                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                             NOS. 2-08-442-CR
                                  2-08-443-CR
                                  2-08-444-CR


WENDELL MARQUISE WASHINGTON                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                                I. Introduction

      Appellant Wendell Marquise Washington appeals his convictions and

sentences for assault causing bodily injury to a public servant, evading arrest

or detention, and delivery of a controlled substance. He contends in five points

that the evidence is factually insufficient to sustain his convictions, that his

conviction and sentence for evading arrest or detention violates his rights
against double jeopardy, and that the trial court erred by sentencing him as a

first-degree felon for the state jail felony of evading arrest. We affirm.

                                II. Background

      A grand jury indicted Appellant for two counts of assault causing bodily

injury to a public servant, two counts of evading arrest using an automobile,

and one count of delivery of a controlled substance. The State waived one

count of the evading arrest charge, and Appellant pleaded not guilty to all

remaining charges.

      Officer Ronald Jeter, an undercover officer with the narcotics division of

the Fort Worth Police Department, testified that he routinely participates in

narcotics buy-bust operations. Officer Jeter testified that a buy-bust operation

targets a location where drugs are sold in open areas, that an undercover officer

will attempt to purchase narcotics, and that the undercover officer will leave

the area and signal other officers to move in and arrest the individual who sold

the narcotics.

      During a buy-bust operation on April 23, 2008, Officer Jeter drove an

undercover vehicle to a convenience store on East Rosedale Street in Fort

Worth. When he arrived, he saw a white Cadillac with a person in the driver’s

seat and another person standing at the passenger window. As he passed the

white Cadillac, the black male at the passenger window said, “Hey, man, what

                                       2
do you want?” Officer Jeter testified that he told the man, “I’m looking for a

20.” Officer Jeter testified that Appellant then said, “I got you,” stepped out

of the driver’s side of the white Cadillac, and walked to the passenger side of

Officer Jeter’s undercover vehicle. Officer Jeter gave Appellant a twenty dollar

bill, and Appellant gave Officer Jeter a blue baggie containing what appeared

to be crack cocaine. 1

      Appellant then returned to the white Cadillac and sat in the driver’s seat.

A woman that had been across the street got into the white Cadillac on the

passenger’s side. Officer Jeter drove away slowly and gave the arrest signal.

Some of the arrest team arrived on foot, and Sergeant Steven Enright and

Corporal Charles Combs parked an unmarked, blue vehicle behind the white

Cadillac to block its exit. As he watched the arrest team converge on the white

Cadillac, Officer Jeter observed the white Cadillac back into the blue vehicle,

turn around, and speed away.

      On cross-examination, Officer Jeter testified that although the blue

vehicle that Sergeant Enright and Corporal Combs used to block the white

Cadillac was an unmarked car without lights on top, Sergeant Enright and

Corporal Combs wore black boots, blue jeans, and “a raid vest with State’s



      1
      The substance in the blue baggie was later confirmed to be 0.14 grams
of cocaine.

                                       3
Gang Unit on one side, Police on the other, large police letters on the back.”

Officer Jeter prepared his report within hours of the incident and used the name

“Kevin Jackson” in the report based on information received from other

officers,2 but he identified Appellant as the person that sold him the crack

cocaine from a photograph the next day.

      Officer Jeter testified that he later learned that the white Cadillac had

wrecked in a ditch. After arriving at the scene of the wreck, Officer Jeter went

into a nearby convenience store, spoke with the convenience store clerk, and

retrieved the twenty dollar bill he had given Appellant to purchase the crack

cocaine.3 Officer Jeter also testified, however, that video footage from the

convenience store showed a black female, not a black male, giving the twenty

dollar bill to the clerk.

      Corporal Combs testified that he wore a metal badge, a weapon, and his

“raid gear” on April 23, 2008; his raid gear has “POLICE” prominently displayed

on one shoulder and “gang unit” on the other shoulder.        He and Sergeant

Enright, who was dressed in the same manner, were parked around the corner

from the convenience store when Officer Jeter signaled that he had purchased


      2
     Corporal Combs testified that the registered owner of the white Cadillac
was Kevin Jackson.
      3
     Officer Jeter confirmed the serial number on the twenty dollar bill by
comparing it to a photocopy of the original bill.

