                                                                                  ACCEPTED
                                                                              06-15-00083-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                         11/3/2015 2:11:28 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                        NO. 06-15-00083-CR
__________________________________________________________________
                                                         FILED IN
                                                  6th COURT OF APPEALS
 IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
                                                     TEXARKANA,   TEXAS
                              TEXAS               11/3/2015 2:11:28 PM
                                                      DEBBIE AUTREY
__________________________________________________________________
                                                          Clerk

                   ROBERT JUSTIN MOORHEAD
                             Appellant,
                                v.
                      THE STATE OF TEXAS
                             Appellee.
__________________________________________________________________

                    On Appeal from Cause No. 44,128-A
         In the 188th Judicial District Court of Gregg County, Texas
                 Honorable David Brabham, Presiding Judge
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

                                Jonathan Wharton
                                SNOW E. BUSH, JR., P.C.
                                Texas State Bar No. 24075764
                                420 N. Center Street
                                Longview, TX 75601
                                Tel. (903) 753-7006
                                Fax (903) 753-7278
                                jonathanwharton1@sbcglobal.net
                                ATTORNEY FOR APPELLANT
                                ROBERT JUSTIN MOORHEAD



                                                November 6, 2015
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant

lists the following parties affected by this appeal, and their respective appellate and

trial counsel:

Appellant: Robert Justin Moorhead

Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
Tel. 903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Court-Appointed Appellate Counsel for Robert Justin Moorhead

Kevin G. Giddens
1215 Pruitt Place
Tyler, TX 75703
Tel. 903.526.9000
Appointed Trial Counsel for Robert Justin Moorhead

Appellee: The State of Texas

Zan Brown
Gregg County District Attorney’s Office
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Appellate Counsel for the State of Texas

Debbie Garrett
Gregg County District Attorney’s Office

                                          1
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Trial Counsel for the State of Texas




                                       2
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NO REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                            3
                                          INDEX OF AUTHORITIES

                                                        STATUTES

Tex. Pen. Code § 12.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Pen. Code § 12.42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Pen. Code § 12.425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Pen. Code § 22.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Pen. Code § 38.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                                                            CASES

Baker v. State, 278 S.W.3d 923 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . 9

Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . 10

Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . 10

Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . 10




                                                                  4
                          STATEMENT OF THE CASE

      Robert Justin Moorhead pled guilty to aggravated assault and evading arrest

with a vehicle. 3 RR 7. The case was tried to the court on punishment. 3 RR 11. The

trial court convicted him, found the enhancement paragraphs true, and sentenced him

to fifteen years in the penitentiary on both charges, to run concurrently, with a deadly

weapon finding on the aggravated assault. 4 RR 41-42.

                    NO REQUEST FOR ORAL ARGUMENT

      Because this case is not very complex, the court’s decisional process would not

benefit from oral argument.

                               ISSUES PRESENTED

1.    The defendant was indicted for the state-jail felony offense of evading arrest
      with a motor vehicle and was sentenced to fifteen years confinement. Is the
      sentence illegal?

                            STATEMENT OF FACTS

      Robert Justin Moorhead was indicted for aggravated assault and evading arrest

with a vehicle. CR 5. The indictment included an enhancement paragraph based on

a prior conviction for harassment of a public servant. CR 5. After admonishments,

Moorhead waived his right to a jury trial. 2 RR 4-7; CR 15. He pled guilty and

proceeded to a bench trial on punishment. 3 RR 7-9 .

      The trial court and the prosecution thought that evading arrest with a motor

                                           5
vehicle is ordinarily a third-degree felony. 3 RR 13. But evading arrest is a state jail

felony unless the defendant has a previous conviction for evading arrest. Tex. Pen.

Code § 38.04(b). Based on the belief that the evading charge was a third-degree

felony, the trial court thought it was enhanced to a second-degree felony by

Moorhead’s prior conviction. The trial court assessed punishment at fifteen years in

the penitentiary on both the evading arrest and aggravated assault charges, to run

concurrently. 4 RR 41-42.

                       SUMMARY OF THE ARGUMENT

      Evading arrest with a motor vehicle is a state jail felony. The indictment did not

allege facts that would enhance the charge to a second-degree felony. The sentence

of fifteen years is an illegal sentence for a state jail felony conviction, so the case

should be remanded to the trial court for a new sentencing hearing.

                                    ARGUMENT

I.    The Fifteen-Year Sentence is Illegal

      A.     Moorhead Was Indicted for the State-Jail Felony Offense of
             Evading Arrest with a Motor Vehicle

      Moorhead was sentenced to fifteen years for evading arrest with a motor

vehicle. 4 RR 41-42. The reason is that the trial court thought that the evading arrest

with a motor vehicle charge was a third-degree felony. 3 RR 13. If that were true, the



                                           6
third-degree charge would enhance to a second-degree felony based on a single

previous felony conviction, as the trial court was led to believe. Tex. Pen. Code §

12.42(a); 3 RR 13 (“The Court: On the Count II of the indictment, evading arrest or

detention with a vehicle, that is a—ordinarily, a third-degree felony. Counsel, now

with the enhancement it would be a second-degree felony punishment range; is that

correct? [The Prosecution]: Yes, Your Honor, that’s correct.”)

      Normally, evading arrest with a motor vehicle is a state jail felony, though.

