Opinion filed June 19, 2014




                                    In The


        Eleventh Court of Appeals
                                 __________

                              No. 11-13-00005-CR
                                  __________

                MATTHEW FRANKLIN WISE, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 25080A

                      MEMORANDUM OPINION
      Matthew Franklin Wise appeals his conviction of evading arrest or detention
in a motor vehicle. See TEX. PENAL CODE ANN. § 38.04 (West Supp. 2013). After
Appellant pleaded true to two enhancement paragraphs, the jury assessed
punishment at confinement for thirty-eight years.     The trial court sentenced
Appellant accordingly. Appellant challenges the sufficiency of the evidence and
urges that his sentence is not authorized by law. Specifically, Appellant asserts
that Texas Senate Bill 1416 is contrary to Section 35 of Article III of the Texas
Constitution because it violates the “single-subject rule.” See TEX. CONST. art. III,
§ 35.       Appellant also claims that Texas Senate Bill 1416’s amendment of
Section 38.04 of the Texas Penal Code conflicts with Texas House Bill 3423’s
amendment of the statute.1 We affirm.
                                       I. Charged Offenses
        The grand jury indicted Appellant for one count of possession of
methamphetamine and one count of possession of methamphetamine with intent to
deliver—an amount of 4 grams but less than 200 grams. 2 The grand jury also
indicted Appellant in a third count for evading arrest or detention in a motor
vehicle.     Appellant pleaded “not guilty” to all three counts. The jury found
Appellant not guilty of possession of methamphetamine and not guilty of
possession of methamphetamine with intent to deliver.                        But the jury found
Appellant guilty of evading arrest or detention in a motor vehicle.
        A person commits the third-degree felony offense of evading arrest or
detention if he intentionally flees from a person he knows is a peace officer
attempting lawfully to arrest or detain him and uses a vehicle in flight. 3 PENAL
§ 38.04(b)(2)(A); see Ex parte Jones, No. PD-1158-13, 2014 WL 2478134 (Tex.
Crim. App. June 4, 2014). The punishment range for a third-degree felony is
imprisonment for not less than two years or more than ten years. PENAL § 12.34(a)

        1
        See Texas H.B. 3423, Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4; Texas S.B. 1416, Act
of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3; PENAL § 38.04; see also Texas S.B. 496, Act of May 23,
2011, 82nd Leg., R.S., ch. 391, § 1.
        2
        TEX. HEALTH & SAFETY CODE ANN. §§ 481.112, 481.115 (West 2010).
        3
          Section 38.04 of the Texas Penal Code was revised in 2011, effective on September 1, 2011, and
was revised in 2013. However, the 2013 amendment merely redesignated a duplicate-numbered
subdivision in Section 38.04(c) and is not relevant to the issues in this appeal. The Code referenced in
this opinion is the statute in force on the date of the offense, which was February 29, 2012.


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(West 2011). In addition, a fine of up to $10,000 may be assessed. Id. § 12.34(b).
The punishment range for a person convicted of a felony who has previously been
convicted of two prior felonies, other than state jail felonies, is enhanced to
imprisonment for life or for a term of not less than twenty-five years or more than
ninety-nine years. PENAL § 12.42(d).
                                       II. Evidence at Trial
        Taylor County Narcotics Agent Gary Kalmus testified that on February 29,
2012, he and Sergeant Shay Bailey observed a silver car leaving a known drug
house in Abilene, Texas, at a high rate of speed. The officers attempted to stop the
vehicle for speeding, but the driver refused to pull over. Although the officers
were in an unmarked pickup, the pickup was equipped with emergency lights, a
siren, and a police placard that could be displayed in the front window. Agent
Kalmus noted that he activated the lights and siren but that the silver car did not
stop.
        As the officers chased the silver car, they watched the driver almost collide
with a marked Abilene Police Department (APD) vehicle. Agent Kalmus stated
that the driver of the APD vehicle initially chased the silver car but then pulled
over to let him and Sergeant Bailey lead the pursuit.
        Agent Kalmus stated that he pursued the silver car for about five minutes
and that, during that time, the driver traveled at speeds up to eighty miles per hour.
Agent Kalmus noted that he videotaped the pursuit with a handheld recorder, and a
portion of this video was played for the jury. 4
        Agent Kalmus admitted that he lost visual contact of the silver car during the
pursuit but suspected that the driver was headed to 250 North 13th Street, the

        4
         Although the siren on Agent Kalmus’s vehicle can be heard during the video, the video does not
show the silver car or its driver. The video shows Agent Kalmus and Sergeant Bailey following
Officer Kevin Easley and Officer Easley then letting the other officers lead the pursuit to 250 North 13th
Street.