                                       4
the crack cocaine from Appellant; Corporal Combs was driving, and Sergeant

Enright was in the passenger seat.       With the red and blue lights flashing,

Corporal Combs pulled the unmarked, blue police car into the convenience store

parking lot and parked approximately fifteen to twenty feet behind Appellant’s

white Cadillac. Officer Allen approached the white Cadillac on foot, with his

weapon drawn, yelling “Fort Worth Police.”

      Sergeant Enright exited the vehicle and stood outside the police car,

behind the door. Corporal Combs testified that he was exiting the vehicle, with

one foot outside the door, when Appellant drove the white Cadillac backward

“at a high rate of speed.” He stated, “[Appellant] hit the front of our car, and

it threw me up over the front steering wheel because I was kind of stepping to

get out of the car, so I did not even see the car coming at us.” He said the

collision was hard enough to throw him over the steering wheel, wedge his

head between the windshield and dash, and slam him back into the seat; he

testified, “I was dazed[,] and it knocked the wind out of me.” Corporal Combs

testified that he felt pain in his chest, that he could not breathe, and that he hit

his head hard enough that he “couldn’t realize exactly just what had happened.”

Corporal Combs did, however, watch the white Cadillac drive away and

testified that “it was probably on its way to well over a hundred miles an hour.”




                                         5
      On cross-examination, Corporal Combs agreed that someone in front of

the unmarked, blue vehicle could not see what was written on the back of his

raid gear and probably could not see the writing on the front of his raid gear

because the dashboard was still in front of him. Corporal Combs testified,

however, that Sergeant Enright had completely exited the vehicle and was

standing up at the time of the collision. Corporal Combs testified that he and

Sergeant Enright arrived before Officer Allen approached the white Cadillac

from the front, that he could see Officer Allen, the wording on his vest, and his

firearm, and that he could hear Officer Allen yelling at Appellant.      He also

testified that Appellant turned as he was backing up and looked directly at him

and Sergeant Enright.

      Sergeant Enright testified that once Corporal Combs pulled the unmarked,

blue police car into the parking lot, he started exiting the vehicle, saw Officer

Larry Carnes approaching the white Cadillac on foot with his weapon drawn,

and heard Officer Carnes yelling, “Fort Worth Police. Show me your hands.” 4

Sergeant Enright testified that as he exited the car, he saw the Cadillac’s

reverse lights come on and the driver look backward over his right shoulder and




      4
        Officer Carnes testified that as he approached the white Cadillac, a
citizen’s vehicle backed out of a parking space and was between him and the
white Cadillac in a way that blocked the forward movement of the Cadillac.

                                       6
accelerate the Cadillac toward the blue police car. Sergeant Enright testified

that he was still standing behind the door of the police car and that the impact

between the Cadillac and the police car caused the door to hit him and throw

him backward three or four feet.5 After being knocked backward, Sergeant

Enright ran forward toward the Cadillac, saw that the passenger window was

open, drew his weapon toward Appellant, and told Appellant to stop. Sergeant

Enright testified that he was six to seven feet from Appellant when he told him

to stop, that Appellant ducked down and raised his arm in a defensive position

as if he were about to be shot, that Appellant did not stop, and that Appellant

instead accelerated the Cadillac and drove away at a high rate of speed. He

testified that the white Cadillac’s tires were squealing, that the car was kicking

up dirt, and that the speed was dangerously excessive.

      Officer Mark Reese testified that following Appellant’s arrest on April 24,

2008, he transported Appellant to jail. Officer Reese testified that during the

transport, Appellant initiated conversation with him and said, “I was nervous.

I don’t know why I ran. Probably because I was going to catch a delivery

charge.”




      5
       Sergeant Enright said he did not initially feel any pain but later felt pain
and stiffness in his chest, neck, and shoulder from the impact.

                                        7
      At the conclusion of the guilt-innocence phase, the jury found Appellant

guilty of both counts of assault causing bodily injury to a public servant, the

sole count of evading arrest using an automobile with an affirmative deadly

weapon finding, and the sole count of delivery of a controlled substance.

