwa, 421 S.W.3d

at 925-26. The following table provides a side-by-side comparison 2:

Legislative       Bill Senate Bill 496, House Bill 3423, Senate Bill 1416,

from     the    82nd Act of May 23, Act of May 24, Act of May 27,

Legislature.             2011, 82nd Leg., 2011, 82nd Leg., 2011, 82nd Leg.,

                         R.S., ch. 391, § 1, R.S., ch. 839, § 4, R.S., ch. 920, § 3,

                         2011 Tex. Sess. 2011 Tex. Sess. 2011 Tex. Sess.

                         Law Serv. 1046, Law Serv. 2110, Law Serv. 2320,

                         1046 (West)              2111 (West)              2320–21 (West)

Date Enacted             May 23, 2011             May 24, 2011             May 27, 2011

Substantive              Adds      the    term Adds            “federal Changes               the

Amendments               “watercraft” to the special                       punishment

                         type                of investigator” to the scheme to enhance

                         transportation      an type of individual punishment                 for


2
   The Text of the Legislative Bills have been provided to the Court as an Appendix to this Brief.
The subsequent amendment to § 38.04 from the 83rd Legislature was achieved via S.B. 1093,
titled “Nonsubstantive Additions to and Corrections in Enacted Codes, to the Nonsubstantive
Codification or Disposition of Various Laws Omitted from Enacted Codes, and to Conforming
Codifications Enacted by the 82nd Legislature to Other Acts of that Legislature”. See 2013 Tex.
Sess. Law Serv. Ch. 161 (S.B. 1093) (Vernon’s). At Article 22, Section 22.001 (38) of S.B.
1093, the Senate directs that “Subdivision (2), Subsection (c), Section 38.04, Penal Code, as
added by Chapter 391 (S.B. 496), Acts of the 82nd Legislature, Regular Session, 2011, is
redesignated as Subdivision (3), Subsection (c), Section 38.04, Penal Code.” The amendment
did not affect the classification of the offense of evading using a vehicle. Id.

                                               42
                     actor may use “in a person may be evading using a

                     flight”. Id. at 926.    fleeing from for vehicle from state

                                             purposes   of   the jail felony to third

                                             offense. Id. at 926. degree      felony,

                                                                 regardless of prior

                                                                 conviction. Id. at

                                                                 926.



      Other appellate courts have attempted to reconcile the confusing

amendments to § 38.04 in an effort to determine whether evading with a vehicle

without a prior conviction is properly classified as a state jail felony or a third

degree felony. See Adetomiwa, 421 S.W.3d at 924-27; Mims v. State, 434 S.W.3d

265, 269-70 (Tex.App.—Houston [1st Dist.] 2014, no pet. h.)

      In Adetomiwa, the Fort Worth court applied the Code Construction Act,

found at Texas Government Code Chapter 311, to determine whether the statute is

ambiguous, and if not, whether the different amendments could be reconciled.

Adetomiwa, 421 S.W.3d at 926. The Fort Worth court concluded that under TEX.

GOV’T CODE § 311.025 (b), the amendments were not irreconcilable, because

each amendment made a change that the others did not, resulting in a consistent

reading of the statute where the punishment for evading with a vehicle is classified


                                            43
as a third degree felony. Id. The Adetomiwa court further found that even if the

provisions had been found to be irreconcilable, the amendment last enacted would

prevail under TEX. GOV’T. CODE § 311.025 (c). The Houston Appellate Court

found that amendments were irreconcilable, but adopted the same “last enacted”

reasoning as Adetomiwa. Mims v. State, 434 S.W.3d at 270.




             C.    The Court should not follow the decisions of the Houston
                   and Fort Worth courts of appeals, because the rule of lenity
                   dictates that an ambiguous statute should be interpreted in
                   favor of the Appellant.
      Despite the statutory arguments forwarded by the Fort Worth and Houston

Courts, this Court should decline to apply the third degree felony classification that

resulted from the ambiguity injected into the statutory language by the 82nd

legislature. The Court should instead rely on application of the rule of lenity to

interpret the facially ambiguous provisions of TEX. PEN. CODE § 38.04 in favor

of the Appellant, and allow him to be sentenced to a state jail felony for the offense

of evading with a vehicle.

      The Code Construction Act states in its general provisions that it is not the

exclusive source of rules for interpretation of statutes, but instead in meant to

“describe and clarify common situations in order to guide preparation and

construction of codes.” TEX. GOV’T CODE § 311.003.


