












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00069-CR
                                                ______________________________
 
 
                               NORRIS SHANNON BAINES,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 217th
Judicial District Court
                                                           Angelina County, Texas
                                                            Trial
Court No. 29,109
 
                                                      
                                            
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                        Opinion by Justice Moseley




                                                                   O P I N I O N
 
            For
the sake of clarity, we withdraw our opinion rendered in the matter September
1, 2010, and issue this opinion in replacement of it. 
            Norris
Shannon Baines appeals his Angelina County conviction for the state jail felony
of evading detention and sentence of 180 days in the county jail.[1]  The State alleged Baines committed evading
detention by leading a police officer on a low-speed chase at speeds of
approximately fifteen to twenty miles per hour around a single city block.  The State sought to enhance the punishment,
alleging that Baines had previously been convicted of two prior felonies.  After Baines waived his right to a jury, a
bench trial was conducted.  The trial
court carried Baines’s motion to suppress along with the bench trial.  After the parties had rested, the trial court
reviewed the arresting officer’s in-car video recording of the incident,
recalled the police officer, and questioned the police officer concerning the
depiction of events as preserved on the video recording.  The trial court then permitted closing
arguments and oral arguments on the motion to suppress.  The trial court denied Baines’s motion to
suppress and found Baines guilty of evading detention.  At the punishment hearing, the trial court
accepted Baines’s plea of true to the enhancement paragraphs, but announced, “I’m
making no finding on the enhancements.  And
under [12.44(a)]  I’m sentencing you to
180 days in county jail . . . .”  The
trial court later explained its decision was based on the gravity and
circumstances of the offense.  
            Baines
raises three issues on appeal, arguing that the trial court erred in denying
his motion to suppress, the trial court erred by calling a witness after the
parties had rested, and the evidence is legally and factually insufficient to
support the conviction.  The State raises
a cross-point in its brief, complaining that the sentence imposed by the trial
court is illegal.
I.          The Error, if any, in
Reopening the Evidence on the Court’s Motion Is Not Preserved
            In
his first point of error, Baines argues that the trial court erred in
re-opening the evidence on its own motion. 
The Texas Code of Criminal Procedure provides that a trial court “shall
allow testimony to be introduced at any time before the argument of a cause is
concluded, if it appears that it is necessary to a due administration of
justice.”  Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007); see Peek v. State, 106 S.W.3d 72, 79
(Tex. Crim. App. 2003) (interpreting Article 36.02).  Baines contends that the trial court erred in
re-opening the evidence without a motion from either party.  Baines further contends that the additional
testimony was not necessary to the due administration of justice.  The reporter’s record provides as follows:
            [Defense
Counsel]:  Defendant would rest, Your
Honor.
 
            [Prosecutor]:  We do not have any rebuttal evidence.  Close.
 
            THE
COURT:  Roll the TV over here.  Roll the TV over here closer.
 
            [Defense
Counsel]: Yes, Your Honor.
 
            THE
COURT:  You can step down, Mr. Baines.
 
            [Defense
Counsel]:  If you want me to stop, let me
know, Judge.
 
            (DVD
Played.)
 
            THE
COURT:  Yeah, stop it and back it up
again.  Go.
 
            [Defense
Counsel]:  I think we go into slow.
 
            THE
COURT:  Yeah.  Okay. 
Back it up again.  Officer
Jackson, come up here a second.
 
                                                KEVIN
JACKSON,
 
resumed the witness stand and testified under oath
as follows:
 
                                                EXAMINATION
 
BY THE COURT: 
Hold on.  Okay.  What I want you to do is watch.  This is your car approaching the red light or
that intersection.  I can’t tell - - I
guess you’re coming up on the railroad tracks. 
I see the marker now in the turn lane.
 
            [Officer
Jackson]:  Yes, sir.
 
            THE
COURT:  What I want you to do is tell him
to stop it as soon as you think you see what you saw the truck start to move
forward.  Just tell him, stop, and we’re
going to run it slow.
 
            [Officer
Jackson]:  Stop.
 
            THE
COURT:  Okay.
 
            [Officer
Jackson]:  He’s already moving.
 
