                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                      No. 07-17-00371-CR
                                  ________________________


                    GILBERT RICHARD ARCHULETA, JR., APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 287th District Court
                                      Bailey County, Texas
                  Trial Court No. 3014; Honorable Gordon H. Green, Presiding


                                             May 9, 2019

                                MEMORANDUM OPINION
                      Before QUINN, CJ., and CAMPBELL and PIRTLE, JJ.


        Appellant, Gilbert Richard Archuleta, Jr., was convicted following a jury trial of

evading arrest or detention while operating a motor vehicle, enhanced by two prior felony

convictions.1 Following the punishment hearing, the jury sentenced him to twenty-five


        1 See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West 2016). An offense under this section is a
felony of the third degree. Appellant’s conviction was enhanced by two prior felony convictions to a
punishment range of confinement for not more than 99 years or less than 25 years. See TEX. PENAL CODE
ANN. § 12.42(d) (West Supp. 2018). The first felony offense alleged was residential burglary committed in
New Mexico in 2000 and the second felony offense alleged was burglary committed in Texas in 2008.
Appellant pleaded “true” to the Texas felony enhancement and “not true” to the New Mexico felony
enhancement.
years confinement. On appeal, Appellant asserts the State’s evidence was insufficient to

support (1) his conviction and (2) the enhancement of his range of punishment. We affirm.


       BACKGROUND

       In August 2017, an indictment was filed alleging that on or about March 31, 2016,

Appellant used a motor vehicle to intentionally flee from Heath Edwards, a person

Appellant knew was a peace officer who was attempting to lawfully arrest or detain him.

In September 2017, a jury trial was held.


       The State’s evidence at trial established that shortly before midnight on March 31,

2016, Officer Heath Edwards was in full uniform and driving a marked patrol car when he

received a call reporting a suspicious vehicle in the area of the Muleshoe Country Club.

The vehicle was described as a white van with “$19.95” painted on the side panel.


       Officer Edwards spotted a van matching that description as it passed him on the

road. After observing that the van did not have operable tail lights, he activated his patrol

car’s red/blue emergency lights. Rather than pulling over to the curb, the van stopped in

the middle of the road. Before Officer Edwards was able to call in the traffic stop,

Appellant exited the van and began approaching his patrol car.                Officer Edwards

immediately pulled his service revolver, stepped out of his car, and ordered Appellant to

stop and return to his vehicle. Appellant ignored his commands, commented that he

“didn’t have time for this shit, [because he had] to find [his] girlfriend,” returned to the van,

and drove away. At trial, Officer Gladys Ramos, who was also present at the traffic stop,

corroborated Officer Edwards’s account of the encounter.


       Officer Edwards immediately returned to his patrol car and gave pursuit. This time,

he activated the patrol car’s siren in addition to the red/blue emergency lights. Despite

                                               2
this, Appellant continued driving for approximately three blocks and then, three hundred

yards down a dirt road with multiple officers in pursuit. When the van stopped, Officer

Edwards again exited his patrol car with his service revolver drawn. Multiple verbal

commands were given to Appellant, which he ignored. After approximately eight minutes,

Appellant exited the van with his girlfriend in front of him in such a manner that his hands

were not visible. Appellant initially ignored Officer Edwards’s commands to show his

hands, but eventually acquiesced and was taken into custody. In addition to being

arrested for evading, Appellant had an outstanding warrant.


       On appeal, Appellant contends the evidence is insufficient to support his conviction

for evading arrest or detention while operating a motor vehicle because the State failed

to prove he had an intent to evade Officer Edwards. He also contends that the State’s

evidence was insufficient to establish that his prior felony committed in New Mexico was

“final.” See TEX. PENAL CODE ANN. §12.42(d) (West Supp. 2018). As a result, he asserts

his sentence is illegal because the establishment of the New Mexico felony increased his

minimum punishment range from two years to twenty-five years. Compare id. with §

12.42(a)(3). See Ex parte Pue, 552 S.W.3d 226, 228 (Tex. Crim. App. 2018) (a sentence

that is outside the range of punishment authorized by law is illegal).


       STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under that standard, in assessing the sufficiency of the evidence to support a
                                             3
criminal conviction, this court considers all the evidence in the light most favorable to the

verdict and determines whether, based on that evidence and reasonable inferences to be

drawn therefrom, a rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d

at 912. This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App.

2017).


         Furthermore, the trier of fact is the sole judge of the weight of the evidence and

credibility of the witnesses; TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979);

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), and we may not re-

evaluate the weight and credibility determinations made by the fact finder. Febus v. State,

542 S.W.3d 568, 572 (Tex. Crim. App. 2018). Thus, when the record supports conflicting

inferences, we presume the fact finder resolved those conflicts in favor of the the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).