Appellant elected to have the trial court determine his punishment, and the trial

court sentenced Appellant to thirty years’ confinement for each count of

assault, forty years’ confinement for evading arrest or detention, 6 and ten

years’ confinement for delivery of a controlled substance, with all sentences to

run concurrently. Appellant timely filed notice of these appeals.

                        III. Sufficiency of the Evidence

      In his third, fourth, and fifth points, Appellant contends that the evidence

is factually insufficient to sustain his convictions. Although Appellant does not

differentiate between legal and factual sufficiency within his arguments,

Appellant cites cases addressing only the factual sufficiency of evidence. See

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Ward v. State, 48

S.W.3d 383 (Tex. App.—Waco 2001, no pet.). Thus, we address only the

factual sufficiency of the evidence. See Tex. R. App. P. 38.1, 47.1.




      6
      The trial court enhanced the punishment range for the evading arrest
conviction first with the deadly weapon finding and second with the habitual
offender finding.

                                        8
A. Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. To reverse under the second ground, we must determine, with

some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor




                                       9
of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

B. Assault

      Appellant argues in his third point that the evidence is factually

insufficient to support his convictions for assault causing bodily injury to a

public servant. Specifically, he contends that the white Cadillac was backing

up “to avoid a civilian vehicle which had blocked its path and in the words of

one of the officers was ‘unintentional.’”

      1. Applicable Law

      A person commits the offense of assault on a public servant if he

intentionally, knowingly, or recklessly causes bodily injury to a person the actor

knows is a public servant while the public servant is lawfully discharging an

official duty. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp.

2009). Here, the jury found Appellant guilty of recklessly causing bodily injury

to Corporal Combs and Sergeant Enright.

      2. The Evidence is Factually Sufficient

      Given Appellant’s contention that he “unintentionally” backed into the

police vehicle, we note that the record is unclear as to whether Officer Jeter

testified that Appellant unintentionally backed into the police vehicle or that the

civilian vehicle unintentionally blocked Appellant’s white Cadillac. During the

                                        10
State’s direct examination of Officer Jeter, and referring to a blue car drawn

onto an aerial photograph of the convenience store parking lot, the following

exchange occurred:

      Q. And there is an additional car that is drawn in on that photo,
      and do you know what that car represents?

      A. That was a citizen that was attempting to pull out of the
      parking lot. And when he attempted to leave at first, they
      unintentionally blocked him; therefore, he backed up into the police
      car.

And during cross-examination by Appellant’s counsel, Officer Jeter testified:

      Q. Now, earlier when you were being asked questions about the
      blue vehicle on State’s Exhibit 29 that backed out, you indicated
      the other vehicle that was still there basically unintentionally moved
      back to avoid striking the vehicle that was pulling out; is that right?

      A. Sir? I’m sorry.

      Q. Well, on State’s Exhibit 29 there’s a blue vehicle that’s parked
      face-in to one of the stores?

      A. Yes, sir.

      Q. . . . You indicated that when the blue vehicle in [State’s Exhibit]
      29 pulled back that this vehicle moved back so as to avoid a
      contact of the vehicle pulling out unintentionally; is that right?

      A. Was that my wording?

      Q. That’s what I’m asking you.

      A. The white Cadillac.

      Q. Pulled back?

                                        11
      A. Backed up, yes, sir.

      Q. Just unintentionally to avoid the collision, right?

      A. I have no idea if it was unintentional or not.

      Q. I’m just asking you, did you ever use that word “unintentional”?

      A. I might have, yes, sir.

A neutral reading of Officer Jeter’s testimony could possibly suggest either that

the blue civilian vehicle unintentionally blocked Appellant’s white Cadillac by

backing up or that Appellant unintentionally backed the white Cadillac into the

police car parked behind him.      Further, the jury heard other testimony that

Appellant may not have known Corporal Combs and Sergeant Enright were

police officers before he backed the white Cadillac into their unmarked police

car. For example, Corporal Combs agreed that someone in the white Cadillac

probably could not see what was written on the back of his raid gear and

probably could not see the writing on the front of his raid gear because of the

dashboard.