            THE
COURT:  Okay.  Can you point out the taillights to me of
what you’re showing me is the truck?  You
just have to hold it down.
 
            [Officer
Jackson]:  These are the taillights.
 
            THE
REPORTER:  I’m sorry, sir.  I can’t hear you.
 
            [Officer
Jackson]:  I said the taillights are
right there.  This is the truck before it
was -- that was green.
 
            THE
COURT:  Okay.  Back it up a little bit, [Defense Counsel],
just a couple frames if you can do that.
 
            [Defense
Counsel]:  Okay.  Let’s see.
 
            THE
COURT:  Slow it down.  Will it slow down more than that?  More than that?
 
            [Officer
Jackson]:  He was -- 
 
            THE
REPORTER:  I’m sorry.  I didn’t hear what you said.
 
            [Officer
Jackson]:  I’m sorry.  I was saying the same thing.  He was already moving.
 
            THE
COURT:  Stop.  Stop it.
 
            [Defense
Counsel]:  Okay.  Stop?
 
            THE
COURT:  Okay.  Will it slow down any more than that?
 
            [Defense
Counsel]:  It’s currently at, I think,
half or – no, it’s at a quarter.
 
            THE
COURT:  Can you slow it down any more
than that?
 
            [Defense
Counsel]:  I’m not sure.  Quarter speed is the slowest we can go,
Judge.  I can play it at a quarter.
            
            THE
COURT:  Okay.
 
            [Defense
Counsel]:  Playing at a quarter right
now.
 
            THE
COURT:  Stop.  Okay. 
That’s where the truck starts moving? 
 
            [Officer
Jackson]:  Yes, sir.
 
            THE
COURT:  Because from what I can tell --
and tell me if I’m wrong -- you cannot see the truck taillights until that
point.
 
            [Officer
Jackson]:  Yes, sir.
 
            THE
COURT:  And is that because why?  Why can’t I see them before then?
 
            [Officer
Jackson]:  Because it’s in front of this
other car.
 
            THE
COURT:  Okay.  All right. 
Go ahead.  Okay.  Back it up a little bit.
            
            [Defense
Counsel]:  Okay.
 
            THE
COURT:  Okay.  Stop. 
All right.  Thank you.
 
            [Officer
Jackson]:  Do you need me anymore, Judge.
 
            THE
COURT:  No, have a seat.
 