         In reviewing the sufficiency of the evidence, a reviewing court must compare the

elements of the offense as defined by a hypothetically correct jury charge to the evidence

adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial and whether properly or

improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).


         “The duty of the reviewing court is simply to ensure that the evidence presented

supports the jury’s verdict and that the State has presented a legally sufficient case of the


                                              4
offense charged.” Queeman, 520 S.W.3d at 621. “Under this standard, evidence may

be legally insufficient when the record contains either no evidence of an essential

element, merely a modicum of evidence of one element, or if it conclusively establishes

a reasonable doubt.” Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing

Jackson, 443 U.S. at 320).


       ISSUE ONE—EVADING ARREST

       The elements of evading arrest or detention while using a motor vehicle are (1)

intentionally fleeing (2) from a person whom the defendant knows is a peace officer (3)

trying to lawfully arrest or detain him, and (4) using a motor vehicle while in flight. See

TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West 2016). The identity of the police officer

is not an element of the offense. Riggs v. State, 482 S.W.3d 270, 276 (Tex. App.—Waco

2015, pet. ref’d). The intentionally fleeing party need only know that a peace officer was

trying to lawfully arrest or detain him. Rodriguez v. State, 799 S.W.2d 301, 302-03 (Tex.

Crim. App. 1990); Thompson v. State, 426 S.W.3d 206, 209 ((Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d). See Dancy v. State, No. 01-16-00145-CR, 2017 Tex. App. LEXIS

64, at *3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2017, no pet.) (mem. op., not designated

for publication).


       Based on the evidence and reasonable inferences that may be drawn therefrom,

the fact finder could have rationally found the essential elements of the offense of evading

arrest or detention while operating a motor vehicle beyond a reasonable doubt. Viewing

the evidence in a light most favorable to the judgment and deferring as we must to the

fact finder’s credibility assessments, the proof permitted the jury to find that Appellant fled

from Officer Edwards knowing he was a police officer because during the first encounter,

Officer Edwards was in full uniform and was standing beside his patrol car with his
                                              5
red/blue emergency lights activated and his service weapon drawn. After Appellant

ignored Officer Edwards’s commands, he returned to his van and drove away after telling

the officer he did not have time for the traffic stop. Officer Edwards then pursued him with

activated red/blue emergency lights and siren. Nevertheless, Appellant continued to drive

the van for more than three blocks before stopping on a dirt road. See Fernandez v.

State, No. 07-16-00420-CR, 2017 Tex. App. LEXIS 5315, at *5 (Tex. App.—Amarillo June

12, 2017, pet. ref’d) (mem. op., not designated for publication) (“Proof of the attempt of

an officer in a police vehicle to arrest or detain a person generally consists of an officer

displaying authority by use of overhead or emergency lights and siren.”). See also Moore

v. State, No. 02-09-00192-CR, 2010 Tex. App. LEXIS 9234, at *20-22 (Tex. App.—Fort

Worth Nov. 18, 2010, pet. ref’d) (mem. op., not designated for publication) (that defendant

continued to flee after patrol car overhead lights were engaged is sufficient evidence of

an offense). “‘Fleeing is anything less than prompt compliance with an officer’s direction

to stop.’” Fernandez, 2017 Tex. App. LEXIS 5315, at *5 (quoting Horne v. State, 228

S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)).


       Therefore, based upon the record, there was sufficient evidence that Appellant

intended to evade Officer Edwards when he pulled away in the van after his first encounter

and continued driving more than three blocks without stopping when Officer Edwards was

in pursuit with his lights flashing and siren activated. This is particularly so given his

comment during his first encounter before driving away, i.e., that “he didn’t have time for

this shit.” See Moore, 2010 Tex. App. LEXIS 9234, at *20-22. Appellant’s first issue is

overruled.




                                             6
      ISSUE TWO—ENHANCEMENT

      Section 12.42(d) of the Texas Penal Code states as follows:


      [I]f it is shown on the trial of a felony offense other than a state jail felony
      punishable under Section 12.35(a) that the defendant has previously been
      finally convicted of two felony offenses, and the second previous felony
      conviction is for an offense that occurred subsequent to the first previous
      conviction having become final, on conviction the defendant shall be
      punished by imprisonment in the Texas Department of Criminal Justice for
      life, or for any term of not more than 99 years or less than 25 years.


(Emphasis added).


      To properly apply this habitual-offender statute to enhance a defendant’s range of

punishment, the State must prove: (1) the first conviction became final; (2) the offense

leading to the later conviction was committed; (3) the later conviction became final; and

(4) the defendant subsequently committed the offense for which he presently stands

accused. See Davy v. State, 525 S.W.3d 745, 751 (Tex. App.—Amarillo 2017, pet. ref’d).

