
 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




PD-0441-04

ALLEN FITZGERALD CALTON, Appellant

v.

THE STATE OF TEXAS


ON DISCRETIONARY REVIEW OF CASE 02-02-0245-CR
OF THE SECOND COURT OF APPEALS
TARRANT COUNTY

Womack, J., filed a dissenting opinion, in which Keller, P.J., Holcomb, and
Cochran, JJ., joined.


	I agree with the Court's opinion (ante, at 5); "There is nothing ambiguous about the
statute." The question is whether the unambiguous language that moves an offense of evading
arrest from the misdemeanor classification into the felony classification is an element of the
offense.
	"Evading arrest or detention" is an offense under Section 38.04 of the Penal Code, the
relevant parts of which read:
		(a) A person commits an offense if he intentionally flees from a person he
knows is a peace officer attempting 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 actor is fleeing to
apprehend the actor while the actor is in flight.

	The appellant was convicted of the third-degree felony level of the offense, which
required proof of the terms in Subsections (a) and (b)(2)(A).
	The Court's opinion lists the seven things that are required to be proved in such a case.
Then it says that the unambiguous statute "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 has been proved."
	The last sentence seems to me to assume the thing that it to be proven: that this required
fact is an "element." To support the conclusion that the fact is an element, the opinion advances
nothing more than that it is required. But a mere requirement of proof does not an element make.
	 "Element of offense" is defined by Section 1.07(a)(22) of the Penal Code as:
		"(A)  the forbidden conduct;
		("B)  the required culpability;
		"(C) any required result; and
		("D) the negation of any exception of the offense."
As one parses the terms in Section 38.04 in the order in which they appear, one sees clearly that
some are elements.
	"Intentionally" is required culpability. See Section 6.02, which is captioned "Requirement
of Culpability," and which begins, "(a) Except as provided in Subsection (b), a person does not
commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence
engages in conduct as the definition of the offense requires." Therefore it is an element.
	"Flees from" is forbidden conduct. See Sections 1.07(a)(10) ("'Conduct' means an act or
omission and its accompanying mental state and 6.01(a) ("A person commits an offense only if
he voluntarily engages in conduct, including an act, an omission or possession"). Therefore it is
an element.
	"A person he knows is a peace officer attempting to arrest or detain him" is an interesting
term that can be seen as both required culpability (a particular knowledge) and a circumstance
surrounding the offense if, as seems likely, there in fact must have been a peace officer who was
attempting to lawfully arrest or detain him. Therefore this is an element.
	"The actor (1) uses a vehicle while the actor is in flight" is conduct, and therefore an
element.
	The two remaining terms, which are at issue in this case, are complementary possibilities
in cases in which the conduct of using a vehicle while in flight has been proved. Such an actor
either "has not been previously convicted under this section," in which case the offense is a state
jail felony under Subsection (b)(1), or "has been previously convicted under this section," in
which case the offense is a felony of the third degree under Subsection (b)(2)(A). What are these
terms?
	They are not conduct, they are not culpability, they are not a result, and they do not
negative an exception. In the plain language of the statute, they are not elements. For the purist,
who goes no further when there is no ambiguity in the plain language of the statute, the issue of
the prior conviction's being an element of the offense is concluded.
	What is this fact question, if not an element? It seems to me that it is an enhancement.
That word is not defined in the Penal Code, but the caption of Section 49.09 ("Enhanced
Offenses and Penalties") indicates that the Code provides for enhancements of offenses and of
penalties.
	"Offenses," Section 12.02 says, "are designated as felonies or misdemeanors." In each of
these designations, offenses are classified into categories according to the relative seriousness of
the offense. Felonies are classified into categories of capital, first degree, second degree, third
degree, and state jail; (2) misdemeanors, into categories of A, B, and C. (3) To each classification,
"ordinary punishments" are assigned, (4) and "exceptional sentences" are provided. (5)
	I suggest that the exceptional sentences are "enhanced penalties." They include "penalties
for repeat and habitual felony offenders" under which prior convictions for felonies enhance the
penalties for felonies, (6) and "penalties for repeat and habitual misdemeanor offenders" under
which prior convictions for felonies or misdemeanors enhance misdemeanor penalties without
changing the misdemeanor offenses to felony offenses. (7) They also include enhanced penalties for
offenses "committed because of bias or prejudice," (8) "certain offenses resulting in loss to nursing
and convalescent homes," (9) and offenses that were committed by use of a controlled substance; (10)
the structure of which is that proof of the enhancing fact increased the penalty to the next higher
category of classification, except that if the offense is a Class A misdemeanor of a first-degree
felony, the classification remains the same and a higher minimum punishment is provided.
	Enhancement of offenses from a misdemeanor designation to a felony designation by
allegation and proof of prior conviction is provided for particular offenses. One is the offense of
theft, which would otherwise be a misdemeanor, that is enhanced to a felony classification when
the defendant has been previously convicted two or more times of theft. (11) Others are the offenses
of driving, flying, boating, and operating an amusement ride while intoxicated, which are
enhanced from misdemeanors to felonies if the person has been convicted twice previously of a
related offense, or convicted once previously of intoxication manslaughter. (12)
	The offense of evading arrest may be classified as a misdemeanor or a felony, and the
difference is made by an element of the offense, namely the conduct of using a vehicle while the
actor is in flight. The fact of a vehicle user's prior conviction enhances the penalty within the
felony classification from the lowest felony level to the next higher. I would conclude, therefore,
that under the plain language of the statutes the prior conviction is not an element of the offense,
and that the prior conviction is a penalty enhancement.
	What difference does this make? These distinction between an element and an enhancement can be important because of Articles 36.01 and 37.07 of the Code of Criminal Procedure,
which provide for the order of proceeding in a jury trial of any criminal action. The first step in
Article 36.01(a) is:
	1.  The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and
are not jurisdictional, that portion of the indictment or information reciting such
convictions shall not be read until the hearing on punishment is held as provided
in Article 37.07. (13)