      However, the jury heard other testimony that supports Appellant’s

convictions.   The jury heard testimony that Corporal Combs and Sergeant

Enright were wearing their “raid gear,” that they parked fifteen to twenty feet

behind Appellant’s white Cadillac with the unmarked car’s red and blue lights

flashing, that both officers had exited or partially exited the car before the

                                       12
collision, that Officers Allen and Carnes were approaching Appellant’s vehicle

from the front yelling, “Fort Worth Police” and “Show me your hands,” that

Corporal Combs and Sergeant Enright parked before Officer Allen approached

the white Cadillac from the front, and that Appellant looked over his right

shoulder at Corporal Combs and Sergeant Enright as he was backing up.

Corporal Combs testified that the white Cadillac “backed up at a high rate of

speed and hit the front of our car.”

      Viewing the evidence in a neutral light, we conclude the jury could have

found beyond a reasonable doubt that Appellant recklessly caused bodily injury

to Sergeant Enright and Corporal Combs, persons Appellant knew to be public

servants lawfully discharging an official duty. See Tex. Penal Code Ann. §

22.01(a)(1), (b)(1). Therefore, we cannot say that the evidence is so weak that

the jury’s determination is clearly wrong or manifestly unjust or that the

conflicting evidence so greatly outweighs the evidence supporting the

convictions that the jury’s determination is manifestly unjust. See Lancon v.

State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at

414–15, 417. Accordingly, we hold that the evidence is factually sufficient to

support the jury’s verdict, and we overrule Appellant’s third point.




                                       13
C. Evading Arrest

      Appellant contends in his fourth point that the evidence is factually

insufficient to support his conviction for evading arrest or detention.

Specifically, Appellant argues that, at the time of his arrest, he “displayed

injuries and informed the police that these had been recently given to him when

he had been kidnapped, shot at and pistol whipped [sic] by several other

persons because he had been unable to pay them what he owed them.” He

further contends that “[n]o effort to discredit that story was ever made.”

      1. Applicable Law

      A person commits the state jail felony offense of evading arrest if he

intentionally flees, in a vehicle, from a person that he knows is a peace officer

lawfully attempting to arrest or detain him. See Tex. Penal Code Ann.

§ 38.04(a), (b)(1) (Vernon Supp. 2009); Guillory v. State, 99 S.W.3d 735, 741

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      2. The Evidence is Factually Sufficient

      Officer Smith testified that he obtained information from Appellant’s wife

suggesting that Appellant had been kidnapped and pistol-whipped, but he also

testified that Appellant was not able to provide any information about the make,

model, size, or color of the vehicle he was allegedly thrown into and that

Appellant did not provide any description of the alleged kidnapper. The jury

                                       14
could have found the information about the alleged kidnapping to not be

credible.

      The jury also heard testimony that Sergeant Enright exited the unmarked,

blue police car wearing raid gear as the arrest team converged on Appellant’s

white Cadillac; that Appellant backed the white Cadillac into the unmarked

vehicle, turned around, and sped away; that Sergeant Enright ran toward the

white Cadillac, saw that the passenger window was open, drew his weapon

toward Appellant, and told Appellant to stop; and that Appellant did not stop

and instead drove away at a dangerously excessive speed. Moreover, Officer

Reese testified that Appellant told him, “I was nervous. I don’t know why I

ran. Probably because I was going to catch a delivery charge.”

      Viewing all the evidence in a neutral light, we conclude the jury could

have found beyond a reasonable doubt that Appellant, using a vehicle,

intentionally fled from Sergeant Enright, a person Appellant knew to be a peace

officer lawfully attempting to arrest or detain him. See Tex. Penal Code Ann.

§ 38.04(a), (b)(1); Guillory, 99 S.W.3d at 741. Therefore, we cannot say that

the evidence is so weak that the jury’s determination is clearly wrong or

manifestly unjust or that the conflicting evidence so greatly outweighs the

evidence supporting the conviction that the jury’s determination is manifestly

unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15,

                                      15
417. Accordingly, we hold that the evidence is factually sufficient to support

the jury’s verdict, and we overrule Appellant’s fourth point.

