Hopkins v. State

Full title: CHRISTOPHER G. HOPKINS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 7, 2009

No. 05-07-01697-CR (Tex. App. May. 7, 2009)

Opinion

No. 05-07-01697-CR

Opinion Filed May 7, 2009. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-58951-QV.

Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.

OPINION

LINDA THOMAS, Chief Justice.

After the trial court denied his motion to quash the indictment for failing to allege an essential element of the offense, Christopher G. Hopkins waived his right to a jury and pleaded guilty to the state jail felony offense of evading arrest or detention. The trial court assessed punishment at two years' confinement, probated for five years, and a $2500 fine. In three issues, appellant contends the trial court erred by denying the motion to quash and by failing to pronounce appellant guilty and the judgment should be modified to reflect the correct statute under which appellant was charged and convicted. As modified, we affirm the trial court's judgment.

Background ¹

1 Appellant has not challenged the legal or factual sufficiency of the evidence. Accordingly, we limit our review of the evidence and the proceedings in the trial court to that necessary to put appellant's complaint into context.

Appellant was indicted for evading arrest or detention. The indictment stated that appellant: did unlawfully, then and there intentionally flee from A. FOSTER, hereinafter called complainant, while complainant was lawfully attempting to arrest and detain the defendant, and the said defendant knew the said complainant was a peace officer attempting to arrest and detain the said defendant, And further, defendant did use a vehicle while in the flight and commission of the aforesaid offense alleged in the first paragraph above. Appellant moved to quash the indictment contending it failed to contain the elements of the offense charged, failed to inform him of the charge, and failed to enable him to plead an acquittal or conviction in bar to future prosecutions for the same offense. After the trial court denied appellant's motion to quash, appellant pleaded guilty to the offense.

Sufficiency of Indictment

In his first issue, appellant argues the trial court erred by denying appellant's motion to quash the indictment because the indictment did not allege a necessary element of the charged state jail felony offense of evading arrest or detention. We review the trial court's denial of a motion to quash de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), cert. denied, 128 S. Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). 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." Tex. Penal Code Ann. § 38.04(a) (Vernon 2003). The offense is generally classified as a misdemeanor, but can be elevated to a felony under certain circumstances. Id. § 38.04(b). Specifically, the offense is:

(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or

(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.

Tex. Penal Code Ann. § 38.04(b). Relying on Calton v. State, 176 S.W.3d 231 (Tex.Crim.App. 2005), appellant contends the indictment failed to allege appellant had not been previously convicted under section 38.04 of the penal code and, therefore, the trial court erred in denying appellant's motion to quash. We disagree. Initially, we note appellant's reliance on Calton is misplaced. In Calton, the State alleged a third-degree felony evading arrest or detention under section 38.04(b)(2) of the penal code. The court of criminal appeals concluded the State was required to plead and prove the existence of a prior conviction under section 38.04 of the penal code as an element of the third-degree felony evading arrest or detention offense. Id. at 234. This case, however, involves a charge of evading arrest or detention with a motor vehicle, a state jail felony under section 38.04(b)(1), and does not involve a prior evading arrest or detention conviction. Therefore, Calton does not control. An indictment must allege each element of the offense. Cook v. State, 902 S.W.2d 471, 477 (Tex.Crim.App. 1995); Holley v. State, 167 S.W.3d 546, 547 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). The penal code defines an element of the offense as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. Tex. Penal Code Ann. § 1.07(a)(22) (Vernon Supp. 2008). The nonexistence of a prior conviction under section 38.04 does not fall into any of these categories. Holley, 167 S.W.3d at 548. Accordingly, we cannot conclude the Legislature intended for the nonexistence of a prior conviction to be an element of the state jail felony offense of evading arrest or detention. Peavey v. State, 248 S.W.3d 455, 466 n. 9 (Tex.App.-Austin 2008, pet. ref'd); Holley, 167 S.W.3d at 548.² Appellant also asserts that "dispensing with pleading and proving [the nonexistence of a prior evading arrest conviction] puts at risk Appellant's constitutional right to protection from double jeopardy as guaranteed under the federal and state constitutions." Specifically, appellant contends not requiring the State to plead and prove appellant does not have a prior conviction under section 38.04 of the penal code could subject appellant to a successive prosecution for the same offense and to multiple punishments for the same offense. However, any double jeopardy claim is not ripe for review. Burk v. State, 876 S.W.2d 877, 889 (Tex.Crim.App. 1994) ("In regards to any potential claim of jeopardy which appellant might have to assert in a future prosecution, the proper time to argue this issue is after he has been charged or indicted for that unnamed future offense. As of now, that issue is far from ripe."); see United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (double jeopardy claim based on successive prosecution not ripe for review until further proceedings brought); United States v. Koonce, 885 F.2d 720, 722 (10th Cir. 1989) ("Unless and until defendant receives some punishment from the district court that is arguably multiple, the issue is not ripe for review."). Because the nonexistence of a prior evading arrest conviction is not an element of the offense of state jail felony evading arrest or detention, the trial court did not err by denying appellant's motion to quash the indictment. We overrule appellant's first issue.

