                                  NO. 12-13-00264-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

AARON THOMPSON,                                  §      APPEAL FROM THE 3RD
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Aaron Thompson appeals his conviction for evading arrest or detention with a vehicle.
He raises two issues on appeal. We modify and affirm as modified.


                                         BACKGROUND
       A Houston County grand jury indicted Appellant for the offense of evading arrest or
detention with a vehicle. Appellant pleaded “not guilty,” and a jury trial was held. The jury
found Appellant guilty and assessed punishment at two years of confinement and no fine. This
appeal followed.


                                    LEGALITY OF SENTENCE
       In his first issue, Appellant contends that his sentence is illegal and void because he
received a state jail felony sentence when he “should have been sentenced in the range of
punishment for a [third] degree felony.” As a result, Appellant contends that he is entitled to a
new punishment hearing. The State‟s brief is silent on this issue.
Preliminary Matter
       Appellant was charged with evading arrest or detention with a vehicle under Section
38.04 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 38.04 (West Supp. 2013).
Multiple amendments were made to this statute during the 2011 legislative session that changed
the conduct required for state jail and third degree felonies. See id. Therefore, we must first
determine whether the offense with which Appellant was charged was a state jail felony or a
third degree felony before we address the merits of his argument.
       When multiple amendments are made to the same section or subsection of a statute, the
courts should harmonize the amendments unless they are irreconcilable. TEX. GOV‟T CODE ANN.
§ 311.025(b) (West 2013); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 75 (Tex. App.—
Texarkana 2004, pet. denied). If the amendments cannot be harmonized, the amendment enacted
last will prevail. TEX. GOV‟T CODE ANN. § 311.025(b). Statutory interpretation is a question of
law, and our review is de novo. Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).
       The Amendments
       As a result of multiple amendments in the 2011 legislative session, the Texas Penal Code
has two different punishment schemes for the offense of evading arrest. Both schemes are
codified in Section 38.04. See TEX. PENAL CODE ANN. § 38.04. To illustrate the effect of the
amendments, we have modified the text of Section 38.04(b) as follows:


              (b) An offense under this section is a Class A misdemeanor, except that the
              offense is:

              ...

                (1) a state jail felony if:

                    (A) the actor has been previously convicted under this section; or
                    (B) the actor uses a vehicle or watercraft 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 or watercraft 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 or investigator from whom the actor is fleeing to
                        apprehend the actor while the actor is in flight; or


See TEX. PENAL CODE ANN. § 38.04 (emphasis added). The underlined text reflects amendments
made by House Bill 3423 and Senate Bill 496 during the 2011 legislative session. See Act of
May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011 Tex. Gen. Laws 1046, 1046-47 (West) (to be
codified at TEX. PENAL CODE ANN. § 38.04(b)); Act of May 24, 2011, 82nd Leg., R.S., ch. 839,



                                                       2
§ 4, 2011 Tex. Gen. Laws 2110, 2111 (West) (to be codified at TEX. PENAL CODE ANN.
§ 38.04(b)). Senate Bill 1416 amended subsection (b) as it pertains to state jail and third degree
felony evading arrest as follows:

               (b) An offense under this section is a Class A misdemeanor, except that the
               offense is:
                         (1) a state jail felony if [:
                                   [(A)] the actor has been previously convicted under this
               section; [or
                                   [(B)] 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
                                   (C) the actor uses a tire deflation device against the officer
               while the actor is in flight . . . .


Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Gen. Laws 2321, 2322 (West) (to
be codified at TEX. PENAL CODE ANN. § 38.04(b)).
       The Fort Worth court of appeals has examined the amendments to Section 38.04 in depth
and concluded that the amendments made by Senate Bill 496, House Bill 3423, and Senate Bill
1416 are reconcilable. Adetomiwa v. State, 421 S.W.3d 922, 927 (Tex. App.—Fort Worth 2014,
no pet.). We agree.
       Each of the amendments made to Section 38.04(b) as they pertain to state jail and third
degree felonies for evading arrest affected different parts of subsection (b). These amendments
do not conflict.    Accordingly, they may be read together.                     See TEX. GOV‟T CODE ANN.
§ 311.025(b); Burke, 138 S.W.3d at 75. Under the amended version of the statute, the offense of
evading arrest is a third degree felony if the actor uses a vehicle in flight. See Act of May 27,
2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Gen. Laws 2321, 2322 (West) (to be codified at
TEX. PENAL CODE ANN. § 38.04(b)); Adetomiwa, 421 S.W.3d at 927.
Unauthorized Punishment
       Appellant was convicted of a third degree felony, but received a sentence of two years in
the State Jail Division of the Texas Department of Criminal Justice. Appellant argues that the
place of his imprisonment is part of his sentence, and because he was sentenced to the State Jail
Division, his sentence is void.