            Defense
counsel never objected at any point during the “examination” of Jackson by the
trial court after both parties had rested. 
In fact, it appears from the record that defense counsel participated in
that exchange between the judge and the witness by operating the device that
played the recording.  To preserve a
complaint for appellate review, Baines must have presented to the trial court a
timely request, objection, or motion stating the specific grounds for the
ruling desired.  Tex. R. App. P. 33.1. 
Any error concerning the trial court re-opening the evidence has not
been preserved for appellate review.  We
overrule Baines’s complaint that the trial court erred in re-opening the
evidence after both parties had rested.
II.        The
Trial Court Did Not Err in Denying Baines’s Motion to Suppress
            Baines alternatively argues that the
trial court erred in denying his motion to suppress because the evidence
established that the traffic light had turned green prior to Baines’s vehicle
entering the intersection.  In essence,
Baines’s argument is that Jackson lacked reasonable suspicion for the initial
detention and, therefore, any statements or other evidence tainted by the
alleged illegal detention should have been suppressed.
            Jackson,
an officer with the Lufkin Police Department, testified that he observed a
vehicle driven by Baines enter an intersection while the traffic light was red
and that the traffic light flashed green while Baines’s vehicle was in the
middle of the intersection.  Jackson
testified that observing this, he activated his overhead emergency lights in
the 300 block of Church Street, which is located behind the Brookshire Brothers
Market.  Baines then led Jackson on a
low-speed chase at speeds of approximately fifteen to twenty miles per hour around
a city block.  In doing so, Baines traveled
down Church Street going south and turned onto Kornegary going west.  Immediately after turning onto Kornegary,
Jackson observed Baines throw something into a bush.  Baines then proceeded down Kornegary to
Chestnut and then returned to Church Street on Kerr.  The chase ended at 313 Church Street, almost
where the “chase” had begun.  Jackson
estimated the total distance of the chase to be approximately a quarter of a
mile.  Baines was arrested for evading
detention.  The police later discovered
some marihuana near the location Jackson had observed Baines discard something
from his car.  Baines testified that the
traffic light was green when he proceeded through the light.   
            Our
review of the video recording reveals that due to the distance from the police
officer’s camera to the intersection and its perspective behind Baines’s car,
it is difficult to determine from it whether Baines’s vehicle had entered the
intersection against a red light.  The
in-car video recording does not clearly contradict Jackson’s testimony and the
movement of Baines’s vehicle after the traffic light turned green suggests that
Baines’s vehicle may have been in motion while the traffic light was red.  
            In
reviewing a trial court’s ruling on a motion to suppress, appellate courts must
give great deference to the trial court’s findings of historical facts, so long
as the record supports those findings.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).  Because the trial
court is the exclusive finder of fact, the appellate court reviews evidence
adduced at the suppression hearing in the light most favorable to the trial court’s
ruling.  Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).  Further, we give deference to the trial court’s
rulings on mixed questions of law and of fact when those rulings turn on an
evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  On the other hand, in circumstances where
such rulings do not turn on an evaluation of credibility and demeanor, we
review the trial court’s actions de novo. 
Id.
            Baines
argues that his detention by Jackson was not lawful because the evidence is
insufficient to establish a reasonable suspicion of unlawful activity to
justify the detention.  A routine traffic
stop closely resembles an investigative detention.  Berkemer
v. McCarty, 468 U.S. 420, 436–37 (1984). 
“If an officer has a reasonable basis for suspecting that a person has
committed a traffic offense, the officer may legally initiate a traffic stop.”  Zervos
v. State, 15 S.W.3d 146, 151 (Tex. App.––Texarkana 2000, pet. ref’d).  However, “[a]n officer’s reasonable suspicion
of an alleged traffic violation cannot be based on a mistaken understanding of
traffic laws.”  Fowler v. State, 266 S.W.3d 498, 504 (Tex. App.––Fort Worth 2008,
pet. ref’d).  
            The
Texas Transportation Code prohibits the operator of a motor vehicle from
entering an intersection when the traffic light is signaling red.  See
Tex. Transp. Code Ann. § 544.007
(Vernon Supp. 2010).  Although Baines
testified the light was showing green when he entered the intersection, Jackson
testified that the light was red and only turned green after Baines entered the
intersection.  The trial court could have
believed Jackson’s testimony instead of the testimony of Baines.  Thus, the trial court could have concluded
that Jackson observed a traffic violation and, therefore, had reasonable
suspicion for the traffic stop and detention. 
The trial court did not err in denying Baines’s motion to suppress.
III.       The Evidence Is
Sufficient
            In
his remaining points of error, Baines argues the evidence is legally and
factually[2]
insufficient to support his conviction. 
According to Baines, the low speed and short length of the chase
establishes that he was not attempting to flee Jackson.  Baines alternatively argues that the trial
court’s rejection of his defense of necessity is not supported by the
evidence.  
            We
are directed to subject challenges to the legal sufficiency of the evidence to
the hypothetically-correct jury charge analysis.  Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997).  In order to
prove its case under Section 38.04 of the Texas Penal Code, the State was
obligated to prove that (1) Baines, (2) intentionally fled, (3) from a
person that he knew was a peace officer, (4) who was attempting lawfully to
arrest or detain him.  In order to raise
the offense from the level of a class A misdemeanor to a state jail felony, it
was necessary in this case to prove that Baines employed a vehicle in his
attempt to flee.  The State offered
evidence of all of these things.
            In
reviewing the evidence for sufficiency, we consider the evidence in the light
most favorable to the verdict to 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, 318–19 (1979).  
            Section
38.04 of the Texas Penal Code criminalizes the act of intentionally fleeing
from a person the actor knows is a peace officer attempting to lawfully arrest
or detain him.  Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2010).  Baines claims the evidence is insufficient to
establish that he fled from Jackson.  
            Baines
argues the length and speed of the chase establishes he did not intentionally
flee Jackson.  We note that a chase of
this length and speed would not normally be considered evading detention.  However, the length and speed of the chase
are not the determinative factors in evaluating whether Baines evaded
detention.  The relevant inquiry is
whether there was an attempt to flee or delay the detention.  The length and speed of the chase are factors
in considering whether there was an attempt to escape, but are not
determinative by themselves.  As this
Court has noted, “under the law, fleeing slowly is still fleeing.”  Mayfield
v. State, 219 S.W.3d 538, 541 (Tex. App.––Texarkana 2007, no pet.).  The State introduced evidence that while
driving around the block, Baines discarded something and marihuana was
discovered near the location where Baines discarded something.  On cross-examination, Baines admitted that he
threw something out of his vehicle and that “[i]t was said to be marijuana.”  A reasonable person could conclude Baines was
fleeing detention while he considered what he might do with the contraband in
his vehicle.   
            Alternatively,
Baines argues the evidence is insufficient to support the conclusion his
conduct was not justified.  A person’s
actions are justified under the defense of necessity if he reasonably believed
his conduct was immediately necessary to avoid imminent harm, the desirability
and urgency of avoiding the harm clearly outweighed, according to ordinary
standards of reasonableness, the harm sought to be prevented, and no
legislative purpose existed to exclude the defense.  Tex.
Penal Code Ann. § 9.22 (Vernon 2003). 
In raising a justification, a defendant bears the burden of production,
which requires the production of some evidence that supports the particular
justification.  Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913
(Tex. Crim. App. 1991).  Once the
defendant produces some evidence, the State then bears the burden of persuasion
to disprove the raised justification beyond a reasonable doubt.  Zuliani,
97 S.W.3d at 594; Saxton, 804 S.W.2d
at 913–14. 
            Baines
admitted he did not stop immediately after Jackson had signaled him to stop,
but he argued his conduct was justified, based on the defense of
necessity.  Baines testified at trial as
follows:  
I sit through the light twice, and it didn’t
change.  The third time when it did
change, I proceeded.  And I guess about
halfway through the block, the officer turned his lights on.
 