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location of a known drug house in the area. When Agent Kalmus and Sergeant
Bailey arrived at 250 North 13th Street, the silver car was parked outside, and
Appellant was running from the car toward the house.
     Agent Kalmus stated that he then arrested Appellant for the offense of
evading arrest.    Agent Kalmus noted that officers subsequently searched the
surrounding neighborhood and discovered a canvas bag on the street directly north
of the house; the bag was filled with over sixty grams of methamphetamine. Agent
Kalmus stated that he believed the bag of methamphetamine belonged to Appellant
and that Appellant had hidden the bag during the time the officers had lost visual
contact of him.
      Officer Kevin Easley testified that he was driving a marked Chevrolet Tahoe
when he saw a silver car run a stop sign. As the car approached him from the
opposite side of the road, Officer Easley noticed the driver was traveling so fast
that the driver could not stay in the correct lane. Officer Easley stated that he had
to steer his vehicle into a ditch in order to avoid a collision with the other driver’s
car. Because his vehicle was only six or seven feet from the car, Officer Easley
made eye contact with the driver of the car and identified him as Appellant.
      Officer Easley recalled that, immediately after the near-collision, he made a
U-turn, activated his lights, and pursued the silver car. Officer Easley stated that,
when he noticed that Agent Kalmus and Sergeant Bailey were already in pursuit of
the car, he held back to let the other officers lead the chase.
                                 III. Issues Presented
      Appellant presents three issues in the form of questions, which are
paraphrased as follows:
      (1)    Was the evidence at trial sufficient to support Appellant’s conviction
             of evading arrest with a motor vehicle?



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      (2)    Is Texas Senate Bill 1416 contrary to TEX. CONST. art. III, § 35
             because it violates the “single-subject rule”?

      (3)    Does Texas Senate Bill 1416’s amendment of Section 38.04 of the
             Penal Code conflict with Texas House Bill 3423’s amendment of that
             statute?

The answer to the first question is “yes,” while the answers to the remaining two
questions are “no.”
                              IV. Standard of Review
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d).         Under the Jackson standard, we
examine all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight and
credibility of the evidence, and a reviewing court may not reevaluate the weight
and credibility of the evidence so as to substitute its own judgment for that of the
factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The
reviewing court must presume that the factfinder resolved any conflicting
inferences in favor of the prosecution and defer to that resolution. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
                                    V. Analysis
      A. Sufficiency of the Evidence
      Appellant argues in his first issue that the evidence at trial was not sufficient
to support his conviction of evading arrest. Appellant contends that the evidence

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failed to prove he knew he was being pursued by the police when he led several
officers on a high-speed chase that lasted several minutes.
      A person commits the offense of evading arrest if he knows a police officer
is attempting to arrest or detain him but nevertheless refuses to yield to a police
show of authority. Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d). While speed, distance, and duration of pursuit may
be factors in considering whether a defendant intentionally fled, no particular
speed, distance, or duration must show the requisite intent if other evidence
establishes such intent. Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—
Texarkana 2007, no pet.)
      In this case, the State adduced evidence that Appellant drove over the posted
speed limit for several miles while two officers attempted to pull him over for
speeding. Although the officers were in an unmarked vehicle, the vehicle’s siren
and lights were activated during the chase.
      Appellant next came in contact with a third officer who watched him run a
stop sign before almost being run off the road by Appellant’s reckless driving.
Because the officer’s vehicle came within a short distance of Appellant’s vehicle,
the officer made eye contact with Appellant and later identified him as the driver
of the vehicle. The officer then made a U-turn, activated his emergency lights, and
joined in the pursuit of Appellant.
      Appellant led officers on a chase that lasted several minutes and reached
speeds up to eighty miles per hour. Moreover, Appellant drove in a dangerous
manner and committed numerous traffic violations during the pursuit.           The
testimony at trial as to Appellant’s acts during the commission of the offense
sufficiently supported the jury’s finding that Appellant intentionally fled from
police officers lawfully attempting to detain him.       Appellant’s first issue is
overruled.
                                         6
      B. “Single-Subject” Requirement of Section 35 of Article III of the Texas
           Constitution
      Appellant argues, in his second issue, that Texas Senate Bill 1416 is
unconstitutional based on its failure to conform to the “single-subject” requirement
of Section 35 of Article III of the Texas Constitution. TEX. CONST. art. III, § 35.
Consequently, Appellant contends that evading arrest or detention in a vehicle
remains a state jail felony and that his punishment under Senate Bill 1416’s
amendment to Section 38.04 of the Penal Code was unauthorized. Section 35 of
Article III of the Texas Constitution provides as follows:
           (a) No bill, (except general appropriation bills, which may
      embrace the various subjects and accounts, for and on account of
      which moneys are appropriated) shall contain more than one subject.

             (b) The rules of procedure of each house shall require that the
      subject of each bill be expressed in its title in a manner that gives the
      legislature and the public reasonable notice of that subject. The
      legislature is solely responsible for determining compliance with the
      rule.

             (c) A law, including a law enacted before the effective date of
      this subsection, may not be held void on the basis of an insufficient
      title.