                                                         3
        A sentence is illegal if it is not authorized by law, and is void if it is not within the
universe of punishments applicable to the offense. Ex parte Parrott, 396 S.W.3d 531, 534 (Tex.
Crim. App. 2013); Ex parte Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App. 1985). Prior to
1985, when a jury rendered a verdict unauthorized by law and the judgment and sentence
reflected that verdict, there was no way to cure the infirmity and the judgment and sentence were
considered void. See id. at 607. But in 1985, the code of criminal procedure was amended to
give courts authority to reform judgments containing unauthorized punishments in certain
circumstances. See id.
        Article 37.10 of the code of criminal procedure provides as follows:


                If the jury assesses punishment in a case and in the verdict assesses both
                punishment that is authorized by law for the offense and punishment that is not
                authorized by law for the offense, the court shall reform the verdict to show the
                punishment authorized by law and to omit the punishment not authorized by
                law. If the trial court is required to reform a verdict under this subsection and
                fails to do so, the appellate court shall reform the verdict as provided by this
                subsection.


TEX. CODE CRIM. PROC. ANN. art. 37.10(b) (West 2006).
        The punishment range for a third degree felony is imprisonment in the Texas Department
of Criminal Justice for any term of not more than ten years or less than two years and a possible
fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.34(a), (b) (West 2011). Here, the
jury‟s verdict states Appellant‟s punishment as “confinement in the Texas Department of
Criminal Justice—State Jail Division for 2 years (not less than 180 days nor more than two (2)
years[)]; and in addition to such confinement, we assess a fine of $ 0.00 ($0.00 -$10,000).” The
trial court‟s judgment reflects the jury‟s verdict.
        The portion of the verdict that reads “confinement in the Texas Department of Criminal
Justice—State Jail Division” is unauthorized by law, but the jury‟s assessment of “2 years” and a
fine of “$0.00” is authorized by law because it is within the range of punishment for a third
degree felony. See id. Therefore, Appellant is correct that there is error in the jury‟s verdict.
However, he also contends that he is entitled to a new punishment hearing due to this error. We
disagree. Article 37.10 applies in this case, and authorizes this court to reform the verdict and
judgment. See TEX. CRIM. PROC. ANN. art. 37.10(b). Accordingly, we sustain Appellant‟s first
issue in part and overrule it in part.



                                                       4
                                      SUFFICIENCY OF THE EVIDENCE
        In his second issue, Appellant contends that the trial court erred by denying his request
for a directed verdict because there is no evidence that he “drove a vehicle as defined by the
Texas Transportation Code.”             We construe Appellant‟s argument as a challenge to the
sufficiency of the evidence supporting his conviction.1 Because Appellant‟s sole contention
concerns the meaning of “vehicle” as applied to the evading arrest statute, we limit our analysis
accordingly.
Standard of Review and Applicable Law
        Under the single sufficiency standard, we view the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 902 (Tex.
Crim. App. 2010). We defer to the trier of fact‟s responsibility to resolve conflicts in testimony,
weigh evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319, 99 S. Ct. at 2789. Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient
to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
        “Vehicle” as used in Section 38.04 of the penal code has “the meaning assigned by
Section 541.201, Transportation Code.”               TEX. PENAL CODE ANN. § 38.04(c)(1).                   Section
541.201(23) defines vehicle as “a device that can be used to transport or draw persons or
property on a highway. The term does not include: (A) a device exclusively used on stationary
rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201,
Occupations Code.” TEX. TRANSP. CODE ANN. § 541.201(23) (West Supp. 2013).
Discussion
        Appellant used a four-wheeler (ATV) to evade arrest in this case. He contends that the
ATV is not a “vehicle” because the evidence “clearly showed the ATV was not to be used for
transport or [to] draw[] persons or property on a highway.”                      To support this contention,
Appellant cites testimony from Eddie Lehr, the arresting game warden, who confirmed that he
had advised Appellant that it was against the law to operate an ATV on a highway. Lehr


        1
           “The standard of review applicable to a motion for directed verdict is the same as that used in reviewing
the sufficiency of the evidence.” Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989).