See also Hunter v. State, 513 S.W.3d 638, 642 (Tex. App.—Houston [14th Dist.] 2016,

no pet.) (citing Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016)). Further,

if there is no affirmative evidence in the record showing a plea of “true” to the

enhancement, as here (in part), the State is required to prove these elements beyond a

reasonable doubt. Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016).


      There is no specific manner of proof required to establish an enhancement under

the habitual-offender statute. Id. The State may introduce documents, admissions or

stipulations, or testimonial evidence sufficient to prove that the defendant was convicted

of the enhancement. Id. The trier of fact is allowed to consider all the evidence from

each source to determine whether the State has met its burden to prove the enhancement

allegation. Id. However, if there is no evidence proving the offenses were committed and

                                             7
became final in the proper sequence, then we must reverse the assessment of

punishment and remand for a new punishment hearing, without conducting a harm

analysis. Hunter, 513 S.W.3d at 642 (citing Jordan v. State, 256 S.W.3d 286, 290-93

(Tex. Crim. App. 2008)).


       Prima facie proof of a prior conviction is made by introduction of the prior judgment

and sentence. Davy, 525 S.W.3d at 752. Once the State makes prima facie proof of an

enhancement conviction, finality of the conviction is presumed if the record is silent

regarding finality. Id. (citing Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007)).

In such circumstances, the defendant then assumes the burden of proving the conviction

was not final. Id.; Ashley v. State, 527 S.W.2d 302, 305 (Tex. Crim. App. 1975) (“when a

conviction appears to be final on its face, the burden of showing the same to be not final

is on the defendant).


       Having already found that the evidence was sufficient to establish the primary

offense, we also find that the State’s evidence was sufficient to establish that the prior

felony offense committed in New Mexico in 2000 was “final.”2 In support of both prior

convictions, the State introduced “pen packets” including judgments for the convictions

alleged.3 The judgments reflected that the prior convictions were considered felonies

under state law, i.e., conviction for residential burglary (third degree felony in New Mexico)

and burglary (second degree felony in Texas). Moreover, Detective Cassie Crandell, a

fingerprint expert, testified Appellant’s fingerprints matched the fingerprints on the “pen

packets.”    In addition, the pen packets contained a photograph of the convicted


       2 There was no record evidence that Appellant filed a notice of appeal. See Davy, 525 S.W.3d at
752 (“Absent a notice of appeal, a conviction is final on the date the sentence is imposed.”).

       3 Typically, a “pen packet” is a certified document containing identifying information such as

photographs and fingerprints of an incarcerated individual and any applicable judgments.
                                                     8
defendant. There was no evidence of any appeal, in either case. In the absence of any

evidence controverting the presumption of finality, we find this evidence sufficient to

support the jury’s verdict and Appellant’s sentence. Williams v. State, 356 S.W.3d 508,

517 (Tex. App.—Texarkana 2011, pet. ref’d). Appellant’s second issue is overruled.


      Furthermore, to the extent that Appellant might be asserting that there was a defect

in the court’s punishment charge because it did not include an application paragraph

requiring the jury to find that the September 2000 New Mexico burglary conviction

became “final” prior to the commission of the April 2008 Texas burglary conviction, we

find he waived that complaint by failing to object to that omission. See TEX. R. APP. P.

33.1(a)(1); TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).


      Additionally, any failure to include a correct application paragraph would have been

harmless error because the Charge on Punishment did contain a correct abstract

statement of the law applicable to double enhancements.            Specifically, the charge

provides as follows:


      The State alleges that the defendant was convicted on April 22, 2008, for
      the felony offense of burglary in Cause No. 2520 in the 287th District Court
      of Bailey County, Texas, which said conviction had become a final
      conviction prior to the commission of the offense for which you have just
      found [the Appellant] guilty.

      The State further alleges that the defendant was convicted on September
      1, 2000, for the felony offense of residential burglary in Cause No. D-0101-
      CR-2000-513, in the 1st Judicial District Court, County of Santa Fe, New
      Mexico, which said conviction had become a final conviction prior to the
      commission of the offense for which you have just found him to be guilty
      and prior to the commission of the offense of burglary in Cause No. 2520 in
      the 287th District Court of Bailey County, Texas.

      You are instructed that if you find beyond a reasonable doubt that this
      defendant is the same person who was convicted in cases described in the
      foregoing paragraphs and that such convictions occurred as alleged, then
      you will find that the allegations are true and so state in your verdict and you
      will assess punishment at confinement in the Institutional Division of the
                                             9
       Texas Department of Criminal Justice for life or for any term of not more
       than 99 years or less than 25 years.



(Emphasis added). Accordingly, we find that the charge error, if any, was harmless. See

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). See also Vasquez v. State, 389

S.W.3d 361, 368 (Tex. Crim. App. 2012) (finding charge error regarding the abstract

portion of court’s charge to be subject to harm analysis).


       CONCLUSION

       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                       Justice


Do not publish.




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