Vidales, Sammy

PD-0705-15 PD-0705-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/12/2015 3:26:07 PM Accepted 6/12/2015 3:55:18 PM ABEL ACOSTA No. 07-13-00286-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

SAMMY VIDALES, Appellant v. THE STATE OF TEXAS, Appellee

Appeal from Lubbock County

• • * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

• • * * * * June 12, 2015 LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

STACEY M. GOLDSTEIN Assistant State’s Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax)

IDENTITY OF PARTIES, JUDGE, AND COUNSEL

• • The parties to the trial court’s judgment are the State of Texas and Appellant, Sammy Vidales.
• • The trial Judge was Hon. John J. (Trey) McClendon, III.
• • Trial counsel for the State were Robert Clay Kimbrough and Robert Withers, Assistant District Attorneys, P.O. Box 10536, Lubbock, Texas 79408.
• • Counsel for the State before the Court of Appeals was Jeffrey S. Ford, Assistant District Attorney, P.O. Box 10536, Lubbock, Texas 79408.
• • Counsel for the State before the Court of Criminal Appeals is Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
• • Counsel for Appellant at trial was Kelly Clark, 1601 Broadway, Lubbock, Texas, 79401.
• • Counsel for Appellant before the Court of Appeals was Frank Seller, Hurley, Guinn, & Sellers, 1805 13th Street, Lubbock, Texas 79401.

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TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Does a TEX. PENAL CODE § 12.42(d) first-degree habitual punishment enhancement charge that omits the sequential element render a jury’s first- degree punishment assessment an “illegal sentence”?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-6 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 APPENDIX A (Briefing Order of the Court of Appeals) APPENDIX B (Opinion of the Court of Appeals)

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INDEX OF AUTHORITIES

Cases Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . 6 n.8 Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . 5 n.7 Fletcher v. State, 214 S.W.3d 5 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . 3-4 n.3 Jordan v. State, 256 S.W3d 286 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . 3 n.3, 5 Malick v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . . 4, 4 n.4 Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 6 n.8 Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . 4 n.3 Roberson v. State, 420 S.W.3d 832 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . 4 Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . 3 n.2

Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex. App.—Amarillo Oct. 28, 2014) (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n.1

Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033 (Tex. App.—Amarillo 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 4 Statute TEX. PENAL CODE § 12.42(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n.2

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No. 07-13-00286-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

SAMMY VIDALES, Appellant v. THE STATE OF TEXAS, Appellee

• • * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

• • * * * * TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State respectfully urges this Court to grant discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

A jury convicted Appellant of the third-degree felony offense of evading arrest. The charge on punishment included two prior sequential felony convictions under Texas Penal Code Section 12.42(d), which raised the potential punishment level to a first-degree felony. The jury was not instructed, however, that it must find that *2 the second prior offense occurred after the first prior was final. The jury found the enhancements true and sentenced Appellant to sixty years’ imprisonment. The court of appeals held that the sentence was illegal because the jury never made the essential sequential factfinding necessary to elevate the punishment level above the second-degree range.

STATEMENT OF PROCEDURAL HISTORY

In a published decision, the court of appeals reversed Appellant’s sentence. Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex. App. LEXIS 5033 (Tex. App.—Amarillo 2015). The State did not file a motion for rehearing.

GROUND FOR REVIEW

Does a TEX. PENAL CODE § 12.42(d) first-degree habitual punishment enhancement charge that omits the sequential element render a jury’s first- degree punishment assessment an “illegal sentence”?

ARGUMENT

The court of appeals held that Appellant’s first-degree felony sentence of sixty years was illegal1 because, although the State proved the prior convictions, the jury

1 The “legality of the sentence imposed” theory was first developed by the court of appeals as unassigned error. Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex. App.—Amarillo Oct. 28, 2014) (not designated for publication). Both parties addressed the issue in their supplemental briefs as jury charge error, which included analyses of egregious harm. Appellant’s Supplemental Brief, at 1-10; State’s Supplemental Brief, at 1-5. Indeed, the State conceded that Appellant suffered harm. State’s Supplemental Brief, at 4-5. The State’s concession is not binding on courts, however. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).

was not instructed that it had to find the priors were sequential (i.e., that the second occurred after the first was final) as required by Section 12.42(d).2 Vidales, 2015 Tex. App. LEXIS 5033, at *17-19. As a result, the court reversed Appellant’s punishment. Id. at *19.