            The
only place that I knew where someone knew me was right there on - - I guess it’s
Church Street.  And I was already passed [sic]
it, so I didn’t want to stop and put myself in a vulnerable position, because
in previous cases I hadn’t been treated fairly; and I just wanted there to be
witnesses instead of my word against the officer’s.
 
Baines later explained, in 1994,
he was imprisoned for something he did not do and “later on they found out who did
it, and they didn’t say anything to me . . . .” 
When asked if an officer had ever committed an act of violence against
him, Baines testified, “Officer David Womack stuck a gun to my head.”  On cross-examination, the State, referencing
some statements Baines made on the in-car video, asked Baines if he was “concerned
that you were wanted for the murder at that time.”  Baines responded, “No, sir.  No, sir. 
I wasn’t concerned that I was wanted for the murder.  I just knew I wouldn’t get fairly treated because
of that murder situation.”[3]  According to Baines, the house he eventually
stopped at, 313 Church Street, was the house of a friend where “it was
understood I was coming back to spend the night.”  Baines testified he had already passed his
friend’s house when Jackson activated his lights.  
            A
reasonable person could have rejected Baines’s defense of necessity.  During the chase, Baines passed a well-lit
parking lot.  Baines could have stopped
at that parking lot.  A reasonable person
could have concluded Baines was fleeing detention while he considered what he
might do with the contraband in his vehicle, rather than out of fear of the
police.  In addition, Baines admitted
that he had called the police earlier that day to report a stolen car.  Baines’s report to the police undermines his
testimony that he evaded detention because he feared the police.  Further, a reasonable person could have
concluded that an ordinary and prudent person in the same circumstances would
not hold the same belief that flight was immediately necessary.  A reasonable person could have concluded the
State met its burden of persuasion.  The
evidence is sufficient to support the trial court’s rejection of Baines’s
defense of necessity.
IV.       This Court Lacks
Jurisdiction Over the State’s Cross-Appeal
            In
its brief, the State raises a cross-issue complaining that Baines’s sentence is
an “illegal sentence.”  We note the State
failed to file a notice of appeal to perfect its cross-appeal.  Thus, we must first determine whether we have
jurisdiction to entertain the State’s cross-appeal.[4]  The issue of whether a State is required to
file a separate notice of appeal in order to bring a cross-appeal has not yet
been decided by the Texas Court of Criminal Appeals.  See
Mizell v. State, 119 S.W.3d 804, 807 (Tex. Crim. App. 2003) (declining to
decide whether notice of appeal is required for State to bring
cross-appeal).  
            The
United States Supreme Court has held the government may not bring an appeal
without express statutory authority.  United States v. Sanges, 144 U.S. 310,
313–18 (1892); State v. Moreno, 807
S.W.2d 327, 330 (Tex. Crim. App. 1991); State
v. Aguilar, 260 S.W.3d 169, 171 (Tex. App.––Houston [1st Dist.] 2008, no
pet.).  The right of the State to file an
appeal is strictly circumscribed by Article 44.01 of the Texas Code of Criminal
Procedure, which provides as follows in pertinent part:
            (a)        The state is entitled to appeal an order
of a court in a criminal case if the order:
 
