Opinion
No. 05-03-00712-CR
Opinion issued November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55942-NT.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Oliver W. Gray, Jr. appeals his conviction for evading arrest or detention while using a vehicle. Appellant waived a jury trial and entered a negotiated guilty plea before the court. Pursuant to the plea bargain agreement, the trial judge sentenced appellant to eighteen months in a state jail facility and assessed a $1500 fine. The trial court granted appellant permission to appeal. In two points of error, appellant contends the evidence is insufficient to support the conviction and the sentence imposed is illegal. We affirm the trial court's judgment. In his first point of error, appellant argues the evidence is insufficient because the State failed to prove appellant had not been previously convicted of evading arrest or detention, which is an element of the offense. Appellant argues evading arrest is a class B misdemeanor offense and is elevated to a state jail felony offense only if the accused used a vehicle and had not been previously convicted of evading arrest or detention. Appellant asks this Court to modify the trial court's judgment to show he was convicted of a class B misdemeanor. The State responds appellant's signed judicial confession is sufficient to support the conviction, and the absence of a prior conviction is not an elevating factor of evading arrest or detention. We agree with the State. When a defendant pleads guilty, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2003); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988). The evidence may be stipulated if the defendant, in writing, waives the appearance, confrontation, and cross-examination of witnesses and consents to the introduction of documentary evidence in support of the judgment. Tex. Code Crim. Proc. Ann. art. 1.15. We will affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). A person commits the offense of evading arrest or detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. See Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). Evading arrest or detention is a "state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section." Id. § 38.04(b)(1). It is the use of a vehicle, not the lack of a prior conviction, that elevates the offense from a class B misdemeanor to a state jail felony. The State does not have to prove the negative — that the defendant has no prior conviction. Rather, the existence of a prior conviction for evading arrest or detention becomes an element of the offense when the State is attempting to prove the third-degree felony offense under section 38.04(b)(2)(A). See, e.g., Ford v. State, 112 S.W.3d 788, 791 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Throneberry v. State, 109 S.W.3d 52, 55 (Tex. App.-Fort Worth 2003, no pet.) (op. on pet. for discretionary review); State v. Atwood, 16 S.W.3d 192, 195 (Tex. App.-Beaumont 2000, pet. ref'd). In this case, appellant judicially confessed to committing the offense as alleged in the indictment. At the plea hearing, the State offered the judicial confession into evidence without objection by appellant. A judicial confession admitted into evidence and contained in the transcript is sufficient to prove appellant's guilt. See Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. 1996); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (op. on reh'g). The State was not required to plead and prove the absence of a prior conviction for evading arrest or detention. Therefore, we conclude the evidence is sufficient to support the conviction. See Stone, 919 S.W.2d at 427. Accordingly, we overrule appellant's first point of error. In his second point of error, appellant argues that because the evidence shows he was guilty only of a class B misdemeanor, the sentence imposed was outside the punishment range and was illegal. The State responds the sentence was within the punishment range for a state jail felony offense. Again, we agree with the State. Appellant's second point of error is premised on his prevailing on his first point of error. We overruled his first point. Likewise, we reject appellant's claim that his sentence exceeds the statutory maximum for the offense for which he was convicted. Appellant was convicted of a state jail felony and sentenced within the correct punishment range. Accordingly, we overrule appellant's second point of error. We affirm the trial court's judgment.