                                         44
      The rule of lenity is a common law principle that proposes that when courts

“must choose between two reasonable readings of a statute to determine what

conduct the legislature intended to punish, courts apply the policy of lenity and

adopt the less harsh meaning.” Cuellar v. State, 70 S.W.3d 815, 821-22 (Tex.

Crim. App. 2002). The Court of Criminal Appeals recognized that Texas has long

adopted the rule of lenity, holding that:

      “[T]he doctrine is fundamental in English and American law that there
      can be no constructive offenses; that, before a man can be punished,
      his case must be plainly and unmistakably within the statute, and, if
      there be any fair doubt whether the statute embraces it, that doubt is
      to be resolved in favor of the accused.”

Cuellar, 70 S.W.3d at 822 (quoting Murray v. State, 21 Tex.App. 620, 633, 2 S.W.

757, 761 (1886) (emphasis in original)). While the Texas Penal Code is not to be

strictly construed, it “shall be construed according to the fair import of their terms,

to promote justice and effect the objectives of the code.” TEX. PEN. CODE §

1.05(a); Ex parte Forward, 258 S.W.3d 151, 154 (Tex. Crim. App. 2008).

      It is clear that the two different offense categories applied to evading with a

vehicle by SB 496, HB 3423, and SB 1416 are not reconcilable on their face.

While SB 496 and HB 3423 mandate that evading with a vehicle is a state jail

felony absent a prior conviction, SB 1416 classifies the offense as a third degree

felony for the first offense. The competing provisions are published in the official

reporter of Texas Statutes, adding to the confusion of the public who must receive


                                            45
fair notice of the penalties associated with the commission of a criminal act.

Crandon v. United States, 494 U.S. 152, 158, 110 S. Ct. 997, 1002, 108 L. Ed. 2d

132 (1990) (stating that the rule of lenity serves to ensure that there is fair warning

of the boundaries of criminal conduct). The fact that the statute currently publishes

both versions of the offense of evading with a vehicle undermines the conclusion

that the previous amendments were invalidated by the subsequent adoption of SB

1416.

        Moreover, the offense classification provisions from the three amendments

are not subject to differing interpretations of terms, but rather prescribe different

penalties for the exact same conduct. This type of conflicting construction can

only be resolved equitably relying on the principle that Appellant should be subject

to the lesser punishment.




              D.    Appellant’s voidable conviction of a third degree felony
                    instead of a state jail felony subjected him to the habitual
                    offender mandatory minimum sentencing enhancement.
        The finding that Appellant is a habitual felon subject to the mandatory

minimum enhancements found at TEX. PEN. CODE § 12.42 (d) required a third

degree felony conviction. CR.1: 130-34. If Appellant had been convicted under

the SB 496 and HB 3423 versions of § 38.04, he would have been convicted of a

state jail felony and not be subject to the mandatory habitual offender

                                          46
enhancements of TEX. PEN. CODE § 12.42 (d). The maximum punishment

available for a state jail felony with the enhancements found at TEX. PEN. CODE

§ 12.425 would have been twenty years, or the maximum punishment allowed for a

second degree felony pursuant to TEX. PEN. CODE § 12.33 (a). This is five years

less than the mandatory minimum to which he was subjected under § 12.42 (d) and

eighteen years less than his actual sentence.

      The enhanced sentence is illegal because it relies upon an ambiguous statute,

and is therefore not authorized by law. See Ex parte Harris, 495 S.W.2d at 232;

Mizell v. State, 119 S.W.3d at 806. Appellant’s illegal sentence is fundamental

error, voiding his sentence ab initio. Harvill v. State, 13 S.W.3d at 482; Ex Parte

Hill, 528 S.W.2d at 126. Because this error caused Appellant harm, his illegal

sentence must be vacated, and his case remanded for re-sentencing.




    VI.    CONCLUSION
      The trial court erred in refusing to include an instruction for a lesser included

offense of evading arrest on foot in the jury charge, which could have been

supported by the evidence presented at trial. Because the trial court’s error in

refusing to permit a instruction for a lesser included offense of evading on foot

resulted in material harm to Appellant, his sentence should be vacated, and he

should be granted a new trial.