            (1)        dismisses an indictment, information, or
complaint or any portion of an indictment, information, or complaint;
 
            (2)        arrests or modifies a judgment;
 
            (3)        grants a new trial;
 
            (4)        sustains a claim of former jeopardy;
 
            (5)        grants a motion to suppress evidence, a
confession, or an admission, if jeopardy has not attached in the case and if
the prosecuting attorney certifies to the trial court that the appeal is not
taken for the purpose of delay and that the evidence, confession, or admission
is of substantial importance in the case; or
 
            (6)        is issued under Chapter 64.
 
            (b)        The state is entitled to appeal a
sentence in a case on the ground that the sentence is illegal.
 
            (c)        The state is entitled to appeal a ruling
on a question of law if the defendant is convicted in the case and appeals the
judgment.
 
            (d)       The prosecuting attorney may not make an
appeal under Subsection (a) or (b) of this article later than the 20th day
after the date on which the order, ruling, or sentence to be appealed is
entered by the court.
 
            .
. . .
 
            (i)         In this article, “prosecuting attorney”
means the county attorney, district attorney, or criminal district attorney who
has the primary responsibility of prosecuting cases in the court hearing the
case and does not include an assistant prosecuting attorney. . . .
 
Tex.
Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2010).  The Texas Court of Criminal Appeals, noting
that Article 44.01 “specifically excluded an ‘assistant prosecuting attorney,’”
has interpreted Article 44.01 as requiring the “prosecuting attorney” to
personally authorize specific appeals filed on behalf of the State.  State
v. Boseman, 830 S.W.2d 588, 591 (Tex. Crim. App. 1992).
            In
addition, the Texas Rules of Appellate Procedure provide additional
requirements that the State must meet. 
Rule 25.2 provides as follows in pertinent part:
(a)        Rights to Appeal.
 
            (1)        Of the
State.  The State is entitled to appeal a
court’s order in a criminal case as provided by Code of Criminal Procedure
article 44.01.
 
            .
. . .
 
(b)        Perfection of Appeal.  In a criminal case, appeal is perfected by
timely filing a sufficient notice of appeal. . . .
 
(c)        Form and Sufficiency of
Notice.
 
            (1)        Notice
must be given in writing and filed with the trial court
clerk. . . .
 
            (2)        Notice is sufficient if it shows the
party’s desire to appeal from the judgment or other appealable order, and, if
the State is the appellant, the notice complies with Code of Criminal Procedure
article 44.01.
 