The court of appeals erred to hold that Appellant’s sentence is illegal because the jury was not required to, and therefore did not make, the sequential finding. In doing so, it improperly commingled two firmly established, but separate, legal bases—unlawful punishment and jury charge error. The distinction is important. An illegal sentence is unauthorized by law, whereas the sentence here was unauthorized by the charge yet, still, technically authorized by law. So unlike illegal sentence cases, the circumstance here does not involve a failure of proof or unauthorized enhancement.3 Because its propriety is judged under the hypothetically correct jury charge, the omitted sequencing instruction does not implicate the legality of the

2 Penal Code Section 12.42(d) states: “if it is shown on the trial of a felony offense . . . 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 the defendant shall be punished by imprisonment . . . for life, or for any term of not more than 99 years or less than 25 years.” 3 See, e.g., Jordan v. State, 256 S.W3d 286, 289 (Tex. Crim. App. 2008) (state failed to present evidence to prove when a prior offense was committed); Fletcher v. State, 214 S.W.3d 5, 9 (Tex. Crim. App. 2007) (state failed to prove finality of prior conviction); Ex parte Rich, 194 S.W.3d 508, 510-12 (Tex. Crim. App. 2006) (improper use of misdemeanor conviction for enhancement).

sentence. In Roberson v. State, this Court held that Malick v. State’s4 rule—that evidentiary sufficiency for an offense is measured against the hypothetically correct jury charge—applies to sufficiency of Section 12.42(d) punishment enhancements. 420 S.W.3d 832, 840-41 (Tex. Crim. App. 2013); see also Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000) (applicable to drug-free zone element). In this case, the hypothetically correct charge would have instructed the jury that it was required to find the priors sequential before it could assess a sentence within the first-degree range.

Applying the hypothetically correct charge, the record establishes that the State satisfied its burden to prove the requisite sequence.5 Appellant was convicted of the first prior felony (aggravated robbery) on March 25, 1996.6 State’s Exhibit 22. Appellant was convicted of the second prior (burglary of a habitation) on June 19, 2008. State’s Exhibit 24. That offense was committed on February 28, 2008, 12 years, 2 months, and 25 days after the aggravated robbery was entered. State’s Exhibit 24.

4 953 S.W.2d 234 (Tex. Crim. App. 1997). 5 The court of appeals seems to implicitly recognize this because it grants an entirely new punishment hearing instead of a reassessment under the second-degree felony range. 6 The jury charge mistakenly lists the judgment date as March 26th. 1 CR 81.

As noted above, charge error is considered without regard to the legality of a sentence. The court of appeals’ remedy creates several internal conflict that demonstrate its lack of understanding of nuances of the applicable legal doctrines. On the one hand, when remanding for a new punishment hearing, the court makes a point of declining to consider whether the State can seek additional findings under Section 12.42(d) on remand—an open issue, according to the court. Vidales, 2015 Tex. App. LEXIS 5033, at 19 n. 6. This line of thinking assumes that evidentiary sufficiency was at issue,7 which is not harmless. Jordan, 256 S.W.3d at 292 (failure to prove sequencing is never harmless). Yet, on the other hand, the court’s “illegal sentence” determination rests solely on jury charge error. But, at the same time, its disposition rebuts that legal theory. Had the court applied charge error jurisprudence, it would have decided whether Appellant suffered egregious harm. Nonetheless, to the extent that court of appeals’ legal basis for reversal can reasonably be construed as jury charge error, Appellant was not egregiously harmed.8 The State proved the sequential element beyond a reasonable doubt. Further, the State explained the sequencing

7 This Court has decided the issue. In Bell v. State, the court held that double jeopardy does not bar the State on retrial from proving up a prior for purposes of seeking a cumulated sentence. 994 S.W.2d 173, 175 (Tex. Crim. App. 1999). 8 See Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim. App. 2006) (failure to submit burden of proof for deadly weapon finding subject to a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)).

requirement in its closing argument, and Appellant did not challenge the validity of the priors on that basis at trial. 6 RR 15, 19-20. If this Court construes the court’s legal basis to be charge error, then the case should be remanded for a harm analysis.

