                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-13-00159-CR

EALON CHARLES SCOTT,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 220th District Court
                              Hamilton County, Texas
                              Trial Court No. CR 7755


                            MEMORANDUM OPINION


       Ealon Charles Scott was convicted of evading arrest or detention with a vehicle, a

third degree felony, and sentenced to 10 years in prison. TEX. PENAL CODE ANN. §

38.04(b)(2)(A) (West Supp. 2013). Because Scott failed to meet his burden to show his

trial counsel was ineffective and because Scott’s sentence was not illegal, the trial court’s

judgment is affirmed.

INEFFECTIVE ASSISTANCE OF COUNSEL

       In his first issue, Scott argues that his trial counsel rendered ineffective assistance
by failing to request a mistake of fact instruction in the jury charge.

        To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland: that (1)

counsel's representation fell below an objective standard of reasonableness, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless appellant can prove both prongs, an appellate court must not

find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. In order to

satisfy the first prong, appellant must prove, by a preponderance of the evidence, that

trial counsel's performance fell below an objective standard of reasonableness under the

prevailing professional norms. Id. To prove prejudice, appellant must show that there

is a reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

        An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for


Scott v. State                                                                         Page 2
an appellate court "to fairly evaluate the merits of such a serious allegation."          Id.

(quoting Bone, 77 S.W.3d at 833 (quoting Thompson v. State, 9 S.W.3d 808, 813-814)).

        Here, the record is silent as to why counsel did not request a mistake of fact

instruction. Further, even if the record was not silent and supported the first prong of

the Strickland test, Scott fails to argue that there was a reasonable probability the result

of his trial would have been different. Instead, he cites to three cases for the proposition

that prejudice is presumed. None of the cases cited involved an ineffective assistance

claim; rather, the cases involved a question of error and harm when the trial court

denied a request for a mistake of fact instruction. Thus, these cases do not support

Scott’s proposition.

        Scott has failed to meet his burden under Strickland and his first issue is

overruled.

ILLEGAL SENTENCE

        In his second issue, Scott contends that because section 38.04 of the Texas Penal

Code contains conflicting penalty provisions for evading with a vehicle, the trial court

imposed an illegal sentence by opting for the harsher of the two provisions. An illegal

sentence is one that is not authorized by law. Ex parte Parrott, 396 S.W.3d 531, 534 (Tex.

Crim. App. 2013). Thus, a sentence that is outside the range of punishment authorized

by law is considered illegal.     Id.   Scott argues that because the two punishment

provisions conflict, they are irreconcilable; and any doubts in the enforcement of


Scott v. State                                                                         Page 3
provisions should be resolved against imposition of a harsher punishment.                            We

disagree with Scott.

        In the 2011 regular session, the legislature passed three bills amending the

evading arrest statute. See Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex.

Sess. Law Serv. 2320, 2320-21 (West) (current version at TEX. PENAL CODE ANN. § 38.04);

Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess. Law Serv. 2110, 2111

(West) (current version at TEX. PENAL CODE ANN. § 38.04); Act of May 23, 2011, 82nd

Leg., R.S., ch. 391, § 1, 2011 Tex. Sess. Law Serv. 1046, 1046 (West) (current version at

TEX. PENAL CODE ANN. § 38.04). Senate Bill 496 and House Bill 3423 both provided that

evading arrest is a state jail felony if the actor uses a vehicle while in flight. However,

Senate Bill 1416 provided that evading arrest is a third degree felony if the actor uses a

vehicle while in flight. These two differing punishment schemes are both codified in

section 38.04:

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

        Text of subsec. (b)(1), (2) as amended by Acts 2011, 82nd Leg., ch. 391 (S.B.
        496), § 1 and Acts 2011, 82nd Leg., ch. 839 (H.B. 3423), § 4

        (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:
Scott v. State                                                                                     Page 4
                 (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

        ***

        Text of subsec. (b)(1), (2) as amended by Acts 2011, 82nd Leg., ch. 839
        (H.B. 3423), § 4 and Acts 2011, 82nd Leg., ch. 920 (S.B. 1416), § 3

        (1) a state jail felony if the actor has 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….

TEX. PENAL CODE ANN. § 38.04 (West Supp. 2013) (emphasis added).

        Although these provisions appear irreconcilable, we agree with the Second Court

of Appeals and its reasoning in Adetomiwa v. State that they are not. Adetomiwa v. State,

___ S.W.3d ___, Nos. 02-12-00632-CR & 02-12-00633-CR, 2014 Tex. App. LEXIS 1039, *6-

*9 (Tex. App.—Fort Worth Jan. 30, 2014, no pet. h.). Senate Bill 496 and House Bill 3423

both made a single substantive change to section 38.04, adding the terms "watercraft"

and "federal special investigator," respectively, to the statutory language of section

38.04. Senate Bill 1416 made more extensive amendments, altering the punishment

scheme. Because each amendment makes substantive changes that the other does not,

the amendments are reconcilable. Adetomiwa, 2014 Tex. App. LEXIS 1039, *9 (citing

Rhoades v. State, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996) (holding that because each

amendment made substantive changes that the other did not, there was "no conflict


Scott v. State                                                                             Page 5
when one comprehends how statutory amendments are achieved.")).                       Thus,

harmonizing all three amendments to give effect to each, Senate Bill 1416 amended the

punishment scheme of section 38.04 to provide that evading arrest is a third degree

felony if the actor uses a vehicle in flight. See id., TEX. PENAL CODE ANN. § 38.04(b)(2)(A)

(West Supp. 2013); TEX. GOV'T CODE ANN. § 311.025(b) (West 2013) (“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”); see also Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3,

2011 Tex. Sess. Law Serv. at 2320-21.

        Even if the amendments to section 38.04 were irreconcilable as Scott argues, "the

latest in date of enactment" would prevail. TEX. GOV'T CODE ANN. § 311.025(b) (West

2013). The date of enactment is the date on which the last legislative vote is taken on

the bill enacting the statute. Id. § 311.025(d). Scott acknowledges that the vote on

Senate Bill 1416 on May 27, 2011 was the last legislative vote taken on all three bills.

Thus, according to the Code Construction Act, Senate Bill 1416's amendments to section

38.04—amending its punishment scheme to provide that evading arrest is a third

degree felony if the actor uses a vehicle in flight—prevails. See id. § 311.025(b), (d); see

also Adetomiwa, 2014 Tex. App. LEXIS 1039, *9-10.

        Primarily relying on the Court of Criminal Appeals’ opinion in Cuellar v. State,

Scott argues that this cannot be the result. Cuellar v. State, 70 S.W.3d 815 (Tex. Crim.


Scott v. State                                                                        Page 6
App. 2002). However, the opinion in Cuellar discussed the effect of a discharge of

community supervision and dismissal of an indictment under Article 42.12, Sec. 20 of

the Code of Criminal Procedure and is not controlling in this appeal.

        Scott was charged with a third degree felony and sentenced within its range.

Accordingly, his sentence was not illegal. Scott’s second issue is overruled.

        Having overruled each issue on appeal, we affirm the trial court’s judgment.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 27, 2014
Do not publish
[CR25]




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