                                         47
      The trial court further erred by allowing privileged testimony from

Appellant’s attorney in the related criminal case into evidence. Had the trial court

excluded this evidence, there would have been no direct evidence that Appellant

was the driver of the vehicle. The trial court’s error caused significant material

prejudice, meriting reversal.

      The trial court further erred by relying on a state jail felony conviction as a

predicate offense for a habitual offender enhancement under TEX. PEN. CODE §

12.42 (d). The trial court’s error caused Appellant material harm as it resulted in

an illegal mandatory minimum sentence in excess of the maximum penalty to

which he would have been otherwise subjected. His sentence should be vacated

and his case remanded for re-sentencing.

      The trial court finally erred by sentencing Appellant to a third-degree felony

for evading with a vehicle, when he was eligible for, at the maximum, a state jail

felony. The trial court’s error caused Appellant material harm as it resulted in an

illegal mandatory minimum sentence in excess of the maximum penalty to which

he would have been otherwise subjected. His sentence should be vacated and his

case remanded for re-sentencing.



                                    PRAYER




                                         48
      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

vacate the trial court’s judgment of guilt and grant him a new trial.         In the

alternative, Appellant prays that this Court vacate the trial court’s sentence and

remand his case for re-sentencing, or for such relief to which he may be entitled.

                                       Respectfully submitted,

                                       /s/ Abner Burnett
                                       Abner Burnett
                                       SBOT: 24065265
                                       Email: aburnett@trla.org

                                       /s/ Celestino A. Gallegos
                                       Celestino A. Gallegos
                                       Email: cgallegos@trla.org
                                       SBOT: 24040942

                                       Beeville Regional Public Defender
                                       331A North Washington
                                       Beeville, TX 78102
                                       Tel: (361) 358-1925
                                       Fax: (361) 358-5158
                                       Attorneys for Appellant




                                         49
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing brief was served
on the 156th Judicial District Attorney by e-filing notification on January 27, 2015.

                                        /s/ Celestino A. Gallegos
                                        Celestino A. Gallegos


                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief complies with the Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 9,210
words, including headers and footers.
                                        /s/ Celestino A. Gallegos
                                        Celestino A. Gallegos




                                          50
                  APPENDIX


LEGISLATIVE HISTORY OF TEXAS PENAL CODE § 38.04

          FROM THE 82ND LEGISLATURE




                      51
PUNISHMENT FOR THE OFFENSE OF EVADING..., 2011 Tex. Sess. Law...




                                    2011 Tex. Sess. Law Serv. Ch. 391 (S.B. 496) (VERNON'S)

                                          VERNON'S TEXAS SESSION LAW SERVICE 2011

                                            Eighty-Second Legislature, 2011 Regular Session

                                          Additions are indicated by Text; deletions by Text .
                                                    Vetoes are indicated by Text ;
                                                      stricken material by Text .

                                              CHAPTER 391
                                               S.B. No. 496
                       PUNISHMENT FOR THE OFFENSE OF EVADING ARREST OR DETENTION

                                                                AN ACT
                                relating to the punishment for the offense of evading arrest or detention.

                                         Be it enacted by the Legislature of the State of Texas:

SECTION 1. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as follows:

                                                       << TX PENAL § 38.04 >>

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

  (1) a state jail felony if:

        (A) the actor has been previously convicted under this section; or

        (B) the actor uses a vehicle or watercraft 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 or watercraft 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; or

  (3) a felony of the second degree if another suffers death 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.

(c) In this section:

  (1) “Vehicle”[, “vehicle” ] has the meaning assigned by Section 541.201, Transportation Code.

  (2) “Watercraft” has the meaning assigned by Section 49.01.


                                                   << Note: TX PENAL § 38.04 >>




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
PUNISHMENT FOR THE OFFENSE OF EVADING..., 2011 Tex. Sess. Law...




SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this
Act. An offense committed before the effective date of this Act is covered by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense occurred before that date.

SECTION 3. This Act takes effect September 1, 2011.

  Passed the Senate on April 13, 2011: Yeas 31, Nays 0; passed the House on May 23, 2011: Yeas 142, Nays 0, one present
  not voting.


Approved June 17, 2011.
Effective September 1, 2011.

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...




                              2011 Tex. Sess. Law Serv. Ch. 839 (H.B. 3423) (VERNON'S)

                                     VERNON'S TEXAS SESSION LAW SERVICE 2011

                                        Eighty-Second Legislature, 2011 Regular Session

                                     Additions are indicated by Text; deletions by Text .
                                               Vetoes are indicated by Text ;
                                                 stricken material by Text .