This Court cannot let this opinion stand because the court of appeals’ illegal sentence disposition based on charge error is unprecedented. It represents a drastic departure from, and conflicts with, this Court’s illegal sentence and charge error jurisprudence. The State is aware of no other case holding that an erroneous enhancement punishment charge renders a sentence illegal, and it is doubtful that this Court would endorse such an outcome given its conflict with the relief attendant to punishment charge error.

PRAYER

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals grant this Petition for Discretionary Review and reverse the decision of the court of appeals and reinstate Appellant’s sentence.

Respectfully submitted,

LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax)

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this document contains 1,086 words, exclusive of the items excepted by TEX. R. APP. P. 9.4(i)(1).

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary Review has been served on June 12, 2015, via certified electronic service provider to:

Hon. Jeffrey S. Ford P.O. Box 10536 Lubbock, Texas 79408 JFord@co.lubbock.tx.us

Hon. Frank Seller Hurley, Guinn, & Sellers 1805 13th Street Lubbock, Texas 79401 frank@hurleyguinn.com

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

APPENDIX A

SAMMY VIDALES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-13-00286-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

2014 Tex. App. LEXIS 12255

October 28, 2014, Decided

NOTICE: PLEASE CONSULT THE TEXAS RULES 1 TEX. PENAL CODE ANN. § 38.04(a) (West Supp. OF APPELLATE PROCEDURE FOR CITATION OF 2014). Effective September 1, 2011, the offense UNPUBLISHED OPINIONS. of evading arrest with a vehicle is a third degree felony. See Act of May 27, 2011, 82nd Leg., SUBSEQUENT HISTORY: Decision reached on R.S., ch. 920, § 3, 2011 Tex. Gen. Laws 2321, appeal by, Remanded by, in part Vidales v. State, 2015 2322. Tex. App. LEXIS 5033 (Tex. App. Amarillo, May 15, In our review of the record in this case, we have 2015) discovered a previously unassigned, [*2] potentially meritorious issue concerning the legality of the sentence PRIOR HISTORY: [*1] On Appeal from the 137th imposed. Specifically, the Charge of the Court on District Court, Lubbock County, Texas. Trial Court No. Punishment describes two prior felony convictions, each 2012-436,579; Honorable John J. McClendon III, of which became "final prior to the commission of the Presiding. offense of which you have just found [Appellant] guilty," i.e., the offense of evading arrest; however, it does not JUDGES: Before QUINN, C.J., and CAMPBELL and submit to the jury the question as to whether "the second PIRTLE, JJ. previous felony conviction is for an offense that occurred subsequent to the first previous conviction having OPINION become final." See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). Accordingly, a question exists as to ORDER TO REBRIEF ISSUES the appropriate range of punishment: (1) two to twenty Appellant, Sammy Vidales, was convicted by a jury years pursuant to § 12.42(a) or (2) twenty-five to ninety- of evading arrest or detention with a vehicle,1 enhanced nine years pursuant to § 12.42(d). by two prior felony convictions, and sentenced to sixty- In the interest of justice, and out of an abundance of two years confinement. By three issues, Appellant fairness to all parties, this Court hereby assigns this issue contends (1) his initial detention was not lawful because as potential error and directs both parties to file there were no specific and articulable facts supporting additional briefing. Appellant is granted thirty days from reasonable suspicion to detain him, (2) his trial counsel the date of this order to file a supplemental brief and the was ineffective and (3) error in the jury charge failed to State is granted thirty days from the date Appellant's instruct the jury on unanimity of the verdict regarding supplemental brief is filed to file a reply brief. what he perceived to be two separate evading arrest offenses allegedly committed on the same date. The State Per Curiam responded to Appellant's briefing and the case was submitted to this Court on the briefs. Do not publish.

