Bunton v. State

• Decision Date: 13 May 2004
• Docket Number: No. 03-03-00017-CR.,03-03-00017-CR.
• Citation: Bunton v. State, 136 S.W.3d 355 (Tex. App. 2004)
• Parties: Charles BUNTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

136 S.W.3d 355

Charles BUNTON, Appellant, v. The STATE of Texas, Appellee.

No. 03-03-00017-CR.

Court of Appeals of Texas, Austin.

May 13, 2004.

Connie J. Kelley, Austin, TX, for Appellant.

C. Bryan Case, Jr., Assistant District Attorney, Austin, TX, for Appellee.

Before Justices KIDD, B.A. SMITH and ONION.^*

OPINION

JOHN F. ONION, JR., Justice.

Appellant appeals his state jail felony conviction for evading arrest by use of a vehicle. See Tex. Pen.Code Ann. § 38.04(b)(1) (West 2003). The alleged offense became an aggravated state jail felony under section 12.35(c)(1) by allegation, proof, and an affirmative finding by the jury of the use of a deadly weapon, a motor vehicle, during the commission of the offense. See Tex. Pen.Code Ann. § 12.35(c)(1) (West 2003). Upon subsequent proof of the two prior felony convictions alleged for enhancement of punishment, the trial court submitted to the jury the range of punishment under section 12.42(d) of the Texas Penal Code, the habitual criminal statute.¹ The jury assessed punishment at thirty years' imprisonment.

Points of Error

Appellant advances nine points of error in the form of questions. When this occurs, it is often difficult for the appellate court to revise and restate the issues without losing something in the translation. Some of appellant's issues are new or novel. We have chosen to use appellant's own questions to demonstrate what has been presented for resolution. A tenth point of error has been added by supplemental brief.

QUESTION NO. ONE

Was it error to interpret P.C. § 12.42(d) as being applicable to appellant's state jail felony conviction?

QUESTION NO. TWO

Had there been sufficient notice of the State's intention to seek to have appellant punished as a habitual offender, to authorize an instruction in the jury charge giving the applicable punishment range as 25-99 years or life?

QUESTION NO. THREE

Did appellant receive multiple punishments in violation of the double jeopardy clause of the U.S. Constitution when his punishment which had been enhanced under P.C. § 12.35(c)(1) was further enhanced under P.C. § 12.42(d)?

QUESTION NO. FOUR

Was testimony of extraneous offenses and bad conduct which were not shown to have been reported to law enforcement before or during police attempts to stop the driver of the fleeing vehicle relevant under T.R.E., rule 401?

QUESTION NO. FIVE

Did testimony of extraneous offenses and bad conduct which were not shown to have been reported to law enforcement before or during police attempts to stop the driver of the fleeing vehicle violate T.R.E., rule 404(b)?

QUESTION NO. SIX

May a witness testify to the substance of a conversation with a nontestifying witness who alleged that appellant made certain statements, when the testifying witness has no firsthand knowledge that such statements were ever made?

QUESTION NO. SEVEN

Was evidence of an extraneous offense relevant when such offense was separate from and prior to the alleged assault which was the basis of police involvement?

QUESTION NO. EIGHT

Was it error under C.C.P., rule 404(b) for the court to admit evidence of an extraneous offense which was separate from and prior to the alleged assault which was the basis of police involvement?

QUESTION NO. NINE

Was the evidence factually sufficient to support the finding that appellant used or exhibited a deadly weapon during the course of the offense?

Point of Error Ten

After the submission of this cause, appellant filed a motion to supplement his brief and add another point of error. The motion was granted. The tenth point of error, germane to Question No. 6, asserts:

Appellant was deprived of his rights to confront and cross-examine the witnesses when the trial court allowed a police officer to testify what a nontestifying witness, Tony Rogers, told him during the course of the investigation.

We will affirm the judgment of conviction.

Background

Appellant does not challenge the legal sufficiency of the evidence to support the conviction and makes only a limited factual sufficiency claim. A brief recitation of the facts, however, will place the points of error in proper perspective.

On the night of January 11, 2002, Austin Police Officer Alvin Rhoden responded to a call about a man with a gun. He arrived at 8202 Riverstone, Apartment A, in Austin after eleven o'clock. Rhoden talked to Rose Presley, the occupant of the apartment, then to Armando Zamore, who said that he had been pistol whipped in the face. Rhoden also talked to Tony Rogers, who was at the scene at the time of the reported incident. The suspect's name was given as Charles Mason. Rhoden reported that he learned that the suspect left the Riverstone address in a cream colored or white two-door El Dorado Cadillac automobile² with chrome blade rims (wheel covers). The license plate number given was L54-CSG. The male suspect was described as weighing 240 pounds, dressed in black pants, white T-shirt, and checkered flannel jacket. This information was forwarded to the dispatcher.