                                            CHAPTER 839
                                            H.B. No. 3423
                      CERTAIN CRIMINAL OFFENSES COMMITTED IN RELATION TO A
                    FEDERAL SPECIAL INVESTIGATOR; PROVIDING CRIMINAL PENALTIES

                                                            AN ACT
   relating to certain criminal offenses committed in relation to a federal special investigator; providing criminal penalties.

                                     Be it enacted by the Legislature of the State of Texas:

SECTION 1. Section 1.07(a), Penal Code, is amended by adding Subdivision (46–b) to read as follows:

                                                   << TX PENAL § 1.07 >>

  (46–b) “Federal special investigator” means a person described by Article 2.122, Code of Criminal Procedure.


SECTION 2. The heading to Section 37.08, Penal Code, is amended to read as follows:

                                                 << TX PENAL § 37.08 hd. >>

Sec. 37.08. FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT
EMPLOYEE.


SECTION 3. Section 37.08(a), Penal Code, is amended to read as follows:

                                                   << TX PENAL § 37.08 >>

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal
investigation and makes the statement to:

  (1) a peace officer or federal special investigator conducting the investigation; or

  (2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the
  actor knows is conducting the investigation.


SECTION 4. Sections 38.04(a) and (b), Penal Code, are amended to read as follows:

                                                   << TX PENAL § 38.04 >>




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...


(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special
investigator attempting lawfully to arrest or detain him.

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

  (1) a state jail felony if:

       (A) the actor has been previously convicted under this section; or

       (B) the actor uses a 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 or investigator from whom the
       actor is fleeing to apprehend the actor while the actor is in flight; or

  (3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer or investigator from
  whom the actor is fleeing to apprehend the actor while the actor is in flight.


SECTION 5. The heading to Section 38.14, Penal Code, is amended to read as follows:

                                                 << TX PENAL § 38.14 hd. >>

Sec. 38.14. TAKING OR ATTEMPTING TO TAKE WEAPON FROM PEACE OFFICER, FEDERAL SPECIAL
INVESTIGATOR, EMPLOYEE OR OFFICIAL OF CORRECTIONAL FACILITY, PAROLE OFFICER, COMMUNITY
SUPERVISION AND CORRECTIONS DEPARTMENT OFFICER, OR COMMISSIONED SECURITY OFFICER.


SECTION 6. Sections 38.14(b), (c), (d), and (e), Penal Code, are amended to read as follows:

                                                   << TX PENAL § 38.14 >>

(b) A person commits an offense if the person intentionally or knowingly and with force takes or attempts to take from a peace
officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and
corrections department officer, or commissioned security officer the officer's, investigator's, employee's, or official's firearm,
nightstick, stun gun, or personal protection chemical dispensing device with the intention of harming the officer, investigator,
employee, or official or a third person.

(c) The actor is presumed to have known that the peace officer, federal special investigator, employee or official of a
correctional facility, parole officer, community supervision and corrections department officer, or commissioned security officer
was a peace officer, federal special investigator, employee or official of a correctional facility, parole officer, community
supervision and corrections department officer, or commissioned security officer if:

  (1) the officer, investigator, employee, or official was wearing a distinctive uniform or badge indicating his employment; or

  (2) the officer, investigator, employee, or official identified himself as a peace officer, federal special investigator,
  employee or official of a correctional facility, parole officer, community supervision and corrections department officer, or
  commissioned security officer.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
CERTAIN CRIMINAL OFFENSES COMMITTED IN..., 2011 Tex. Sess. Law...


(d) It is a defense to prosecution under this section that the defendant took or attempted to take the weapon from a peace
officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and
corrections department officer, or commissioned security officer who was using force against the defendant or another in excess
of the amount of force permitted by law.

(e) An offense under this section is:

  (1) a felony of the third degree, if the defendant took a weapon described by Subsection (b) from an officer, investigator,
  employee, or official described by that subsection; and

  (2) a state jail felony, if the defendant attempted to take a weapon described by Subsection (b) from an officer, investigator,
  employee, or official described by that subsection.


SECTION 7. This Act takes effect September 1, 2011.

  Passed by the House on May 13, 2011: Yeas 144, Nays 0, 1 present, not voting; passed by the Senate on May 24, 2011:
  Yeas 31, Nays 0.


