REFORM and AFFIRM; and Opinion Filed December 31, 2014.




                                         S
                                Court of Appeals
                                                 In The


                         Fifth District of Texas at Dallas
                                      No. 05-13-01480-CR

                            SAMMIE LEE GARRETT, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. F-12-45789-I

                             MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Brown
                                   Opinion by Justice O'Neill
       Appellant Sammie Lee Garrett appeals his jury conviction for evading arrest with a motor

vehicle. After finding appellant guilty, the jury assessed appellant’s punishment, enhanced by a

prior felony conviction, at twenty years’ confinement.     In two issues, appellant asserts his

sentence was illegal because it was based on an unconstitutional amendment to the evading arrest

statute changing the offense from a state-jail felony to a third-degree felony. For the following

reasons, we affirm the trial court’s judgment.

       In 2011, the Texas Legislature passed Senate Bill 1416 which amended section 38.04 of

the Texas Penal Code making evading arrest a third-degree felony if the defendant used a motor

vehicle in flight. See Act of May 27, 2011, 82nd Leg., R.S., Ch 920, § 8 (current version at TEX.

PEN. CODE ANN. 38.04 (West Supp. 2014)). Prior to that amendment, the offense was a state-jail

felony. See Act of May 27, 2009, 81st Leg., R.S., Ch. 1400, § 4. Appellant asserts that SB 1416
violated the “single-subject rule” of the Texas Constitution and, as a consequence, his sentence

was outside the range of punishment and therefore illegal.

       Appellant did not challenge the constitutionality of the amended statute in the trial

proceedings. Appellant asserts he is nevertheless permitted to raise this issue because he may

challenge an illegal sentence at any time. See Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim.

App. 1991); see also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). The State,

on the other hand, asserts appellant waived this complaint.

       The Court of Criminal Appeals has held that a defendant may not raise for the first time

on appeal a facial challenge to the constitutionality of a statute. Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009.) Here, appellant’s argument that his sentence was illegal is

premised on his contention that the statute, as amended, was unconstitutional. A statute is

presumed to be constitutional until it is determined otherwise. Id.   Because appellant’s sentence

was within the range of punishment as provided in the amended statute, and appellant waived his

constitutional challenge to the statute, he has not shown his sentence is illegal. Cf. Karenev, 281

S.W.3d at 434.

       Furthermore, appellant has also failed to show the amendment to the statute was

unconstitutional. Appellant’s sole basis for asserting his sentence is illegal is that SB 1416

violated Article III, Section 35(a) of the Texas Constitution which prohibits bills from containing

more than one subject. After appellant filed his brief, the Court of Criminal Appeals decided this

precise issue against appellant, expressly holding that SB 1416 does not unconstitutionally

violate the “single-subject rule.” See Ex parte Jones, 440 S.W.3d 628, 629-30 (Tex. Crim. App.

2014). Consequently, we resolve appellant’s issues against him.

       In its brief, the State asks we correct an erroneous recitation in the trial court’s judgment.

Specifically, the judgment recites appellant was convicted of a state-jail felony, but the record

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shows he was convicted of a third-degree felony. This Court has the power to modify incorrect

judgments when it has the necessary information to do so. See Asberry v. State, 813 S.W.2d 526,

529-30 (Tex. App.—Dallas 1991, pet. ref’d). Therefore, we reform the judgment to show

appellant was convicted of a third-degree felony.

       As reformed, we affirm the trial court’s judgment.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47

131480F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

SAMMIE LEE GARRETT, Appellant                       On Appeal from the Criminal District Court
                                                    No. 2, Dallas County, Texas
No. 05-13-01480-CR        V.                        Trial Court Cause No. F-12-45789-I.
                                                    Opinion delivered by Justice O'Neill.
THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Brown
                                                    participating.

        Based on the Court’s opinion of this date, we REFORM the trial court’s judgment to
reflect appellant was convicted of a third-degree felony.

       We AFFIRM the trial court’s judgment, as reformed.


Judgment entered this 31st day of December, 2014.




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