APPENDIX B

SAMMY VIDALES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-13-00286-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

2015 Tex. App. LEXIS 5033

May 15, 2015, Decided

NOTICE: PUBLISH. 1 TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Although formerly a state jail felony, PRIOR HISTORY: [*1] On Appeal from the 137th effective September 1, 2011, evading arrest District Court, Lubbock County, Texas. Trial Court No. through the use of a motor vehicle is a third 2012436579; Honorable John J. McClendon III, degree felony. Presiding. 2 Vidales v. State, No. 07-13-00286-CR, 2014 Vidales v. State, 2014 Tex. App. LEXIS 12255 (Tex. App. Tex. App. LEXIS 12255 (Tex. App.--Amarillo Oct. Amarillo, Oct. 28, 2014) 28, 2014, no pet.). 3 See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014) (providing that a third degree felony JUDGES: Before QUINN, C.J., and CAMPBELL and is punishable by imprisonment for life, or any PIRTLE, JJ. term of not more than 99 years or less than 25 years if it is shown that the defendant has OPINION BY: Patrick A. Pirtle previously been convicted of two felony offenses, and the second previous felony conviction is for OPINION an offense that occurred subsequent to the first previous felony having become final). Appellant, Sammy Vidales, was convicted by a jury of evading arrest or detention with a vehicle, an offense The State responded to Appellant's first issue with a alleged to have been committed on the 7th day of lengthy discussion concerning reasonable suspicion to October, 2012.1 Finding two enhancement paragraphs to lawfully detain Appellant and then concluded "it would be true, the jury sentenced him to sixty-two years appear that the attempted lawful detention element of confinement. By three issues raised through his original evading arrest or detention was not met here." Without briefing, Appellant contends (1) his initial detention was stating what the proper disposition should be when the not lawful because there were no specific and articulable State fails to prove an essential element of the offense facts supporting reasonable suspicion to detain him, (2) [*3] charged, the State requests this Court to "review his trial counsel was ineffective, and (3) error in the jury [the issue] under the proper standard of review, and charge failed to instruct the jury on unanimity of the render an appropriate judgment and decision." The State verdict regarding what he perceived to be two separate then responds to issues two and three with a conclusion evading arrest offenses on the same date. After original they should be overruled. Finally, by its supplemental submission on the briefs, the parties were ordered to brief brief, the State responds to the fourth issue by conceding a previously unassigned, potentially meritorious issue Appellant was egregiously harmed by the omission of an concerning the legality of the sentence imposed.2 By a essential instruction in the punishment charge. As to this supplemental brief, Appellant added a fourth issue error, the State contends we should reverse the sentence contending he was egregiously harmed when the trial and remand the case for a new trial on punishment. We court authorized [*2] the jury to assess a sentence within affirm in part and reverse and remand in part. the statutory punishment range provided by section 12.42(d) of the Texas Penal Code without requiring the BACKGROUND jury to first find an element essential to the enhanced Shortly after midnight on October 7, 2012, Officer punishment range, to-wit: the sequential finality of his Justin Anderson of the Lubbock Police Department was prior convictions.3 dispatched to an apartment complex on a domestic disturbance call. The caller described the suspect as a