D. Delivery of a Controlled Substance

      Appellant argues in his fifth point that the evidence is factually

insufficient to support his conviction for delivery of a controlled substance

because “[t]he record reveals that when [Officer] Jeter dealt drugs[,] he did so

with the driver of the vehicle. The driver of the vehicle then went into the store

and was never seen again.”

      1. Applicable Law

      A person commits the state jail felony of delivery of a controlled

substance if the person knowingly possesses with intent to deliver a controlled

substance in the amount of less than one gram. See Tex. Health & Safety

Code Ann. § 481.112(a), (b) (Vernon 2010).             Cocaine is a controlled

substance. See id. § 481.102(3)(D) (Vernon 2010).

      2. The Evidence is Factually Sufficient

      Officer Jeter testified that as he arrived at the convenience store, he saw

a white Cadillac with a person in the driver’s seat and a person standing at the

passenger window, conversing with the person inside the Cadillac. The black

male at the passenger window said, “Hey, man, what do you want?” Officer

Jeter told the man, “I’m looking for a 20,” and Appellant said, “I got you” and

                                       16
stepped out of the driver’s side of the Cadillac, walked to the passenger side

of Officer Jeter’s vehicle, and gave Officer Jeter a blue baggie containing crack

cocaine after Officer Jeter gave him a twenty dollar bill.       Appellant then

returned to the white Cadillac and got in on the driver’s side. Officer Jeter

made an in-court identification of Appellant as the person who sold him the

cocaine. The jury also heard testimony that Appellant told Officer Reese, “I

don’t know why I ran.     Probably because I was going to catch a delivery

charge.” The record does not support Appellant’s contention that the driver of

the white Cadillac “went into the store and was never seen again.”

      Viewing all the evidence in a neutral light, we conclude the jury could

have found beyond a reasonable doubt that Appellant intentionally or knowingly

delivered less than one gram of cocaine to Officer Jeter. See Tex. Health &

Safety Code Ann. §§ 481.102(3)(D), .112(a), (b). Therefore, we cannot say

that the evidence is so weak that the jury’s determination is clearly wrong or

manifestly unjust or that the conflicting evidence so greatly outweighs the

evidence supporting the conviction that the jury’s determination is manifestly

unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15,

417. Accordingly, we hold that the evidence is factually sufficient to support

the jury’s verdict, and we overrule Appellant’s fifth point.




                                       17
                 IV. Collateral Estoppel and Double Jeopardy

      Appellant contends in his first point that collateral estoppel and double

jeopardy bar his conviction for evading arrest. He argues that the trial court

erred by adjudicating him guilty of evading arrest because the evading arrest

offense occurred simultaneously with, and was subsumed within, the assault

convictions. 7

A. Applicable Law

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V. Generally, this clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,

2225 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.

2006).



      7
       To the extent Appellant argues that he was punished multiple times for
the same conduct, we overrule his argument as inadequately briefed. See Tex.
R. App. P. 38.1(i). We also note that evading arrest is not a lesser-included
offense of assault on a public servant and that both the assault and evading
arrest statutes specifically authorize multiple prosecutions if the conduct
violates that and another provision of the penal code. See Warren v. State, 98
S.W.3d 739, 743–44 (Tex. App.—Waco 2003, pet. ref’d); see also Tex. Penal
Code Ann. §§ 22.01(g), 38.04(d).

                                       18
      To determine whether both offenses are the same, we must examine the

elements of the applicable statutes to determine whether each statute “requires

proof of an additional fact which the other does not.” Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932); see United States v.

Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993); Parrish v. State,

869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994). When resolving whether

two offenses are the same for double jeopardy purposes, we focus on the

elements alleged in the charging instrument. Bigon v. State, 252 S.W.3d 360,

370 (Tex. Crim. App. 2008). Separate convictions for different offenses arising

from a single criminal transaction do not violate the prohibition against double

jeopardy. See Haight v. State, 137 S.W.3d 48, 50–51 (Tex. Crim. App. 2004);

see also Hobbs v. State, 175 S.W.3d 777, 779 (Tex. Crim. App. 2005)

(discussing continuous offense of evading arrest).