Tex.
R. App. P. 25.2.  Rule 26.2(b),
which governs the time to perfect an appeal by the State, provides that “[t]he
notice of appeal must be filed within 20 days after the day the trial court
enters the order, ruling, or sentence to be appealed.”  Tex.
R. App. P. 26.2(b).  
            The
Austin, Dallas, Beaumont, and Fort Worth Courts of Appeals have each held that
the State must file a notice of appeal in order to perfect a cross-appeal.  See,
e.g., Davis v. State, 144 S.W.3d
192, 202 (Tex. App.––Fort Worth 2004, pet. ref’d); Strong v. State, 87 S.W.3d 206, 212 (Tex. App.––Dallas 2002, pet.
ref’d); Ganesan v. State, 45 S.W.3d
197, 203–04 (Tex. App.––Austin 2001, pet. ref’d); Malley v. State, 9 S.W.3d 925, 927 (Tex. App.––Beaumont 2000, pet.
ref’d); see also Rodriguez v. State,
939 S.W.2d 211, 219 (Tex. App.––Austin 1997, no pet.).
            Contrarily,
the Fourteenth District Court of Appeals has held that a notice of appeal is
not a predicate for the State to file a cross-appeal, irrespective of from
which subsection the appeal is pursued.  McClinton v. State, 38 S.W.3d 747,
750–51 (Tex. App.––Houston [14th Dist.] 2001), pet. dism’d, improvidently granted, 121 S.W.3d 768 (Tex. Crim. App.
2003).  The court stated: 
Under the civil appellate rules, this court would
not be authorized to grant the State relief because the State did not file a
notice of appeal.  Tex. R. App. P. 25.1(c). However, the
criminal analog has no such provision.  See Tex.
R. App. P. 25.2(a).
 