black male. When Officer Anderson and his partner We disagree. arrived at the complex, they exited their vehicle and proceeded to the apartment of the reporting party. The STANDARD OF REVIEW suspect had already left. In assessing the sufficiency of the evidence to While walking back to his patrol car, Officer support a criminal [*6] conviction, this Court considers Anderson observed an SUV driving in the parking lot all the evidence in the light most favorable to the verdict without the headlights turned on. He ran toward the SUV and determines whether, based on that evidence and and shined his flashlight inside and yelled [*4] for the reasonable inferences to be drawn therefrom, a rational driver to stop. The driver, a Hispanic male later identified trier of fact could have found the essential elements of as Appellant, complied. Officer Anderson admitted that, the crime beyond a reasonable doubt. See Jackson v. even though he realized the driver was not the suspect Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 they were looking for, he asked Appellant for the keys to (1979). See also Brooks v. State, 323 S.W.3d 893, 912 his SUV. Appellant inquired "why" and the officer (Tex. Crim. App. 2010). responded "because I asked you to." Instead of We measure the legal sufficiency of the evidence by complying, Appellant drove away and exited the the elements of the offense as defined by a hypothetically complex. The officers were not near their patrol car and correct jury charge. Malik v. State, 953 S.W.2d 234, 240 did not pursue Appellant. At that time, Officer Anderson (Tex. Crim. App. 1997). In our review, we must evaluate did not report to dispatch that there was an "evading all of the evidence in the record, both direct and detention" in progress. circumstantial, whether admissible or inadmissible. Approximately five hours later, while Officer Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. Anderson was patrolling his area of the city, he observed 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 what he believed to be the same SUV previously L. Ed. 2d 958 (2000). Furthermore, we must give encountered at the apartment complex. At that time, he deference to the responsibility of the trier of fact to fairly activated his emergency lights and the SUV pulled over resolve conflicts in the testimony, to weigh the evidence into a motel parking lot. Appellant was the driver of that and to draw reasonable inferences from basic facts to vehicle. This time Appellant exited his SUV and walked ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. toward Officer Anderson. For safety reasons, Officer Crim. App. 2007). Anderson drew his weapon and ordered Appellant to his knees in order to handcuff him.4 Appellant complied. As ANALYSIS Officer Anderson was attempting to secure the handcuffs, A person commits the offense of evading arrest or they got caught in Appellant's jacket [*5] and he began detention with a vehicle if he (1) intentionally (2) flees moving around as if attempting to get away. Officer (3) from a person he knows is a peace officer (4) Anderson discarded the handcuffs, subdued Appellant attempting lawfully to arrest or detain him, and (5) he with his body weight and called for backup. uses a vehicle while in flight. TEX. PENAL CODE ANN. §§ 38.04(a), 38.04(b)(2)(A). As to the issue of a lawful 4 Officer Anderson testified that Appellant did arrest or detention, the Fourth Amendment to the United not have any weapons on his person. States Constitution protects citizens from unreasonable Appellant managed to push Officer Anderson off and searches and seizures [*7] at the hands of government proceeded to his SUV. Officer Anderson then attempted officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. to deploy his taser, but not all of the probes made contact App. 2007). When a person pulls over in response to a with Appellant and he was not completely disabled. After patrol car's emergency lights rather than of his own Appellant entered his SUV, some of the taser leads broke accord, an investigatory detention has occurred. Crain v. off. Appellant then reversed his SUV, crashing it into State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). For Officer Anderson's patrol car before exiting the motel police officers to be able to conduct an investigative parking lot. Backup officers pursued Appellant, and after detention which is lawful under the Fourth Amendment, he wrecked his SUV, he was eventually apprehended they must have reasonable suspicion founded on specific, while on foot. articulable facts. Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). Reasonable suspicion ISSUE ONE--LEGALITY OF DETENTION requires more than just a hunch; it exists only when an officer has specific, articulable facts that, taken together The lawfulness of a detention is an essential element with reasonable inferences from those facts, would lead of evading arrest or detention which is reviewed for legal the officer to reasonably conclude the person detained is, sufficiency. See York v. State, 342 S.W.3d 528, 544 (Tex. has been, or soon will be, engaging in criminal activity. Crim. App. 2011); Woods v. State, 153 S.W.3d 413, 415 Crain, 315 S.W.3d at 52; Ford v. State, 158 S.W.3d 488, (Tex. Crim. App. 2005). See also Rodriguez v. State, 578 492 (Tex. 2005). This is an objective standard that S.W.2d 419, 420 (Tex. Crim. App. 1979) (finding disregards any subjective intent of the officer making the evidence insufficient to find a lawful arrest where officer stop and looks solely to whether an objective basis for lacked reasonable suspicion to detain suspect). Here, the stop exists. Id. A reasonable suspicion determination Appellant alleges the State did not satisfy that element.