B. Analysis

      1. Collateral Estoppel

      Citing Ashe v. Swensen, Appellant argues that the doctrine of collateral

estoppel bars his conviction for evading arrest. See 397 U.S. 436, 443–45,

90 S. Ct. 1189, 1194–95 (1970). However, “the Ashe doctrine of collateral

estoppel only applies where there are two trials, and not where a single trial

involving two counts is involved.” Ward v. State, 938 S.W.2d 525, 528 (Tex.

                                      19
App.—Texarkana 1997, pet. ref’d) (citing Hite v. State, 650 S.W.2d 778, 784

n.7 (Tex. Crim. App. 1983)). Appellant was tried for multiple offenses in a

single trial. Thus, collateral estoppel does not apply. See Hite, 938 S.W.2d at

784 n.7; Ward, 938 S.W.2d at 528.

      2. Double Jeopardy

      Appellant also argues that double jeopardy bars his conviction because

“the evading arrest was completely subsumed and was part and parcel of the

assault[s].”   The State counters that double jeopardy does not bar the

convictions because the assault offenses and the evading arrest offense are

different offenses and require proof of several different elements.

      We focus on the elements alleged in the charging instrument to determine

whether two offenses are the same for double jeopardy purposes. Bigon, 252

S.W.3d at 370.     Under the charging instruments, the assault-on-a-public-

servant convictions required proof that Appellant intentionally or knowingly

caused bodily injury to Corporal Combs and Sergeant Enright by using an

automobile, that Corporal Combs and Sergeant Enright were public servants

lawfully discharging an official duty, and that Appellant knew Corporal Combs

and Sergeant Enright were public servants.      The evading arrest conviction

required proof that Appellant used a vehicle to intentionally flee from Sergeant

Enright and that Appellant knew that Sergeant Enright was a peace officer

                                      20
attempting to lawfully arrest or detain him. The assault convictions required

proof of bodily injury to Corporal Combs and Sergeant Enright, but the evading

arrest conviction did not. The evading arrest conviction required proof that

Appellant intentionally fled, but the assault convictions did not. Thus, each

offense required proof of at least one fact that the other offense did not. See

Ortega v. State, 171 S.W.3d 895, 899–900 (Tex. Crim. App. 2005) (holding

offenses of assault on a public servant and resisting arrest were not the same

for double jeopardy purposes because they each required proof of at least one

fact that the other did not). 8 We hold that the offenses of assault on a public

servant and the offense of evading arrest were not the same in this case. See

id.; see also Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001)



      8
          In Ortega, the court of criminal appeals stated:

            The offense of assault required proof of at least one fact that
      the offense of resisting arrest did not: that the appellant caused
      bodily injury. The offense of resisting arrest required proof of a fact
      that the offense of assault did not: that the appellant prevented or
      obstructed a peace officer from effecting an arrest.

            By the Blockburger rule, the offenses were not the same.
      There was no violation of the Double Jeopardy Clause.

Id. at 900; see also Blockburger, 284 U.S. at 304, 52 S. Ct. at 182 (“The
applicable rule is that, where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of
a fact which the other does not.”).

                                         21
(holding that convictions for aggravated assault against a public servant and

criminal mischief did not violate double jeopardy because each offense required

proof of an element that the other did not). We overrule Appellant’s first point.

                                V. Sentencing

      Appellant argues in his second point that the trial court erred by

improperly sentencing him as a first degree felon for the state jail felony of

evading arrest. He also contends that he could not be sentenced as a first-

degree felon because the indictment gave notice of enhancement to only a

second degree felony, not a first degree felony.

      As applied in this case, evading arrest or detention is a state jail felony

because Appellant used a vehicle to flee and had not been previously convicted

of evading arrest. See Tex. Penal Code Ann. § 38.04(b)(1)(B). Appellant cites

three cases and argues that he was improperly sentenced as a first-degree felon

because state jail felonies cannot be enhanced to habitual felonies. However,

two of the cited cases did not involve an aggravating element such as the

deadly weapon finding in this case, and the third case was later overruled by

the issuing court. See Ester v. State, 941 S.W.2d 297, 300 (Tex. App.—Tyler

1996, pet. ref’d) (op. withdrawn on denial of reh’g) (holding the appellant’s

sentence could not be enhanced because there was no deadly weapon finding,

and the habitual offender enhancement did not apply); State v. Warner, 915

                                       22
S.W.2d 873, 879 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding

“that the legislature did not intend for state jail felonies to be enhanced to

habitual offender status pursuant to section 12.42(d)”), overruled by Smith v.