McClinton, 38 S.W.3d at 750. 
The Fourteenth District cited State
v. Clemmer, 999 S.W.2d 903, 905 (Tex. App.––Amarillo 1999, pet. ref’d), as
additional authority, noting the Amarillo Court of Appeals had “elected to
address the state’s complaint when the State ‘clearly expressed the error
alleged, the authority relied upon, and the relief sought[.]’”  McClinton,
38 S.W.3d at 750 (quoting Clemmer,
999 S.W.2d at 905).   
            We
disagree with the Fourteenth District that the differences in language between
Rules 25.1 and 25.2 suggest a notice of appeal is not required for a
cross-appeal in a criminal case.  Rather,
both rules state in absolute terms that an appeal is perfected upon the filing
of a notice of appeal.  The fact that the
civil rules describe this basic principle in more detail does not suggest that
the criminal rules contain an exception for cross-appeals.  Further, the discussion contained in Clemmer concerns whether the court could
address unassigned error argued by the State, but not properly presented to the
court in an issue presented.  Clemmer, 999 S.W.2d at 905.  Clemmer
does not contain any discussion about whether the State must file a notice of
appeal to bring a cross-appeal.  See id.  There is nothing in the Texas Rules of
Appellate Procedure or in Article 44.01 which specifically provides that the
State is exempt from filing a notice of appeal when bringing an appeal under Article
44.01(b).[5]  We agree with the majority of the other Texas
Courts of Appeals that have ruled on the issue that the State is required to
file a notice of appeal to perfect a cross-appeal under Article 44.01(b).  We lack jurisdiction to entertain the State’s
cross-appeal.
V.        The Sentence Is Not an
Illegal Sentence
            The
Texas Court of Criminal Appeals has held a court with jurisdiction over a
criminal case has inherent authority to notice and correct an illegal
sentence.  See Mizell, 119 S.W.3d at
807.  An “illegal sentence” cannot be
waived and can be challenged at any time. 
Ex parte Pena, 71 S.W.3d 336,
339 (Tex. Crim. App. 2002).  In its
brief, the State argues that the sentence assessed by the trial court is an “illegal
sentence.”  According to the State, the
sentence is an “illegal sentence” because the trial court failed to make a
finding on the enhancement allegations and erred in sentencing Baines under
Section 12.44 of the Texas Penal Code.  See Tex.
Penal Code Ann. §§ 12.42, 12.44 (Vernon Supp. 2010).  
            The
Texas Court of Criminal Appeals has held a sentence is not an “illegal sentence”
merely because there is no finding on the enhancement paragraphs.  In Harris
v. State, the trial court failed to make a finding on the enhancements and
sentenced the defendant within the range of the unenhanced offense.  153 S.W.3d 394, 398 (Tex. Crim. App.
2005).  The following day, the trial
court recalled the case, found the enhancement to be true, and assessed a more
lengthy sentence.  Id.  The Texas Court of
Criminal Appeals held that the first sentence was lawfully assessed.  See id.
(concluding second sentence did not qualify as a nunc pro tunc).  Thus, the absence of a finding on the
enhancements does not render the sentence an “illegal sentence.”[6]
            The
State’s remaining complaint is that the trial court erred in sentencing Baines
under Section 12.44, which permits a trial court to assess punishment based on
the class A misdemeanor punishment range. 
See Tex. Penal Code Ann. § 12.44.  First, we note that the punishment assessed
was within the punishment range of a state-jail felony.[7]  Thus, the sentence assessed would not be an “illegal
sentence” even if the trial court had chosen not to exercise its discretion to
sentence Baines under Section 12.44. 
Section 12.44 provides two criteria to guide the trial court in
exercising its discretion—“the gravity and circumstances of the felony
committed and the history, character, and rehabilitative needs of the
defendant.”  Tex. Penal Code Ann. § 12.44.  Although Baines has several criminal
convictions, the gravity and circumstances of the offense support the trial
court’s decision to exercise its discretion to sentence Baines under Section
12.44.  The trial court abuses its
discretion when it acts “without reference to any guiding rules and principles,
or acts in a manner that is arbitrary or capricious.”  Lam v.
State, 25 S.W.3d 233, 236–37 (Tex. App.––San Antonio 2000, no pet.) (citing
Montgomery v. State, 810 S.W.2d 372,
392 (Tex. Crim. App. 1990)).  The trial
court did not abuse its discretion in sentencing Baines under Section
12.44.  
            We
note the Texas Court of Criminal Appeals has held that a trial court does abuse
its discretion if it sentences a defendant under Section 12.44 when it has found
enhancement allegations to be true, thereby increasing the punishment range
under Section 12.42(d).  State v. Allen, 865 S.W.2d 472, 473
(Tex. Crim. App. 1993).  We further note
that the Texas Court of Criminal Appeals has held a trial court errs in ignoring
in an adjudication proceeding enhancement allegations that previously have been
found to be true.  State v. Kersh, 127 S.W.3d 775, 776 (Tex. Crim. App. 2004).  This case is distinguishable from Allen and Kersh because in this case the trial court, without objection,
explicitly did not make a finding on the enhancement allegations.  Thus, unlike Allen or Kersh, the habitual offender statute does not apply to
Baines.  As discussed above, the absence
of a finding on the enhancement allegations does not render the sentence an “illegal
sentence.”  Baines’s sentence is not an “illegal
sentence.”
            For the reasons stated, we affirm. 
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          August 12, 2010
Date Decided:             November 3, 2010
 
Publish




[1]Originally
appealed to the Twelfth Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon
2005).  We are unaware of any conflict
between precedent of the Twelfth Court of Appeals and that of this Court on any
relevant issue.  See Tex. R. App. P.
41.3.


[2]In
the Brooks plurality opinion, the Texas Court of Criminal Appeals found
“no meaningful distinction between the Jackson v. Virginia legal-sufficiency
standard and the Clewis [v.
State, 922 S.W.2d 126 (Tex. Crim. App. 1996)], factual-sufficiency
standard, and these two standards have become indistinguishable.”  Brooks
v. State, No. PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6,
2010) (4-1-4 decision).  Further, a proper application of the Jackson
v. Virginia legal sufficiency standard is as exacting a standard as any
factual sufficiency standard.  See id. at *11.  In a
concurring opinion, Judge Cochran pointed out that the United States Supreme
Court has rejected a legal sufficiency test that requires a finding that “no
evidence” supports the verdict because it affords inadequate protection against
potential misapplication of the “reasonable doubt” standard in criminal
cases.  Id. at *16 (Cochran, J., concurring).  Rather
than meeting a mere “no evidence” test, legal sufficiency is judged not by the
quantity of evidence, but by the quality of the evidence and the level of
certainty it engenders in the fact-finder’s mind.  Id. at *17.  Under the authority of Brooks, we do not address the defendant’s challenge to the factual
sufficiency of the evidence.  