is an objective one made by considering the totality of the circumstances. Id. at 492-93. ISSUE TWO--INEFFECTIVE ASSISTANCE OF COUNSEL By his first issue, Appellant contends the evidence is By his second issue, Appellant contends he was insufficient to support Officer Anderson's initial detention denied effective assistance of counsel at the guilt- at the apartment complex, as a lawful detention. innocence phase of his trial because his counsel failed (1) Appellant argues Officer Anderson did not have specific, to request an explanatory jury instruction concerning articulable facts [*8] to support a reasonable suspicion to reasonable suspicion to stop, (2) file a pretrial motion to detain him because, at the time of that encounter, he quash the indictment, (3) compel the State to elect the knew Appellant was not a black male, the subject of his prosecution event, and (4) make appropriate objections to pending investigation. The State has conceded that, the evidence. To support those claims, Appellant filed a during the encounter at the apartment complex Officer motion for new trial wherein he attached an affidavit Anderson did not have reasonable suspicion to believe from his trial counsel stating that it was his theory that that a crime had been committed or was in progress. In the events in question constituted one continuous evading that respect, we agree with both Appellant and the State arrest. Because Appellant's second and third complaints that the attempted initial detention was not supported by raise an issue with respect to counsel's theory of the case, adequate reasonable suspicion to warrant a lawful we will address those complaints together, before detention. That said, Appellant does not challenge the addressing the first and fourth complaints. lawfulness of Officer Anderson's subsequent detention at the motel parking lot. Because the failure to sufficiently STANDARD OF REVIEW advance the analysis of an argument can result in the The adequacy of defense counsel's assistance is waiver of that issue, Cardenas v. State, 30 S.W.3d 384, based on the totality of the representation rather than 393 (Tex. Crim. App. 2000), we find Appellant has isolated acts or omissions. Thompson v. State, 9 S.W.3d waived that issue. 808, 814 (Tex. Crim. App. 1999). Although the Notwithstanding the waiver of this issue, it is clear constitutional right to counsel ensures [*11] the right to from a review of the entire record that at the time of the reasonably effective counsel, it does not guarantee encounter at the motel parking lot, Officer Anderson was errorless counsel whose competency or accuracy of operating in good faith, under the objective (albeit representation is judged by hindsight. Robertson v. State, incorrect) assumption that Appellant had earlier 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). committed the offense of evading detention. Because a The effectiveness of counsel's representation is police officer's reasonable mistake about past facts may measured by the two-pronged test enunciated in justify [*9] his conclusion that there is reasonable Strickland v. Washington. 466 U.S. 668, 687 104 S. Ct. suspicion for purposes of an investigatory detention, 2052, 80 L. Ed.2d 674 (1984). See Hernandez v. State, Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting 2012), we conclude Officer Anderson's subsequent Strickland standard in Texas). The first prong of the attempted detention at the motel parking lot was Strickland test requires an appellant prove counsel made supported by reasonable suspicion. such serious errors that he did not function as the Furthermore, even if reasonable suspicion did not "counsel" guaranteed by the Sixth Amendment. exist at the commencement of the detention at the motel Strickland, 466 U.S. at 687. Appellant must show that parking lot, during that second encounter, Appellant counsel's performance was unreasonable under prevailing engaged in conduct that not only merited an investigatory professional norms and that the challenged action was detention, it justified a warrantless arrest. While not part of counsel's sound trial strategy. Id. at 689-90. If Appellant initially complied with Officer Anderson's deficient assistance is established, the second Strickland requests, at some point he ceased to be cooperative and prong requires an appellant affirmatively demonstrate attempted to flee. Despite Officer Anderson's attempt to prejudice; that is, a reasonable probability that, but for physically subdue him through the use of non-deadly counsel's unprofessional errors, the outcome of the case force, he continued to be combative. At some point, would have been different. Thompson, 9 S.W.3d at 812. Appellant reentered his SUV, crashed it into Officer "Reasonable probability" means probability of a degree Anderson's patrol vehicle, and sped off. Resisting an sufficient to undermine confidence in the outcome. arrest or detention is unlawful, even if the officer Strickland, 466 U.S. at 694. attempting to effect the arrest lacks reasonable suspicion Our review of counsel's performance is highly or probable cause. TEX. PENAL CODE ANN. § 38.03(b) deferential and a strong presumption exists that counsel's (West 2011); State v. Mayorga, 901 S.W.2d 943, 945 conduct fell within a wide range of reasonable (Tex. Crim. App. 1995). Giving deference to the professional assistance. Mallett v. State, 65 S.W.3d 59, 63 responsibility of the jury to weigh this evidence, we find (Tex. Crim. App. 2001). See Strickland, 466 U.S. at 689 the evidence was legally sufficient, as to the subsequent (noting [*12] there are countless ways to provide attempted detention, to establish [*10] Appellant's guilt effective assistance in any given case). To overcome the as to the offense of evading arrest or detention with a presumption of reasonable professional assistance, any vehicle. Accordingly, Appellant's first issue is overruled. allegation of ineffectiveness must be firmly rooted in the

