Affirmed and Memorandum Opinion filed November 8, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00656-CR

                  DEXTER JOSEPH MALLORY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1411571

                 MEMORANDUM                      OPINION
      Dexter Joseph Mallory was indicted for evading arrest or detention in a
motor vehicle, a third-degree felony, enhanced by two previous felony convictions.
See Tex. Penal Code Ann. § 38.04 (West 2011). He pleaded not guilty to the
primary offense and true to the two enhancement paragraphs. The jury found him
guilty and sentenced him to 35 years’ imprisonment. On appeal, appellant contends
his sentence is illegal because one of the two enhancement convictions was a state-
jail felony and could not be used to enhance his sentence. We affirm.
                                  BACKGROUND
      Two police officers saw appellant driving erratically one evening in
December 2013. They turned on their car’s lights to initiate a traffic stop.
Appellant did not stop. Instead, he led them on an eight-mile chase that ended
when he lost control of the stolen vehicle he was driving and wound up in a ditch.

      A grand jury indicted appellant for unlawfully and intentionally fleeing in a
motor vehicle from a person he knew to be a peace officer while the officer was
lawfully attempting to detain him. The indictment includes two enhancement
paragraphs:

      Before the commission of the offense alleged above, (hereafter styled
      the primary offense), on AUGUST 23, 2005, in Cause Number
      1034705, in the 351st DISTRICT COURT of HARRIS County,
      Texas, the Defendant was convicted of the felony of FELON IN
      POSSESSION OF A WEAPON.

      Before the commission of the primary offense, and after the
      conviction in Cause Number 1034705 was final, the Defendant
      committed the felony of EVADING ARREST – SECOND
      OFFENDER and was finally convicted of that offense on APRIL 24,
      2008, in Cause Number 1145786, in the 351st DISTRICT COURT of
      HARRIS County, Texas.

Appellant pleaded true to each enhancement paragraph. Due to those
enhancements, appellant faced a sentence of 25 years to life in prison if found
guilty. See Tex. Penal Code Ann. § 12.42(d) (West 2011).

      The jury found appellant guilty and sentenced him to 35 years in prison. The
trial court signed the judgment of conviction on the jury’s verdict. We will refer to
this conviction as the “2015 Evading Conviction.”




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                              LEGALITY OF SENTENCE
       In his sole issue on appeal, appellant asserts the conviction identified in the
second enhancement paragraph, which we refer to as the “2008 Evading
Conviction,” was not eligible to be used to enhance his sentence for the 2015
Evading Conviction because it was for a state-jail felony. Because only the
conviction for felon in possession of a weapon could enhance his sentence, he says,
his sentence of 35 years is outside the authorized punishment range and therefore
illegal. See id. § 12.33.

I.     Legal standards
       A defendant has an “absolute and nonwaivable right to be sentenced within
the proper range of punishment established by the Legislature.” Speth v. State, 6
S.W.3d 430, 532–33 (Tex. Crim. App. 1999). A sentence outside the authorized
range of punishment, whether too low or too high, is illegal. Mizell v. State, 119
S.W.3d 804, 806 & n.7 (Tex. Crim. App. 2003); Baker v. State, 278 S.W.3d 923,
926 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). An illegal sentence has no
legal effect. Mizell, 119 S.W.3d at 806; Baker, 278 S.W.3d at 927. Any court with
jurisdiction may take notice and take action on an illegal sentence at any time.
Mizell, 119 S.W.3d at 806; Baker, 278 S.W.3d at 927.

       If the 2008 Evading Conviction was for a state-jail felony, as appellant
contends, it may not be used to enhance the punishment for the 2015 Evading
Conviction, and the authorized range of punishment in this case is two to 20 years
in prison. See Tex. Penal Code Ann. §§ 12.33, 12.42(a). If the 2008 Evading
Conviction was for a third-degree felony, as the trial court found and the State
contends, it may be used to enhance punishment for the 2015 Evading Conviction,
and the authorized range of punishment in this case is 25 years to life in prison. See
id. § 12.42(d).

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II.   Was the 2008 Evading Conviction for a state-jail felony or a third-
      degree felony?
      The judgment for the 2008 Evading Conviction was admitted into evidence.
Under a plea-bargain agreement with the State, appellant pleaded guilty to
“EVADE ARREST – 2ND OFFENDER” and pleaded true to the sole
enhancement paragraph. The judgment recites the offense is a third-degree felony.
Appellant was sentenced to two years’ imprisonment.

      A.    Law governing the 2008 Evading Conviction
      The 2008 Evading Conviction is governed by the version of section 38.04 of
the Penal Code effective from September 1, 2001 until August 31, 2009 (the “2008
Law”). The 2008 Law provided in relevant part:

      (a)   A person commits an offense if he intentionally flees from a
            person he knows is a peace officer attempting lawfully to arrest
            or detain him.

      (b)   An offense under this section is a Class B misdemeanor, except
            that the offense is:
            (1)   a state jail felony if the actor uses a vehicle 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:

                  (A)   the actor uses a vehicle while the actor is in flight
                        and the actor has been previously convicted under
                        this section; or

                  (B)   another suffers serious bodily injury as a direct
                        result of an attempt by the officer from whom the
                        actor is fleeing to apprehend the actor while the
                        actor is in flight; or

            (3)   a felony of the second degree if another suffers death as a
                  direct result of an attempt by the officer from whom the

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                      actor is fleeing to apprehend the actor while the actor is
                      in flight.