[3]The
record is rather vague concerning what the “murder situation” concerned.


[4]Subject-matter
jurisdiction is a threshold matter which an appellate court must address, sua sponte, if not raised by the
parties, before deciding substantive issues.  State v. Roberts, 940
S.W.2d 655, 657 (Tex. Crim. App. 1996),  overruled on other grounds by
State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002); Garcia v.
Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. [Panel Op.] 1980); Neugebauer
v. State, 266 S.W.3d 137, 139 (Tex. App.––Amarillo 2008, no pet.); McCarver
v. State, 257 S.W.3d 512, 513 (Tex. App.––Texarkana 2008, no pet.).


[5]The
San Antonio Court of Appeals, in Mizell
v. State, 70 S.W.3d 156, 163 (Tex. App.––San Antonio 2001), aff’d, 119 S.W.3d 804, held a notice of
appeal is not required when the State is appealing a ruling on a question of
law under Article 44.01(c) because Article 44.01(d) is restricted to Article
44.01(a) and Article 44.01(b).  The
Austin and Dallas Court of Appeals have disagreed and held a notice of appeal
is required even when an appeal is brought pursuant to Article 44.01(c).  Ganesan,
45 S.W.3d at 203–04 (holding notice of appeal required under Article 44.01(c));
Strong v. State, 87 S.W.3d 206, 212
(Tex. App.––Dallas 2002, pet. ref’d) (same). 
Because the State has unambiguously claimed its appeal concerns an
illegal sentence, an appeal authorized by Article 44.01(b), Mizell is clearly distinguishable from
this case.  It is not necessary for this
Court to decide whether a notice of appeal is required for an appeal brought
under Article 44.01(c).


[6]The
trial court is not bound to accept the State’s evidence and find the
enhancement allegations true.  See Harris, 153 S.W.3d at 397.  The State argues that Harris is distinguishable from this case because the defendant in Harris pled not true while the defendant
in this case pled true.  However, this
argument concerns the State’s claim that the trial court erred in explicitly
refusing to make a finding on the enhancements making the sentence
illegal.  The State failed to preserve
error on this issue.  As the Texas Court
of Criminal Appeals has noted, complaints concerning the procedure leading to
the assessment of punishment are not synonymous with a complaint that the
sentence is illegal.  State v. Baize, 981 S.W.2d 204, 206
(Tex. Crim. App. 1998) (State could not appeal untimely election for jury to
assess his punishment as an “illegal sentence”); see State v. Ross, 953 S.W.2d 748, 752 (Tex. Crim. App. 1997)
(concluding State could not appeal absence of an affirmative deadly weapon
finding as an “illegal sentence”). 
“Except for complaints involving systemic (or absolute) requirements, or
rights that are waivable only, . . . all other complaints, whether constitutional,
statutory, or otherwise, are forfeited by failure to comply with Rule
33.1(a).”  Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).   The Texas Court of Criminal Appeals has
noted “errors that are subject to procedural default may not be remedied by the
appellate court as unassigned error unless the error was in fact preserved in
the trial court.”  Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).  When the State asserts error, the burden of
preserving error for appellate review rests on the State.  State
v. Boyd, 202 S.W.3d 393, 404 (Tex. App.––Dallas 2006, pet. ref’d).  The State made no objection concerning the
trial court’s explicit refusal to make a finding on the enhancements.  The State has failed to preserve the error,
if any, of the trial court’s explicit refusal to make a finding on enhancements
for appellate review.  See Tex.
R. App. P. 33.1.  While we must
consider the absence of a finding, we are not considering whether the trial
court erred in failing to make a finding.
 


[7]An
individual convicted of a state-jail felony may be imprisoned for a term of not
more than two years or less than 180 days. 
Tex. Penal Code Ann. § 12.35(c)
(Vernon Supp. 2010).  Thus, even if the
trial court erred in sentencing Baines based on the range for a class A
misdemeanor, the sentence would not be an “illegal sentence” because it is
within the punishment range of a state-jail felony.