Pronouncement of Guilt

In his second issue, appellant contends the trial court erred by failing to pronounce appellant guilty. Although the trial court found "the State has proven a state jail felony," it did not make a formal pronouncement of guilt before it assessed punishment. The trial court, however, entered a written judgment reflecting that it found appellant guilty and sentenced him. The absence of an express oral pronouncement of guilt by the trial court does not render the written judgment void. Villela v. State, 564 S.W.2d 750, 751 (Tex.Crim.App. [Panel Op.] 1978); Sanchez v. State, 222 S.W.3d 85, 88 (Tex.App.-Tyler 2006, no pet.); Parks v. State, 960 S.W.2d 234, 238 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (written judgment is valid even in absence of express oral pronouncement of guilt by trial court). Relying on Warren v. State, 784 S.W.2d 56 (Tex.App.-Houston [1st Dist.] 1989), rev'd on other grounds, 810 S.W.2d 202 (Tex.Crim.App. 1991), appellant asserts the written judgment is not supported by the record and, therefore, it is unclear the trial court found appellant guilty. However, Warren is factually distinguishable from the present case. The defendant in Warren was indicted in two separate causes for felony theft. The defendant pleaded no contest in one cause and applied for deferred adjudication. The trial court deferred finding the defendant guilty and reset the case for a pre-sentencing report. At the sentencing hearing, the trial court recited in the record that it had previously found the defendant guilty at the plea hearing. Id. at 63. Further, the judgment contained contradictory recitals; both that the trial court had deferred the finding of guilt and that the trial court had found the defendant guilty. Id. The court of appeals determined that when the written findings in the judgment contradict one another, it was required to look at the entire record to determine whether the trial court pronounced the defendant guilty. Id. In this case, the trial court fully admonished appellant, accepted his guilty plea, and received evidence from the State and appellant. Although the trial court did not specifically pronounce appellant guilty after the evidence closed, it found "the State has proven a state jail felony" and assessed punishment, consistent with a finding of guilt, at two years in the state jail probated for five years. The judgment recites the trial court found appellant guilty and the punishment imposed and contains no contradictory findings. Accordingly, Warren is distinguishable. We overrule appellant's second issue.

Reformation of Judgment

In his third issue, appellant asks this Court to modify the judgment to reflect the correct statute under which appellant was charged and convicted. The judgment reflects appellant was convicted under section "38.040" of the penal code. The State agrees the judgment should be modified to reflect appellant was convicted under section 38.04 of the penal code. We sustain appellant's third issue. We modify the trial court's judgment to show the statute for the offense is "38.04 Penal Code." See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd.). As modified, we affirm the trial court's judgment.