The Court of Criminal Appeals recently ruled that Texas Senate Bill 1416, which
amended Section 38.04 of the Texas Penal Code, does not unconstitutionally
violate the single-subject rule in Section 35 of Article III of the Texas Constitution.
Jones, 2014 WL 2478134.
      In Jones, the appellant claimed that he could not be punished for evading
arrest as a third-degree felony, instead of a state jail felony, as a first-time offender
because Texas Senate Bill 1416 violated Section 35 of Article III of the Texas
Constitution. Id., at *1. The Court of Criminal Appeals held, in Jones, that “[t]he
provisions in [Senate Bill 1416] have the same general subject: imposition of
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criminal penalties described in the Texas Penal Code for offenses involving motor
vehicles. Furthermore, the provisions of the bill also have a mutual connection in
that their enactment was intended to better protect law enforcement and the public
from actors who evade arrest.” Id., at *3.
      In addition, the Court of Criminal Appeals has construed Article III,
section 35(c) to mean that courts no longer have the power to declare an act of the
legislature unconstitutional due to the insufficiency of a bill’s caption.       TEX.
CONST. art. III, § 35; Jones, 2014 WL 2478134, at *5–6; Meshell v. State, 739
S.W.2d 246, 251 (Tex. Crim. App. 1987); Baggett v. State, 722 S.W.2d 700, 702
(Tex. Crim. App. 1987); Page v. State, 70 S.W.3d 317, 319 (Tex. App.—Waco
2002, no pet.). Appellant’s second issue is overruled.
      C. Amendments to Section 38.04 of the Texas Penal Code
      Appellant argues in his final issue that there is a clear conflict between the
amendments to Section 38.04 of the Texas Penal Code, as set forth in Texas Senate
Bill 1416 and Texas House Bill 3423. Based on this conflict, Appellant contends
that Section 311.031(b) of the Texas Government Code requires the application of
House Bill 3423 in this case. See TEX. GOV’T CODE ANN. § 311.031(b) (West
2013).
      Appellant’s reliance on Section 311.031(b) of the Texas Government Code
is misplaced, as no recent amendment to Section 38.04 of the Texas Penal Code
reduces the punishment for the offense of evading arrest. Id.; PENAL § 38.04.
Instead, the applicable provision is Section 311.025(b) of the Texas Government
Code. GOV’T § 311.025(b). Section 311.025(b) provides as follows:
            (b) Except as provided by Section 311.031(d), if amendments to
      the same statute are enacted at the same session of the legislature, one
      amendment without reference to another, the amendments shall be
      harmonized, if possible, so that effect may be given to each. If the


                                         8
       amendments are irreconcilable, the latest in date of enactment
       prevails.

Section 311.025(d) defines the “date of enactment” as the date on which the last
legislative vote was taken on the bill. Id. § 311.025(d).
       During its 82nd regular session, the Texas legislature passed three separate
bills that amended Section 38.04 of the Texas Penal Code: Senate Bill 496, House
Bill 3423, and Senate Bill 1416. We hold that these bills do not present an
irreconcilable conflict and may be harmonized based on the sequence in which
they were enacted. In order to fully address Appellant’s argument, we will discuss
each of these bills in detail.
       Senate Bill 496 passed in the Senate on April 13, 2011, and passed in the
House on May 23, 2011. The bill amended Section 38.04 of the Texas Penal Code
so as to enhance the punishment for a person who commits the offense of evading
arrest using a watercraft.
       House Bill 3423 passed in the House on May 13, 2011, and passed in the
Senate on May 24, 2011. The bill amended Section 38.04 of the Texas Penal Code
so as to make the offense of evading arrest applicable to a person who intentionally
flees from a federal special investigator attempting to lawfully arrest or detain him.
       Senate Bill 1416 passed in the Senate on April 11, 2011, and passed in the
House on May 20, 2011, and the Senate concurred with the House amendment on
May 27, 2011. The bill amended Section 38.04 of the Texas Penal Code in two
ways: (1) the bill created additional liability for a person who intentionally flees
from police using a tire deflation device and (2) the bill elevated the offense of
evading arrest using a motor vehicle to a third-degree felony.
       Because Senate Bill 1416 was the last of the three bills to be enacted, the
fact that the other bills do not contain the language used in Senate Bill 1416 does
not present an irreconcilable conflict. Rather, the sequence in which the bills were
                                          9
passed shows that the legislature did not intend to change the grade of the offense
and, thus, increase the punishment for the offense of evading arrest using a motor
vehicle until it passed Senate Bill 1416.
      We conclude that the legislature intended to make three sets of amendments
to Section 38.04 of the Texas Penal Code, and all of these amendments may be
harmonized so as to give effect to each one. Senate Bill 1416 does not conflict
with House Bill 3423 or Senate Bill 496. Consequently, Appellant was properly
sentenced under Senate Bill 1416’s amendment to Section 38.04 of the Texas
Penal Code. Appellant’s third issue is overruled.
                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


June 19, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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