The final step is:
	8.  In the event of a finding of guilty, the trial shall then proceed as set forth in
Article 37.07. (14)

	Since the amendment of these statutes took effect in 1966, criminal trials in the district
and county-level courts have been "bifurcated" into guilt and punishment hearings, and the
reading and proof of an enhancement allegation in a charging instrument has been postponed to
the punishment hearing -- with one exception: the enhancement allegation that is "jurisdictional."
	The enhancement that may be "jurisdictional," as Article 36.01(a)(1) puts it, is the kind
that enhances an offense from a misdemeanor classification to a felony classification. Since the
district courts of Texas generally have original jurisdiction of criminal cases of the grade of
felony, (15) while the county courts generally have original jurisdiction of misdemeanors, (16) an
allegation of a prior conviction that enhanced an offense from a misdemeanor designation to a
felony designation would be "jurisdictional"in the trial of a case in most district courts.
	In this particular case, there was no possibility of the enhancement allegation's being
jurisdictional, because the case was tried in a court that had jurisdiction of misdemeanors as well
as felonies, namely the Tarrant County Criminal District Court No. 4. That court, in addition to
"the jurisdiction provided by the constitution and the general laws of this state for district
courts" (17) and "the jurisdiction provided by other law," (18) also "has concurrent jurisdiction with the
county criminal courts in Tarrant County over misdemeanor cases." (19) Therefore neither allegation
of a prior conviction was "jurisdictional" in the meaning of Article 36.01(a)(1).
	The actual jurisdiction of the trial court has not been discussed in the Court of Appeals'
opinion, the petitions and briefs in this Court, or in this Court's opinion. I believe it disposes of
the State's argument that the enhancement allegation of the prior conviction for evading arrest
was jurisdictional, since there could have been no jurisdictional effect in this trial.
	I believe that the Court of Appeals erred in holding that the allegation of the prior offense
was an element of the offense, and I am sure that it was not alleged for jurisdiction. I would,
therefore, reverse the judgment of the Court of Appeals and affirm that of the Criminal District
Court.

En banc.
Delivered November 2, 2005.
Publish.
1.  "'Actor' means a person whose criminal responsibility is in issue in a criminal action." Penal Code §
1.07(a)(2).
2.  Id., § 12.04.
3.  Id., § 12.03.
4.  See id., chapter 12, subchapters B ("ordinary misdemeanor punishments") and  C ("ordinary felony
punishments").
5.  See id., subchapter D.
6.  See id., § 12.42.
7.  See id., § 12.43.
8.  See id., § 12.47.
9.  See id., § 12.48.
10.  See id., § 12.49.
11.  Id., § 31.03(e)(4)(D).
12.  Id., § 49.09(b).
13.  Code Crim. Proc. art. 36.01(a)(1).
14.  Id., art. 36.01(a)(8).
15.  See Code Crim. Proc. art. 4.05.
16.  See id., art. 4.07. The statutes that create some county courts give them jurisdiction of felony cases.
17.  Gov't Code § 24.309 (made applicable to the Tarrant County Criminal District Court No. 4 by id., §
24.913(e)).
18.  Id., § 24.913(e).
19.  Ibid.