Tex. Penal Code Ann. § 38.04(a), (b) (West 2001). Thus, the 2008 Law created
four offense levels of evading arrest or detention: Class B misdemeanor, state-jail
felony, third-degree felony, or second-degree felony. Id.1

       B.      Increased offense level versus enhanced punishment
       Despite the judgment’s description of the offense underlying the 2008
Evading Conviction as a third-degree felony, appellant asserts it was merely a
state-jail felony punishable as a third-degree felony under a provision of the repeat-
and-habitual-offender statutory scheme. See Tex. Penal Code Ann. § 12.425(a) (a
defendant who is convicted of a state-jail felony and who has previously been
finally convicted of two state-jail felonies shall be punished for a third-degree
felony).

       The Court of Criminal Appeals rejected the same assertion in 2005,
interpreting the same version of 38.04 as was in effect in 2008. See Calton v. State,
176 S.W.3d 231 (Tex. Crim. App. 2005). Calton was indicted for third-degree
evading arrest due to his use of a vehicle during flight and a previous conviction
for evading arrest. See id. at 232. The State did not introduce evidence of the
previous evading-arrest conviction in the guilt-innocence phase, and the jury was
not asked to find whether Calton was previously convicted of evading arrest. Still,
the jury found Calton “guilty as alleged in the indictment.” Id. at 233. At the
conclusion of the punishment phase, the jury found the previous evading-arrest
conviction was true. See id.

1
  Other statutes similarly create more than one level of offense depending on certain facts. E.g.,
Tex. Penal Code Ann. § 31.03(e) (seven offense levels of theft depending on value of property
stolen and previous theft convictions) (West Supp. 2016); § 49.09 (four offense levels of driving
while intoxicated depending on injury to other people and previous DWI convictions) (West
Supp. 2016).
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      On appeal, Calton asserted his sentence was illegal because the State failed
to prove the previous conviction for evading arrest, an essential element of the
offense. The court of appeals agreed with Calton and held the previous evading-
arrest conviction is an element of third-degree evading arrest and, therefore, must
be proved in the guilt-innocence phase of trial. See id. The Court of Criminal
Appeals affirmed the court of appeals’ judgment.

      The high court began by explaining the nature and effect of a previous
conviction used to enhance punishment after being convicted of the charged
offense:

      A prior conviction alleged for enhancement “is not really a component
      element of the primary offense.” Instead, it is “an historical fact to
      show the persistence of the accused, and the futility of ordinary
      measures of punishment as related to him. An enhancement
      “increase[s] the punishment range to a certain range above that
      ordinarily prescribed for the indicted crime. It does not change the
      offense, or the degree of the offense, of conviction. There can be no
      enhancement until a person is first convicted of an offense of a certain
      degree.
Id. at 233–34 (quotations and alteration in original).

      A prior conviction used to enhance punishment on the charged offense is
different than a prior conviction that is an element of the charged offense, without
which the defendant may not be convicted of the charged offense. See id. at 234.
To determine whether a given fact is an element of the offense, the court looks to
the plain language of the statute and applies that language if possible. Id. Only if
the language is ambiguous or leads to an absurd result the Legislature could not
possibly have intended should the court consult extra-textual sources to determine
if the fact is an element of the offense. Id.




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      The Calton court analyzed the language of section 38.04 and concluded the
prior evading-arrest conviction required by subsection (b)(2)(A) is an element of
the offense of third-degree evading arrest:

      The plain language of this statute demonstrates that the third-degree
      offense of evading arrest is committed when a person (1) intentionally
      (2) flees (3) from a person (4) he knows is a peace officer
      (5) attempting to lawfully arrest or detain him and (6) the actor uses a
      vehicle in flight and (7) the actor has been previously convicted of
      evading arrest. There is nothing ambiguous about this statute. It
      defines third-degree evading arrest as occurring when the actor has
      previously been convicted of evading arrest. A conviction for this
      offense cannot occur until this element is proved. The statute does not
      set forth a higher punishment range for the offense when the prior
      conviction is proved. Instead, it requires proof of the prior conviction
      for the third-degree felony conviction to occur.

Id. at 234.

      C.      2008 Evading Conviction based on third-degree felony
      The written judgment for the 2008 Evading Conviction describes the
underlying offense as “EVADE ARREST – 2ND OFFENDER.” Judgments are
presumed to be regular and correct absent proof that they are incorrect. Breazeale
v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh’g). The record
provides no basis to believe the written judgment for the 2008 Evading Conviction
is inaccurate, not does appellant suggest the judgment does not accurately reflect
the actual conviction.

      “EVADE ARREST – 2ND OFFENDER” appears to refer to section
38.04(b)(2)(A), the subsection at issue in Calton, which classifies evading arrest as
a third-degree felony if the person uses a vehicle while in flight and has been
previously convicted of evading arrest. See Tex. Penal Code Ann. § 38.04(b)(2)(A)
(West 2001). Based on the analysis and holding in Calton, we conclude the 2008


                                          7
Evading Conviction was for a third-degree felony, not a state-jail felony. The
punishment of 35 years’ imprisonment is not illegal because it falls within the
permissible punishment range of 25 years to life in prison. We overrule appellant’s
sole issue.

                                   CONCLUSION
       We affirm the judgment of the trial court.




                                      /s/       Sharon McCally
                                                Justice



Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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