record. Thompson, 9 S.W.3d at 813-14. The showing of 155 L. Ed. 2d 714 (2003) (stating that when a claim of ineffectiveness must warrant the conclusion of a ineffective assistance of counsel is raised on direct reviewing court that counsel's performance fell below an appeal, a trial record is usually not developed for objective standard of reasonableness as a matter of law purposes of establishing such a claim). Accordingly, and that no reasonable trial strategy could justify Appellant's second issue is overruled. counsel's acts or omissions, regardless of his subjective reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex. ISSUE THREE--CHARGE ERROR REGARDING UNANIMITY Crim. App. 2011). OF THE VERDICT

In the majority of cases, the record on direct appeal By his third issue, Appellant contends he was is simply inadequate to show that counsel's conduct fell prejudiced by the trial court's failure to instruct the jury below an objectively reasonable standard of performance. that their verdict required unanimous agreement as to the See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. prosecution event. Appellant contends the court's charge App. 2003) (stating "[w]e have previously stated that the authorized a guilty verdict if half of the jury thought he record on direct appeal will generally not be sufficient to was guilty of evading detention at the apartment show that counsel's representation was so deficient as to complex, while the other half [*15] thought he was meet the first part of the Strickland standard as the guilty of evading detention at the motel parking lot. The reasonableness of counsel's choices often involves facts State contends unanimity is not a question because there that do not appear in the appellate record."). "When such was only one evading detention or arrest offense direct evidence is not available, we will assume that presented at trial. While we disagree with the State's counsel had a strategy if any reasonably sound strategic position, we nonetheless find the question does not motivation can be imagined." Lopez, 343 S.W.3d 137, 143 present reversible error. (Tex. Crim. App. 2011). Where the offense in question is a single offense Here, based on the allegations contained [*13] in the with multiple or alternate methods of commission, indictment, there were three possible prosecution events: unanimity is required with respect to all essential (1) the encounter at the apartment complex, (2) the elements of the offense, even though jurors are not encounter at the motel, or (3) the encounter at the motel required to unanimously agree on the specific method of as a continuation of the offense commenced at the committing that offense. Miranda v. State, 391 S.W.3d apartment complex. When conduct alleged in a charging 302, 310 (Tex. Crim. App. 2012). A jury is entitled to instrument can be construed as implicating more than one return a general verdict where evidence of an alternative offense, a motion to quash is an appropriate means of manner and means of committing the charged offense is forcing the State to be more specific as to the offense submitted to the jury. Young v. State, 341 S.W.3d 417, charged. See State v. Draper, 940 S.W.2d 824, 826 (Tex. 422 (Tex. Crim. App. 2011). Here, the indictment merely App.--Austin 1997, no pet.) (holding that a trial court's averred that Appellant "on or before the 7th day of decision to quash an indictment for lack of certainty in October, A.D. 2012, did then and there, while using a indictment's allegations is a matter within the discretion vehicle, intentionally flee from [Officer Anderson], a of the trial court). Furthermore, upon a proper request, a person [Appellant] knew was a peace officer who was trial court is obligated to require the State to elect which attempting lawfully to arrest or detain the defendant." of multiple instances of an offense the State was relying Even though the jury could have concluded Appellant upon for conviction. Phillips v. State, 193 S.W.3d 904, committed that offense in more than one manner, the 909-10 (Tex. Crim. App. 2006). Given the facts of this gravamen of the offense has always been an [*16] case, we cannot say that trial counsel did not have a evading detention offense alleged to have been legitimate trial strategy in adopting a position that the committed on October 7, 2012. Appellant's third issue is events in question constituted a single continuous overruled. offense. Accordingly, Appellant has not established the first prong of the Strickland test as to these complaints. ISSUE FOUR--ILLEGAL SENTENCE Furthermore, as to the [*14] complaints that By the fourth issue contained in his Supplemental Appellant's counsel failed to request an explanatory jury Brief, Appellant contends his sentence is an illegal instruction concerning reasonable suspicion or make sentence because it exceeds the maximum sentence for a appropriate objections to the evidence, we find that the second degree felony. We agree. record is insufficiently developed to establish deficient With admirable candor, the State concedes (1) the performance in that regard. Where the alleged deficiency trial court's punishment charge erroneously fails to is an error of omission rather than commission, a require the jury to find sequential finality of the prior collateral attack by means of a post-conviction writ of felony conviction as required by section 12.42(d) of the habeas corpus is generally the more appropriate vehicle Texas Penal Code and Jordan v. State, 256 S.W.3d 286, by which to develop a detailed record of the alleged 290-91 (Tex. Crim. App. 2008), and (2) Appellant defective assistance. See Freeman v. State, 125 S.W.3d suffered egregious harm from the lack of a jury 505, 506-07 (Tex. Crim. App. 2003). See generally instruction requiring the jury to find the second previous Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, felony conviction was for an offense that occurred

