Throneberry v. State

• Decision Date: 28 February 2002
• Docket Number: No. 2-01-079-CR.,2-01-079-CR.
• Citation: 72 S.W.3d 389
• Parties: Orvell Daniel THRONEBERRY, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

72 S.W.3d 389

Orvell Daniel THRONEBERRY, Appellant, v. The STATE of Texas, State.

No. 2-01-079-CR.

Court of Appeals of Texas, Fort Worth.

February 28, 2002.

Rehearing Overruled April 11, 2002.

Publication Ordered May 2, 2002.

Discretionary Review Dismissed June 19, 2002.

James Rasmussen, Wichita Falls, for appellant.

Tim Cole, District Attorney, Montague, for appellee.

PANEL B: HOLMAN, GARDNER, and WALKER, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Orvell Daniel Throneberry appeals his conviction and twenty-five-year sentence for felony evading arrest. Appellant asserts three points: (1) the trial court lacked jurisdiction to try the instant offense as a third degree felony under penal code section 38.04 because Appellant's prior evading arrest conviction was not a "final conviction"; (2) the trial court erred in overruling Appellant's motion for instructed verdict because there was insufficient evidence that the officer who arrested Appellant was "attempting a lawful arrest" as alleged in the indictment; and (3) Appellant's prosecution for felony evading arrest violated Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App.1997) because the State did not plead its notice of intent to include a sentence enhancement paragraph "in some form." We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 6, 1999, Officer Art Ferguson investigated a vandalism call. The officer encountered Appellant's car exiting an alleyway and "fishtailing" as it accelerated into the street. Though the officer began to pursue Appellant's vehicle with his lights and siren on, Appellant fled. After a high-speed vehicle chase and a chase on foot, the officer finally apprehended and arrested Appellant.

Appellant's trial took place on January 10 and 11, 2001. Appellant had previously been convicted of felony aggravated assault with a firearm and two other felony convictions for theft. Appellant had also pled guilty to a charge of evading arrest in 1992, a Class B misdemeanor, for which he received a five-day probated jail sentence. Because of Appellant's prior evading arrest conviction, the primary evading arrest charge was elevated to third degree felony status under penal code section 38.04. Tex. Penal Code Ann. § 38.04(b)(2)(A) (Vernon Supp.2002). Due to Appellant's three prior felony convictions, his sentence was enhanced to a minimum of twenty-five years under section 12.42(d) of the penal code. Tex. Penal Code Ann. § 12.42(d).

JURISDICTION

In his first point, Appellant asserts that the trial court lacked jurisdiction over the instant case because the prior evading arrest charge used to enhance the instant offense from a misdemeanor to a third degree felony resulted in probation rather than a "final conviction." The elements of the offense of felony evading arrest under section 38.04(a), (b)(2) are: (1) the actor intentionally fled from a person he knew was a peace officer attempting to lawfully arrest him; (2) the actor used a vehicle in fleeing from the officer; and (3) the actor has been previously convicted under section 38.04. Tex. Penal Code Ann. § 38.04(a), (b)(2)(A). The language in section 38.04(b)(2) that makes the offense of evading arrest a third degree felony is presented as an element of the felony offense itself, rather than as an enhancement provision, such as can be found in section 12.42 of the penal code. See Tex. Penal Code Ann. § 12.42 (providing penalties for repeat and habitual felony offenders); State v. Atwood, 16 S.W.3d 192, 196 (Tex. App.-Beaumont 2000, pet. ref'd) (holding "a prior offense of evading arrest is an element of the offense of felony evading arrest" (emphasis added)).

Appellant argues the well-established principle espoused in Ex parte Murchison, that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted, applies in his case. 560 S.W.2d 654, 656 (Tex.Crim.App.1978). However, Appellant ignores a fine distinction set forth in Murchison and its progeny, which is that an order of probation, though it may not be considered a "final conviction" for enhancement purposes, is nonetheless a conviction. In other words,

It is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked. When a defendant receives "regular" probation ... he is convicted and punishment is assessed. However, the imposition of the sentence is suspended, and the conviction does not become final for purposes of enhancement unless the probation is revoked. [Emphasis added.]

Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App.1992) (citations omitted); see also Murchison, 560 S.W.2d at 656.

Because Appellant's prior evading arrest conviction is an element of the instant offense, rather than a means by which the instant offense is merely enhanced, the Murchison rule requiring that a conviction be final for enhancement purposes does not apply. The indictment here alleges a previous conviction for evading arrest, which is sufficient to vest the trial court with felony jurisdiction over Appellant's case. "[J]urisdiction vests when the pleadings are submitted to the trial court and contain the requisite number of previous convictions." Atwood, 16 S.W.3d at 194 (quoting Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000)). We overrule Appellant's first point.

SUFFICIENCY OF THE EVIDENCE

Appellant's second point asserts that the trial court erred by overruling his motion for instructed verdict because there was insufficient evidence to prove he was evading a peace officer who was "attempting lawfully to arrest" him as required by penal code section 38.04. See Tex. Penal Code Ann. § 38.04. A challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991); Jackson v. State, 50 S.W.3d 579, 597 (Tex.App.-Fort Worth 2001, pets. ref'd). Though section 38.04 states that the peace officer must be attempting lawfully to arrest or detain the defendant, the indictment charging Appellant with the offense alleged only that the officer was attempting lawfully to arrest Appellant. Therefore, the State was required to prove that Officer Ferguson was attempting to lawfully arrest him.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim. App.2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Appellant argues the evidence was insufficient to show Officer Ferguson was "attempting" a "lawful arrest" of him at the moment he emerged from the alleyway and the pursuit began. As a general rule, police officers must obtain an arrest warrant prior to taking someone into custody. DeJarnette v. State, 732 S.W.2d 346, 349 (Tex.Crim.App.1987). However, chapter 14 of the code of criminal procedure provides limited exceptions to this rule. Tex.Code Crim. Proc. Ann. arts. 14.01-.04 (Vernon 1977 & Supp.2002). A police officer may make a warrantless arrest for any offense committed in his presence or within his view. Id. arts. 14.01(b), 14.03. The State argues that article 14.01(b) applies, which justifies a warrantless arrest for a misdemeanor offense being committed in an officer's presence. Id. art. 14.01(b) (Vernon 1977).

Officer Ferguson testified that he encountered Appellant's vehicle around 1:35 a.m. while investigating reports that several windows in cars and buildings in the area had been broken by vandals throwing rocks and bricks. Ferguson observed Appellant's vehicle turn off the street into an alley where Ferguson knew discarded bricks were available. There was testimony that Ferguson suspected that vandals had been getting the bricks from the area. Ferguson testified that it was "unusual" for a car to be in an alley at that time of night in downtown Bowie, and felt that it was "suspicious" in light of the vandalism that was taking place in the area. Ferguson drove around to the end of the alley where he knew Appellant's car would have to exit onto Hulme Street. As Ferguson turned onto Hulme, he observed Appellant's car "fishtail" out of the alley without stopping. Both Officer Ferguson and his passenger, who was a city councilman on a "ride-along," testified that Appellant's headlights were not turned on when he exited the alley. Ferguson's police report, however, indicated that Appellant turned the lights off about 100 yards down the street after he exited the alley. Ferguson further testified that, when he observed Appellant's car fishtail out of the alley, he activated his emergency lights and siren in an attempt to stop Appellant's vehicle.

According to these facts, the jury could reasonably have found that Appellant violated section 545.256 of the transportation code, which provides: "An operator emerging from an alley, driveway, or building in a business or residence district shall ... stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway." Tex. Transp. Code Ann. § 545.256(1) (Vernon 1999). Though the testimony reflected that there was no sidewalk crossing in front of the entrance or exit from...