No. 05-04-01474-CR
Opinion Filed December 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55467-P. Affirm in part; Reverse and Remand in part.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
Appellant pleaded not guilty to state jail felony evading arrest under Texas Penal Code section 38.04(b)(1). A Dallas county jury convicted him. They found the enhancements for misdemeanor evading arrest and aggravated robbery with a deadly weapon true and sentenced him to twelve years' confinement. On appeal, he raises three issues. Appellant bases his first two issues on the incorrect assertion that the jury convicted him of third-degree felony evading arrest under Penal Code section 38.04(b)(2)(A), which requires proof of a prior conviction for evading arrest as an element of the offense. He argues in his first issue that the evidence was legally insufficient to support the verdict because the State failed to prove the prior conviction for evading arrest as an element of the offense. In his second issue, he argues that the legislative history of Penal Code section 38.04(b)(2)(A) requires that every element of the offense occur after the effective date of the statute. Because the prior conviction for evading arrest predates the effective date of the statute, he argues that the State improperly pleaded it as an element of the offense. Lastly, in his third issue, he argues that the evidence was factually insufficient to support the verdict for state jail felony evading arrest under Penal Code section 38.04(a), (b)(1). We sustain appellant's first and second issues, reverse punishment, and remand this cause to the trial court for a new punishment hearing.
FACTUAL SUFFICIENCY TO SUPPORT CONVICTION FOR EVADING ARREST
In his third issue, appellant argues that the evidence was factually insufficient to prove that he intentionally or knowingly evaded Robert Harmon ("R. Harmon"), the police officer identified in the indictment. Section 38.04(a) defines evading arrest, in relevant part, as fleeing "from a person [the defendant] knows is a peace officer attempting lawfully to arrest or detain him." In a factual sufficiency review, a reviewing court views all of the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and unjust, or the contrary evidence is so strong that the State could not have met the "beyond-a-reasonable-doubt" standard of proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A jury renders a clearly wrong and unjust verdict when its finding "`shocks the conscience'" or "`clearly demonstrates bias.'" Santellan v. State, 939 S.W.2d 155, 165 (Tex.Crim.App. 1997) (citation omitted). The factfinder is entitled to judge the credibility of the witnesses and the weight to be given testimony. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000). Uniformed officer R. Harmon testified that around 2:25 a.m. on October 3, 2002, he saw appellant traveling northbound on Fair Oaks in a car without its headlights on. R. Harmon flashed his headlights at appellant, but appellant still failed to turn on his headlights. In an attempt to make a traffic stop, R. Harmon made a u-turn in his marked Dallas Police squad car, pulled in behind appellant's vehicle, and turned on his red overhead lights. Appellant slowed down to five miles per hour and appeared to be pulling over by moving into the far right lane. Appellant continued driving very slowly but ran a red light at Fair Oaks and Pineland, turning right onto Pineland without signaling or stopping. After appellant turned onto Pineland, he began speeding up. R. Harmon followed appellant, sounding his air horn and siren intermittently. When appellant reached speeds of 35 to 40 miles per hour, R. Harmon activated his siren. There was no other traffic on the road. Appellant then accelerated to a high rate of speed, in excess of 65 miles per hour and far exceeding the 30-mile-an-hour speed limit, and pulled away from the officer. Appellant sped through the stop sign at Pineland and Park and crashed into a telephone pole. The crash itself caused a small electrical fire, and R. Harmon waited a minute before approaching the crash site. Appellant got out of his car and jogged unsteadily into the breezeway of a nearby condominium complex. He banged on the front door of a condominium and yelled, "[L]et me in, let me in." R. Harmon chased him into the breezeway and arrested him. R. Harmon noted that appellant and the condominium's occupant did not seem to know each other and that a passenger in appellant's vehicle appeared to have broken his leg. Uniformed officers Kevin Whitworth and Daryell Harmon ("D. Harmon") were also patrolling Fair Oaks on October 3. They saw R. Harmon following appellant with his red lights flashing. D. Harmon saw appellant slow down and make a long turn onto Pineland and suspected that appellant might be intoxicated. They followed R. Harmon onto Pineland to provide back-up support. They assumed R. Harmon was traveling at a high rate of speed because D. Harmon lost sight of him completely, and Whitworth could see only his emergency lights and taillights. Whitworth testified that he did not hear the siren because of the distance between them and R. Harmon. D. Harmon testified that vehicle dynamics, including speed, may have prevented them from hearing the siren. As they were trying to catch up with R. Harmon, Whitworth and D. Harmon saw sparks fly from a transformer on a telephone pole. Upon arriving at the crash scene, they saw R. Harmon running toward nearby condominiums and assumed he was chasing appellant. Whitworth and D. Harmon drove to the back of the condominiums to intercept appellant. When they did not see him, they returned to the crash scene where they saw appellant's passenger lying on the ground with leg injuries. Appellant's third issue turns on the credibility of the officers' testimony. Although a reviewing court may disagree with the jury's determination even if probative evidence supports the verdict, it must give due deference to the factfinder's determinations concerning the weight and credibility of the evidence and will reverse the factfinder's determination only "to arrest the occurrence of a manifest injustice." