                                      NO. 12-10-00164-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

RODNEY JACKSON,                                      §             APPEAL FROM THE 7TH
APPELLANT

V.                                                   §             JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             §             SMITH COUNTY, TEXAS


                                       MEMORANDUM OPINION
       Rodney Jackson appeals from his conviction for evading arrest or detention. In two
issues, Appellant argues that the sentence imposed is illegal and that the evidence is legally
insufficient to support his conviction. The State concedes error. We reverse and remand for a
new sentencing hearing.


                                                BACKGROUND
       A Smith County grand jury indicted Appellant for the offense of evading arrest or
detention.1 The indictment alleged that Appellant intentionally fled from a person he knew to be
a peace officer attempting to lawfully arrest or detain him. As alleged, the offense was a third
degree felony because the grand jury alleged that Appellant had a previous conviction for
evading arrest or detention and because he used a vehicle in his flight. 2 The grand jury also
alleged that Appellant had a previous conviction for the felony offense of aggravated robbery.
       Appellant pleaded not guilty to the offense, but he waived his right to trial by jury for the


       1
           See TEX. PENAL CODE ANN. § 38.04 (Vernon Supp. 2010).
       2
           See id. § 38.04(b)(2)(A) (Vernon Supp. 2010).

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sentencing phase of the trial. The trial court instructed the jury to find Appellant guilty if it
found, beyond a reasonable doubt, that Appellant fled from a specific peace officer while using a
vehicle and while knowing that the officer was attempting to lawfully arrest or detain him. The
jury found Appellant guilty.
           During the sentencing phase of the trial, the State presented evidence that Appellant had a
prior conviction for evading arrest or detention and that he had a prior conviction for aggravated
robbery, each as alleged in the indictment. The trial court found those allegations to be true,
found Appellant guilty of a second degree3 felony, and assessed a sentence of imprisonment for
fifteen years. This appeal followed.


                                    PROOF OF ELEMENTS OF OFFENSE
           In his first and second issues, Appellant argues that the sentence in this case is illegal and
there was no evidence submitted during the guilt/innocence phase of the trial showing that he
had a prior conviction for evading arrest or detention. Appellant argues that it was error for him
to be sentenced for a second degree felony because he was convicted of a state jail felony which,
enhanced by proof of a prior aggravated robbery conviction, is a third degree felony. See TEX.
PENAL CODE ANN. § 12.35(c)(2) (Vernon Supp. 2010).4
           This case is very similar to Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005). In
that case, as here, the State did not introduce evidence of a prior conviction for evading arrest or
detention during the guilt/innocence phase of the trial but did introduce that evidence at the
punishment hearing. Id. at 233. The court in Calton held that proof of a prior conviction for
evading arrest or detention was an element of the third degree felony offense. Id. at 234. As
such, it was necessary to prove the prior offense during the guilt/innocence phase of the trial. Id.
at 236.5



           3
           A third degree offense can be enhanced to a second degree felony upon proof that the defendant has a
prior conviction for a felony offense. See TEX. PENAL CODE ANN. § 12.42(a)(3) (Vernon Supp. 2010).
           4
           This enhancement depends on the underlying previous conviction being one of several enumerated
offenses. See TEX. PENAL CODE ANN. § 12.35(c)(2). The pen packet offered by the State contains a judgment that
shows Appellant was convicted of aggravated robbery, although the code section handwritten on the judgment is for
the offense of robbery.
           5
           In response to one of the State’s arguments, the court noted that “[i]f the Legislature believes that our
result today prejudices defendants, it may remedy the problem by revising the language of its statute.” Calton, 176

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         In this case, there was no evidence of a prior conviction in the guilt/innocence phase of
the trial. The trial court instructed the jury on the offense as a state jail felony because the
definition provided included the element of a vehicle but did not include the element of a prior
conviction for evading arrest. See TEX. PENAL CODE ANN. § 38.04(b)(1)(B) (Vernon Supp.
2010). Therefore, the evidence is insufficient to support a conviction based on a third degree
felony offense of evading arrest. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781,
2786–87, 61 L. Ed. 2d 560 (1979) (No rational juror could, or indeed did, find that Appellant had
a previous conviction for evading arrest or detention.); Calton, 176 S.W.3d at 234 (“The plain
language of § 38.04 reveals that a prior conviction for evading arrest is an element of the offense
of third-degree evading arrest. It, therefore, must be proved at the guilt phase of trial.”). The
State concedes, based on the Calton decision and Appellant’s arguments, that “harmful
reversible error occurred” and joins Appellant’s request for a new sentencing hearing.
Accordingly, we sustain Appellant’s first and second issues.


                                                    DISPOSITION
         We reverse Appellant’s conviction for a second degree felony offense and remand for a
new sentencing hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp. 2010).




                                                                       SAM GRIFFITH
                                                                              Justice


Opinion delivered May 18, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



S.W.3d at 236. The legislature has revised the statute in the intervening years. In 2009, the legislature raised the
baseline offense from a Class B offense to a Class A offense and reorganized the statute, but did not change the
language held by the court of criminal appeals to make the prior conviction an element of the third degree felony.
See Act of May 27, 2009, 81st Leg, R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4386.

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