State, 960 S.W.2d 372, 375 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d);

State    v.   Mancuso,   903    S.W.2d    386,   387–88    and   387    n.3   (Tex.

App.—Houston [1st Dist.] 1995) (holding state jail felony could not be

enhanced for habitual offender and noting absence of evidence of deadly

weapon or applicable prior convictions), aff’d, 919 S.W.2d 86 (Tex. Crim. App.

1996). Thus, these cases do not support Appellant’s contention.

        Appellant was convicted of the state jail felony offense of evading arrest,

the jury made an affirmative deadly weapon finding, and the trial court found

the habitual offender allegation true.     Appellant argues that his sentence is

illegal because “[e]nhancement of [s]tate [j]ail felonies is solely had under Tex.

Penal Code [sections] 12.35(c) and 12.42(a) and not under [section] 12.42(d).”

To address Appellant’s argument, it is necessary to consider the text of penal

code sections 12.35(a), 12.35(c)(1), 12.42(a), and 12.42(d).

        Penal code section 12.35(a) states: “(a) Except as provided by Subsection

(c), an individual adjudged guilty of a state jail felony shall be punished by

confinement in a state jail for any term of not more than two years or less than




                                         23
180 days.” Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2009) (emphasis

added). Penal code section 12.35(c)(1) states:

      (c) An individual adjudged guilty of a state jail felony shall be
      punished for a third degree felony if it is shown on the trial of the
      offense that:

            (1) a deadly weapon as defined by Section 1.07 was used or
            exhibited during the commission of the offense or during
            immediate flight following the commission of the offense,
            and that the individual used or exhibited the deadly weapon
            or was a party to the offense and knew that a deadly
            weapon would be used or exhibited.

Id. § 12.35(c)(1) (emphasis added). Appellant could not be punished under

12.35(a) because the deadly weapon finding made section 12.35(c)(1) the

applicable punishment provision. See id. § 12.35(a), (c)(1). Thus, the trial

court properly enhanced the applicable punishment range of Appellant’s state

jail felony to that of a third degree felony under section 12.35(c)(1). See id. §

12.35(c)(1).

      The next issue is whether the trial court should have sentenced Appellant

under section 12.42(a) or section 12.42(d).        Penal code section 12.42(a)

states:

      (1) If it is shown on the trial of a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two state jail felonies, on conviction the defendant
      shall be punished for a third-degree felony.




                                        24
      (2) If it is shown on the trial of a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two felonies, and the second previous felony
      conviction is for an offense that occurred subsequent to the first
      previous conviction having become final, on conviction the
      defendant shall be punished for a second-degree felony.

      (3) Except as provided by Subsection (c)(2),9 if it is shown on the
      trial of a state jail felony punishable under Section 12.35(c) or on
      the trial of a third-degree felony that the defendant has been once
      before convicted of a felony, on conviction he shall be punished for
      a second-degree felony.

Id. § 12.42(a) (Vernon Supp. 2009) (emphasis added).                  Subsections

12.42(a)(1) and (a)(2) do not apply because they expressly apply to persons

convicted under section 12.35(a), and Appellant could not be sentenced under

section 12.35(a) because of the deadly weapon finding. See id. §§ 12.35(a),

(c)(1), 12.42(a)(1), (2). In addition, section 12.42(a)(3) does not apply because

Appellant had been previously convicted of more than one felony. See id. §

12.42(a)(3).   Thus, contrary to Appellant’s contention, he could not be

sentenced under section 12.42(a).

      Next, we must determine whether the trial court properly sentenced

Appellant under penal code section 12.42(d), which provides:




      9
      Section 12.42(c)(2) does not apply here because Appellant was not
convicted of an offense listed under that subsection. See id. § 12.42(c)(2).