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Appellant argues that the evidence is factually insufficient because he alleges that the officers' testimony was contradictory, especially about whether R. Harmon engaged his siren, whether appellant ran a red light, and whether R. Harmon radioed a code three emergency. But the testimony of back-up officers D. Harmon and Whitworth did not contradict R. Harmon's testimony. D. Harmon and Whitworth explained that distance and vehicle dynamics may have prevented them from hearing the siren. And their failure to notice the color of the light at the intersection of Pineland and Park does not conflict with R. Harmon's testimony that it was red. Also, the back-up officers' testimony that they did not hear R. Harmon radio a code three emergency is not inconsistent with R. Harmon's testimony because he did not testify that he radioed a code three emergency. In fact, D. Harmon testified on cross-examination that an attempt to initiate a traffic stop does not qualify as a "code three," a designation restricted to emergency calls regarding an officer in serious danger of bodily harm, a shooting, a cutting, or a sexual assault in progress. The jury could have reasonably deduced that appellant knew that a police officer was chasing him and that he was intentionally fleeing. R. Harmon signaled appellant to pull over with multiple known police devices: he flashed his headlights, flashed his overhead lights, sounded his air horn and siren, and finally activated his siren continuously. The jury did not hear testimony from any witness that appellant could not see the flashing lights or hear the air horn and siren. Further, all of the officers were wearing uniforms and driving marked squad cars. Appellant responded to R. Harmon's pursuit by attempting to get away from him at a dark intersection and then instigating a high speed car chase that resulted in a car wreck and injury. Even after he crashed, appellant fled for cover in a nearby condominium, banging on the occupant's door in the middle of the night. Nothing in appellant's arguments makes the proof of guilt so obviously weak nor the contrary proof so overwhelming that it renders the guilty verdict clearly wrong and manifestly unjust. See Hobyl v. State, 152 S.W.3d 624, 628 (Tex.App.-Houston [1st Dist.] 2004, pet. granted) (holding evidence factually sufficient to show appellant fleeing from peace officer when, despite appellant's conflicting testimony, pursuing officer testified that appellant looked in his rearview mirrors, sped up to 110 miles per hour when officer activated his lights and siren, and continued driving at that speed for three miles while officer pursued him in marked police car). We overrule appellant's third issue. UNAUTHORIZED SENTENCE
Appellant bases his first two issues on the incorrect assertion that he was improperly convicted of third-degree felony evading arrest under Penal Code section 38.04(b)(2). He argues that the evidence was legally insufficient to prove all the elements of the offense, specifically the prior conviction for evading arrest. He also argues that, based on the legislative history of Penal Code section 38.04(b)(2), all elements of the offense must occur after the effective date of the statute. Because the prior conviction for evading arrest predates the effective date of the statute, he contends that the State improperly pleaded it as an element of the offense. Accordingly, he argues that his punishment of twelve years' confinement falls outside of the applicable punishment range. Although he is mistaken in his belief that he was convicted of third-degree felony evading arrest, he is correct that his sentence falls outside the applicable punishment range. The indictment alleged that appellant committed the offense of state jail felony evading arrest with enhancement paragraphs for misdemeanor evading arrest and first-degree felony aggravated robbery with a deadly weapon. The judgment clearly reflects that the jury convicted appellant only of a state jail felony but, after finding the enhancement paragraphs true, sentenced him to twelve years' confinement, within the applicable punishment range for second-degree felonies. See Tex. Pen. Code Ann. § 12.33 (Vernon Supp. 2005). The Penal Code does not contemplate enhancing a state jail felony with a misdemeanor, and a finding of true on a misdemeanor enhancement should not therefore have increased his punishment range. See Tex. Pen. Code Ann. §§ 12.35(c), 12.42(a) (Vernon Supp. 2005). Although the jury in this case could have enhanced appellant's sentence with the aggravated robbery to a third-degree felony punishment range under Penal Code section 12.35(c)(2), the Penal Code does not authorize a sentence within the second-degree felony punishment range. Accordingly, appellant was subject at most to punishment for a third-degree felony, or two to ten years' imprisonment and a fine not to exceed $10,000.00. See Tex. Pen. Code Ann. § 12.34 (Vernon Supp. 2005). Because appellant's sentence falls outside the applicable punishment range, the Court sustains appellant's first two issues. The appropriate remedy is to reverse punishment and remand for new punishment. CONCLUSION
Although the evidence was factually sufficient to support the conviction for evading arrest, the jury sentenced appellant outside of the proper sentencing range. Accordingly, we reverse the trial court's judgment on punishment and remand for a new punishment hearing. We affirm the trial court's judgment in all other respects. Tex.R.App.P. 43.2(a).