Tex. Pen. Code § 38.04(b)(1). It is only a third-degree felony if the defendant has

previously been convicted of evading arrest or if someone suffers serious bodily

injury as a result of the flight. Tex. Pen. Code § 38.04(b)(2). The indictment did not

allege either a previous evading arrest conviction or serious bodily injury. CR 5.

Thus, the evading arrest charge as indicted was a state jail felony.

      State jail felonies may be enhanced based on previous convictions. Tex. Pen.

Code § 12.35; Tex. Pen. Code § 12.425. There are three ways for state jail felonies

to become second-degree felonies: (1) two previous, sequential convictions for third-

degree-and-up felonies; (2) a two-step process involving a deadly weapon finding;

or (3) a previous felony conviction with an affirmative deadly weapon finding or

certain enumerated crimes like human trafficking. Tex. Pen. Code § 12.425(b)-(c);

Tex. Pen. Code § 12.35(c)(2). The indictment does not allege any of those

                                          7
enhancements.

      As for (1) and (3), the indictment does not contain anything about the two

previous, sequential convictions for felonies. It also does not allege a previous

conviction involving the enumerated crimes or an affirmative deadly weapon finding.

CR 5; Tex. Pen. Code § 12.35(c)(2) (enumerating crimes); see also State’s Exhibit

3A (charge used for enhancement did not have a deadly weapon finding and did not

involve one of the enumerated crimes).

      The indictment does not allege an enhancement under option (2) either. The

two-step process for enhancing state jail felonies to second-degree felonies works as

follows. First, state jail felonies may be enhanced to third-degree felonies if a deadly

weapon was used in the commission of the offense. Tex. Pen. Code § 12.35(c).

Second, the charge is further enhanced up to a second-degree felony if the defendant

has also previously been convicted of a third-degree felony or greater. Tex. Pen. Code

§ 12.425(c). The State alleged step two, which is that Moorhead had previously been

convicted of harassing a public servant, a third-degree felony. CR 5; Tex. Pen. Code

§ 22.11(b). But the State did not satisfy step one, which was to allege that Moorhead

used a deadly weapon in the commission of the evading charge. CR 5. The only

mention of a deadly weapon is under “Count I,” which alleges that Moorhead

committed aggravated assault with a deadly weapon. “Count II,” the evading arrest

                                           8
count, does not allege the use of a deadly weapon. CR 5.

       B.     The Indictment Did Not Authorize a Second-Degree Felony
              Conviction for Evading Arrest with a Motor Vehicle

       Defendants cannot be convicted of crimes they were not indicted for, and

Moorhead was not indicted for third-degree felony evading arrest with a motor

vehicle, and no enhancement was alleged that would enhance his state jail felony

offense to a second-degree felony. Martinez v. State, 225 S.W.3d 550, 554 (Tex.

Crim. App. 2007). “Permitting more convictions than authorized by the indictment

implicates a defendant's due-process right to notice. . . . The charge must be known

before the proceedings commence, and the charges cannot be amended (nor added to),

once the proceedings are underway.” Id.

       The indictment did not authorize a conviction for second-degree felony evading

arrest. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The “law” as

“authorized by the indictment” means the statutory elements of the law as modified

by the charging instrument. Curry, 30 S.W.3d at 404. The charging instrument sets

out a state jail felony offense, so the conviction is for a state jail felony offense. There

is legally insufficient evidence to support a second-degree felony offense based on

the indictment in this case. It would be a violation of Moorhead’s due process right

to notice under the Fourteenth Amendment to permit a conviction for an offense that



                                             9
was not alleged in his indictment. Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim.

App. 2007).

      C.      The Fifteen-Year Sentence is Illegal and Therefore a New Sentencing
              Hearing is Required

      Because Moorhead was indicted and convicted of a state jail felony offense,

his sentence of fifteen years is outside the statutory punishment range and is thus

illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Illegal

sentences are void, and the problem may be raised at any time without the necessity

of an objection. Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991). This

case should be remanded to the trial court for a new sentencing hearing. See Baker

v. State, 278 S.W.3d 923, 927 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

                                     PRAYER

      Robert Justin Moorhead respectfully requests that this Court remand this

case to the trial court for a new sentencing hearing on the evading-arrest-with-a-

motor-vehicle charge.


                                       Respectfully submitted,

                                       SNOW E. BUSH, JR., P.C.
                                       420 N. Center Street
                                       Longview, TX 75601
                                       Tel. (903) 753-7006
                                       Fax. (903) 753-7278

                                         10
                                      E-mail: jonathanwharton1@sbcglobal.net


                                      By:    /s/ Jonathan Wharton
                                             JONATHAN WHARTON
                                             STATE BAR NO. 24075764
                                             ATTORNEY FOR APPELLANT,
                                             ROBERT JUSTIN MOORHEAD

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing has
been delivered to Zan Brown, counsel for appellee, on this the 3d day of
November, 2015.
                                                /s/ Jonathan Wharton
                                                JONATHAN WHARTON

                      CERTIFICATE OF COMPLIANCE

       I hereby certify that the Appellants Brief (as measured under Tex. R. App.
P. 9.4(i)(1)) contains 1,283 words as counted by Microsoft WordPerfect on this
the 3d day of November, 2015.

                                                 /s/ Jonathan Wharton
                                                JONATHAN WHARTON




                                        11