Approved June 17, 2011.
Effective September 1, 2011.

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...




                                2011 Tex. Sess. Law Serv. Ch. 920 (S.B. 1416) (VERNON'S)

                                      VERNON'S TEXAS SESSION LAW SERVICE 2011

                                        Eighty-Second Legislature, 2011 Regular Session

                                     Additions are indicated by Text; deletions by Text .
                                               Vetoes are indicated by Text ;
                                                 stricken material by Text .

                                        CHAPTER 920
                                         S.B. No. 1416
 CREATION OF THE OFFENSE OF POSSESSION, MANUFACTURE, TRANSPORTATION, REPAIR, OR SALE
 OF A TIRE DEFLATION DEVICE AND TO THE OFFENSE OF ATTEMPTING TO EVADE ARREST THROUGH
      THE USE OF A VEHICLE OR A TIRE DEFLATION DEVICE; PROVIDING CRIMINAL PENALTIES

                                                              AN ACT
                       relating to the creation of the offense of possession, manufacture, transportation,
                    repair, or sale of a tire deflation device and to the offense of attempting to evade arrest
                      through the use of a vehicle or a tire deflation device; providing criminal penalties.

                                     Be it enacted by the Legislature of the State of Texas:

SECTION 1. Section 46.01, Penal Code, is amended by adding Subdivision (17) to read as follows:

                                                   << TX PENAL § 46.01 >>

  (17) “Tire deflation device” means a device, including a caltrop or spike strip, that, when driven over, impedes or
  stops the movement of a wheeled vehicle by puncturing one or more of the vehicle's tires. The term does not include
  a traffic control device that:

       (A) is designed to puncture one or more of a vehicle's tires when driven over in a specific direction; and

       (B) has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns
       motor vehicle operators of the traffic control device.


SECTION 2. Subsections (a), (d), and (e), Section 46.05, Penal Code, are amended to read as follows:

                                                   << TX PENAL § 46.05 >>

(a) A person commits an offense if the person [he ] intentionally or knowingly possesses, manufactures, transports, repairs,
or sells:

  (1) an explosive weapon;

  (2) a machine gun;

  (3) a short-barrel firearm;

  (4) a firearm silencer;




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CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...




  (5) a switchblade knife;

  (6) knuckles;

  (7) armor-piercing ammunition;

  (8) a chemical dispensing device; [or ]

  (9) a zip gun; or

  (10) a tire deflation device.

(d) It is an affirmative defense to prosecution under this section that the actor's conduct:

  (1) was incidental to dealing with a switchblade knife, springblade knife, [or ] short-barrel firearm, or tire deflation device
  solely as an antique or curio; [or ]

  (2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to
  an organization, agency, or institution listed in Subsection (b); or

  (3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an
  organization, agency, or institution listed in Subsection (b).

(e) An offense under Subsection (a)(1), (2), (3), (4), (7), (8), or (9) [this section ] is a felony of the third degree [unless it is
committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor ]. An offense under Subsection (a)
(10) is a state jail felony. An offense under Subsection (a)(5) or (6) is a Class A misdemeanor.


SECTION 3. Subsections (b) and (c), Section 38.04, Penal Code, are amended to read as follows:

                                                    << TX PENAL § 38.04 >>

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

  (1) a state jail felony if[:

       [(A) ] the actor has been previously convicted under this section; [or

       [(B) the actor uses a 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; or

       (C) the actor uses a tire deflation device against the officer while the actor is in flight; or

  (3) a felony of the second degree if:




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CREATION OF THE OFFENSE OF POSSESSION,..., 2011 Tex. Sess. Law...




        (A) another suffers death 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; or

        (B) another suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while the
        actor is in flight.

(c) In this section:

  (1) “Vehicle”[, “vehicle” ] has the meaning assigned by Section 541.201, Transportation Code.

  (2) “Tire deflation device” has the meaning assigned by Section 46.01.


                                              << Note: TX PENAL § 38.04 >>

SECTION 4. Section 38.04, Penal Code, as amended by this Act, applies only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the
offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 5. This Act takes effect September 1, 2011.

  Passed the Senate on April 11, 2011: Yeas 31, Nays 0; the Senate concurred in House amendment on May 27, 2011: Yeas
  31, Nays 0; passed the House, with amendment, on May 20, 2011: Yeas 147, Nays 0, two present not voting.


Approved June 17, 2011.
Effective September 1, 2011.

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