subsequent to the first previous felony conviction having 12.42(d). Id. become final. As to this error, the State admits we should Based upon the findings of the jury, the lawful range reverse the sentence and remand the case for a new trial of punishment for the offense for which Appellant was on punishment. convicted was that of a second degree felony, i.e., by With certain exceptions not applicable to the facts of imprisonment for any term of not more than twenty years this case, if it is shown on the trial of a felony of the third or less than two years and by a fine not to exceed degree that the defendant has previously been finally $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2011). convicted of a felony other than a state jail felony, on Because the term of confinement assessed exceeds the conviction the defendant shall be punished for a felony of maximum term allowable by law, the punishment the second degree. [*17] 5 TEX. PENAL CODE ANN. § assessed is illegal. Ex parte Parrott, 396 S.W.3d 531, 534 12.42(a) (West Supp. 2014). Furthermore, again with (Tex. Crim. App. 2013); Farias v. State, 426 S.W.3d 198, certain exceptions not applicable here, if it is shown on 200 (Tex. App.--Houston [1st Dist.] 2013, pet. ref'd) the trial of a felony of the third degree that the defendant (holding that a sentence outside the statutory range of has previously been finally convicted of two felonies, and punishment for an offense is void and must be reversed, the second previous felony conviction was for an offense citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. that occurred subsequent to the first previous felony App. 1994)). Accordingly, Appellant's fourth issue is conviction having become final, on conviction the sustained. defendant shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 CONCLUSION years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. That portion of the verdict and judgment pertaining 2014). to Appellant's conviction is affirmed, while that portion of the verdict and judgment pertaining to Appellant's 5 While an offense may be "punished" as a [*19] punishment is reversed and this cause is remanded higher degree of felony, for purposes of the to the trial court for a new punishment trial pursuant to judgment, the offense remains the same "level of article 44.29(b) of the Texas Code of Criminal offense" provided by the particular statute under Procedure. In remanding this cause for a new which the conviction was obtained. Ford v. State, punishment hearing, we express no opinion as to 334 S.W.3d 230, 235 (Tex. Crim. App. 2011) appropriate range of punishment on retrial.6 (holding that while the punishment level may have been increased, the "level of offense" was 6 Based upon the jury findings from the first not increased). trial, the appropriate range of punishment would In this case, the indictment alleged three prior felony be that of a second degree felony. The question of convictions. The State waived the second enhancement whether the State can seek additional findings on and proceeded to trial on the basis of two prior retrial regarding the applicability of section convictions: (1) the offense of aggravated robbery in 12.42(d) of the Texas Penal Code was not an cause number 94-419,354 and (2) the offense of burglary issue before us and we expressly decline the of a habitation in cause number 2008-419,494. [*18] opportunity to offer an opinion on that question While the State did prove up these prior felony without adequate briefing. convictions, the jury was never instructed that it had to Patrick A. Pirtle find the second previous felony conviction was for an offense that occurred subsequent to the first previous Justice felony conviction having become final. Consequently, the jury never made an essential fact finding necessary to Publish. elevate the range of punishment to confinement for a minimum term of 25 years in accordance with section