                                                         5
testified that under certain circumstances, the operation of an ATV on a roadway is permissible,
but those circumstances were not applicable to Appellant‟s use.
       The evidence showed that Appellant and his friend, Rhonda Musick, were pulling the
ATV out of a ditch next to Highway 7 in Houston County, Texas, when Lehr arrived. Lehr
testified that after he advised Appellant that it was illegal to operate the ATV on a public road,
he told Appellant he would follow him back to the house for safety reasons. Lehr testified
further that once the ATV was out of the ditch, he said, “I‟m going to follow you back now, first
house on the right, and [Appellant] said[,] [„]that‟s right,[‟] and I said [„]go slow[‟].” They had
gone only a short distance when Appellant “looked back,” “gassed it,” and “hit [the] woods.”
Lehr turned on his siren and followed Appellant because he “knew [Appellant] was running from
me.” When Lehr finally caught up with him, Appellant told him that the reason he ran was
because “he thought I was going to see that [the ATV] was stolen and he got nervous. . . .”
       The circumstances under which an ATV may be operated on a roadway, as related by
Lehr, are set forth in Section 663.037 of the transportation code. See generally TEX. TRANSP.
CODE ANN. § 663.037 (West 2011). Although Appellant‟s operation of the ATV did not occur
under any of these circumstances, his impermissible use does not render the transportation code‟s
definition of “vehicle” in Section 541.201(23) inapplicable or meaningless.            Appellant‟s
operation of the ATV shows that it “can be used to transport persons . . . on a highway,” and
Section 663.037 confirms an ATV‟s capability for such use on public streets, roads, and
highways. See TEX. TRANSP. CODE ANN. §§ 541.201(23), 663.037. The evidence is sufficient to
show that the ATV in this case satisfied the meaning of “vehicle” in Section 541.201(23) of the
transportation code. Accordingly, we overrule Appellant‟s second issue.


                                   ERROR IN THE JUDGMENT
       In reviewing the record, we note that the judgment reflecting Appellant‟s conviction
contains a clerical error not raised by either party. An appellate court has the power to correct
and reform a trial court‟s judgment to make the record “speak the truth” when it has the
necessary data and information before it to do so. Harris v. State, No. 12-12-00398-CR, 2013
WL 3967744, at *4 (Tex. App.—Tyler July 31, 2013, no pet.) (mem. op., not designated for
publication); Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.).




                                                6
Our authority to reform incorrect judgments is not dependent on the request of any party. See
Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.).
         Here, the judgment states that the degree of the offense is a “State Jail Felony.” As
discussed in our analysis of Appellant‟s first issue, the offense of evading arrest with a vehicle is
a third degree felony. Thus, the degree of offense should read “Third Degree Felony.”


                                                    DISPOSITION
         We have sustained Appellant‟s first issue in part and have concluded there is error in the
judgment that was not raised by either party. Accordingly, we reform the verdict to replace
“confinement in the Texas Department of Criminal Justice—State Jail Division” with
“imprisonment in the Texas Department of Criminal Justice.” See TEX. CODE CRIM. PROC. ANN.
art. 37.10(b) (authorizing appellate court to reform jury verdict on punishment when jury
assesses punishment authorized by law and punishment not authorized by law); Ex parte
Johnson, 697 S.W.2d at 608. We modify the judgment of the trial court by replacing “State Jail
Division, TDCJ” with “Texas Department of Criminal Justice Institutional Division,” and
replacing “State Jail Felony” with “Third Degree Felony” in the “Degree of Offense” portion of
the judgment. Having overruled the remaining portion of Appellant‟s first issue, as well as his
second issue, we affirm the trial court‟s judgment as modified. See TEX. R. APP. P. 43.2(b).

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered July 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 23, 2014


                                          NO. 12-13-00264-CR


                                       AARON THOMPSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 3rd District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-158)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court‟s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court‟s verdict be reformed to replace “confinement in the Texas Department of Criminal
Justice—State Jail Division” with “imprisonment in the Texas Department of Criminal Justice.”
                       It is further ORDERED, ADJUDGED and DECREED that the trial court‟s
judgment be modified by replacing “State Jail Division, TDCJ” with “Texas Department of
Criminal Justice Institutional Division,” and replacing “State Jail Felony” with “Third Degree
Felony” in the “Degree of Offense” portion of the judgment; and as modified, the trial court‟s
judgment is affirmed; and that this decision be certified to the trial court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