Officer Leif Eric Guevara was on patrol on the night in question when he received the description of the suspect, the vehicle, and the license plate number. Shortly thereafter, at the intersection of Springdale and Martin Luther King, he observed a vehicle that fit the description given with the license plate number L54-GSG. He knew citizens often confuse G and C in reporting license plate numbers. Officer Guevara drove past the Cadillac and determined that the driver matched the description of the suspect. Guevara turned his patrol unit around, turned on its overhead lights, and caused the Cadillac to pull over. Guevara then waited for a back-up unit that soon arrived driven by Officer Nathan Flippin. Both officers got out of their patrol units with their weapons drawn, as the suspect had been reported to be armed. As they approached the Cadillac, Guevara gave certain commands to the driver in order to effectuate the stop or arrest. In the midst of these instructions, the man drove off in the Cadillac. The officers returned to their units and gave chase. Guevara testified that appellant ran a red light at the intersection of Springdale and 51st Streets. Officer Flippin filmed the chase with his car video camera. He testified that his vehicle reached speeds of 100 miles per hour during the chase. After some distance, the chase was unsuccessfully terminated. Guevara later made an in-court identification of appellant as the driver.

The police discovered that Charles Mason was not appellant's name. By investigation and use of a computer assisted dispatch system (CAD), Detective Allen Hicks learned that appellant's name was Charles Bunton. Appellant was arrested on March 21, 2002 at a pawn shop at 4700 South Congress. He tried to leave the scene in a green or lime green Cadillac and bumped into a police vehicle before he was apprehended. An investigator for the district attorney's office determined that the impounded Cadillac had been repainted from its original color. Other testimony revealed that vehicle identification number (VIN) of the Cadillac was GCEL12B9PU604489 and this was the VIN on the vehicle to which the Texas license plate L54-GSG had been issued. Evidence was offered that no two VINs are alike.

Appellant called Armando Zamora to testify. He was not a fact witness to the offense of evading arrest, but the victim of the aggravated assault out of which the instant offense arose. Zamora, who was about to leave for prison as a result of a conviction for robbery by assault, related that appellant had hit him, but he did not know whether it was a gun, a fist, or a shoe. Zamora said he and appellant were "homeboys," and that appellant had helped him get off of drugs, though he still was using drugs at the time of the assault.

Appellant testified that he was at the Riverstone address on January 11, 2002, but he was driving his red Mustang automobile; that it was his friend, Emilio Rodriguez, who drove off in the Cadillac. Appellant revealed that it was early the next morning, about 4:30 a.m., when Emilio called him and told him of the police chase.

Appellant testified that Zamora lied about what happened, but then confessed that he had hit Zamora because Zamora had stolen $5,000 from him. Appellant denied that a pistol or gun had been used. Appellant acknowledged that he had previously been convicted of the two prior felony convictions alleged—aggravated assault on a correctional officer and attempted burglary of a habitation. He also admitted convictions for theft and an assault on a woman.

Applicability of the Habitual Criminal Statute to State Jail Felonies

By virtue of his first question, appellant claims that the trial court erred in interpreting section 12.42(d), the habitual criminal statute, as being applicable to the instant state jail felony conviction. Appellant urges that fundamental error was committed in the jury charge at the punishment phase of the trial when the jury was authorized to fix punishment under section 12.42(d). See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g).³

The legislature has the constitutional authority to define crimes and fix penalties. See Frieling v. State, 67 S.W.3d 462, 468 (Tex.App.-Austin 2002, pet. ref'd). In accordance with that "authority," section 38.04 of the Penal Code has been enacted defining the offense of evading arrest. See Tex. Pen.Code Ann. § 38.04 (West 2003). Basically, the offense is a class B misdemeanor, see § 38.04(a), with the range of punishment being confinement in the county jail for a term not to exceed 180 days and a fine not to exceed $2000. See Tex. Pen.Code Ann. § 12.22 (West 2003). Section 38.04 is a complex statute, however, providing for the elevation, enhancement, or upgrading of the offense itself to different degrees or levels of felony offenses depending on certain circumstances.⁴ When the offense is upgraded, the punishment then applicable will come...