                                        25
      Except as provided by Subsection (c)(2),10 if it is shown on the trial
      of a felony offense other than a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two felony offenses, and the second previous felony
      conviction is for an offense that occurred subsequent to the first
      previous conviction having become final, on conviction he shall be
      punished by imprisonment in the Texas Department of Criminal
      Justice for life, or for any term of not more than 99 years or less
      than 25 years.

Id. § 12.42(d) (Vernon Supp. 2009) (emphasis added). The trial court found

that Appellant had been convicted of two felony offenses meeting the

requirements of section 12.42(d), and as stated, Appellant could not be

punished under section 12.35(a) because of the deadly weapon finding. See

id. § 12.35(a), (c)(1). Moreover, section 12.42(d) does not exclude any state

jail felonies other than those punishable under 12.35(a). See id. § 12.42(d).

Thus, the trial court properly enhanced Appellant’s punishment range to that of

a first degree felony by applying section 12.42(d). See id. § 12.42(d).

      The court in Bunton v. State addressed a similar scenario.         See 136

S.W.3d 355, 361–62 (Tex. App.—Austin 2004, pet. ref’d). There, a grand jury

indicted Bunton for the state jail felony of evading arrest while using a motor

vehicle. Id. at 361. The indictment also alleged the use of a motor vehicle as

a deadly weapon and an habitual criminal notice for two prior felony




      10
           See supra note 9.

                                       26
convictions. Id. at 362. Bunton argued that the trial court erred by authorizing

the jury to assess his punishment under section 12.42(d) of the penal code. Id.

at 360–61. The court disagreed, stating,

        the legislature could have exempted all state jail felonies from the
        habitual criminal status in section 12.42(d). The legislature,
        however, expressly exempted only those state jail felonies
        punishable under section 12.35(a), often described by case law as
        non-aggravated offenses. By doing so, the legislature made
        aggravated state jail felonies punishable under the provisions of
        section 12.35(c) subject to the habitual criminal provisions of
        section 12.42(d).

Id. at 363; see also Smith, 960 S.W.2d at 374 (holding that “an aggravated

state jail felony may be enhanced by two prior convictions in the proper

sequence to habitual offender status” under penal code section 12.42(d)).

Thus, the Bunton court held that there was “no merit in [Bunton’s] claim that

fundamental error occurred in the jury charge at the punishment phase of the

trial when the trial court instructed the jury on the range of punishment under

section 12.42(d).” Bunton, 136 S.W.3d at 363. We hold that the trial court

did not err by sentencing Appellant under penal code section 12.42(d) in this

case.

        To the extent Appellant contends that the habitual offender notice in the

indictment did not give him sufficient notice that the State sought to enhance

his punishment to that of a first degree felony because the indictment stated,



                                        27
“State Jail Felony Enhancement – 2nd Degree Felony Notice,” we note that the

remainder of the habitual offender paragraph alleged two prior felony offenses

and that the indictment also included a deadly weapon allegation. The habitual

offender and deadly weapon allegations, if proven, removed the possibility that

Appellant could be punished as a second-degree felon. See Tex. Penal Code

Ann. § 12.42(a)(2), (3). In Ex parte Beck, the court of criminal appeals stated,

      The penal laws are fraught with offenses that have a higher penalty
      range when an additional fact, which is not necessary to prove the
      offense, is pled in the charging instrument. Although the additional
      fact must be pled in the indictment . . . the effect of that fact on
      punishment need not be pled.

769 S.W.2d 525, 527 n.2 (Tex. Crim. App. 1989). Because the face of the

indictment alleged two prior felony offenses and the use of a deadly weapon,

and because Appellant was not eligible for punishment under sections 12.35(a)

or 12.42(a)(2) and (3) if the habitual offender and deadly weapon allegations

were proven true, we hold that Appellant had sufficient notice that the State

sought enhancement of his punishment to that of a first degree felony. See

Bunton, 136 S.W.3d at 364 (noting precedent that alleging two prior felony

convictions on face of indictment provides sufficient notice in non-state jail

felony cases). We overrule the remainder of Appellant’s second point.




                                      28
                             VI. Conclusion

     Having overruled each of Appellant’s five points, we affirm the trial

court’s judgments.




                                        ANNE GARDNER
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

PUBLISH

DELIVERED: August 31, 2010




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