The opinion
ACCEPTED
06-15-00083-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/3/2015 2:11:28 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00083-CR
__________________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
TEXARKANA, TEXAS
TEXAS 11/3/2015 2:11:28 PM
DEBBIE AUTREY
__________________________________________________________________
Clerk
ROBERT JUSTIN MOORHEAD
Appellant,
v.
THE STATE OF TEXAS
Appellee.
__________________________________________________________________
On Appeal from Cause No. 44,128-A
In the 188th Judicial District Court of Gregg County, Texas
Honorable David Brabham, Presiding Judge
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Jonathan Wharton
SNOW E. BUSH, JR., P.C.
Texas State Bar No. 24075764
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax (903) 753-7278
jonathanwharton1@sbcglobal.net
ATTORNEY FOR APPELLANT
ROBERT JUSTIN MOORHEAD
November 6, 2015
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant
lists the following parties affected by this appeal, and their respective appellate and
trial counsel:
Appellant: Robert Justin Moorhead
Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
Tel. 903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Court-Appointed Appellate Counsel for Robert Justin Moorhead
Kevin G. Giddens
1215 Pruitt Place
Tyler, TX 75703
Tel. 903.526.9000
Appointed Trial Counsel for Robert Justin Moorhead
Appellee: The State of Texas
Zan Brown
Gregg County District Attorney’s Office
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Appellate Counsel for the State of Texas
Debbie Garrett
Gregg County District Attorney’s Office
1
101 East Methvin Street, Suite 333
Longview, TX 75601-7252
Tel. 903.236.8440
Fax 903.236.8490
Trial Counsel for the State of Texas
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
NO REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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INDEX OF AUTHORITIES
STATUTES
Tex. Pen. Code § 12.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Pen. Code § 12.42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Pen. Code § 12.425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Pen. Code § 22.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Pen. Code § 38.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CASES
Baker v. State, 278 S.W.3d 923 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . 9
Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . 10
Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . 10
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . 10
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STATEMENT OF THE CASE
Robert Justin Moorhead pled guilty to aggravated assault and evading arrest
with a vehicle. 3 RR 7. The case was tried to the court on punishment. 3 RR 11. The
trial court convicted him, found the enhancement paragraphs true, and sentenced him
to fifteen years in the penitentiary on both charges, to run concurrently, with a deadly
weapon finding on the aggravated assault. 4 RR 41-42.
NO REQUEST FOR ORAL ARGUMENT
Because this case is not very complex, the court’s decisional process would not
benefit from oral argument.
ISSUES PRESENTED
1. The defendant was indicted for the state-jail felony offense of evading arrest
with a motor vehicle and was sentenced to fifteen years confinement. Is the
sentence illegal?
STATEMENT OF FACTS
Robert Justin Moorhead was indicted for aggravated assault and evading arrest
with a vehicle. CR 5. The indictment included an enhancement paragraph based on
a prior conviction for harassment of a public servant. CR 5. After admonishments,
Moorhead waived his right to a jury trial. 2 RR 4-7; CR 15. He pled guilty and
proceeded to a bench trial on punishment. 3 RR 7-9 .
The trial court and the prosecution thought that evading arrest with a motor
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vehicle is ordinarily a third-degree felony. 3 RR 13. But evading arrest is a state jail
felony unless the defendant has a previous conviction for evading arrest. Tex. Pen.
Code § 38.04(b). Based on the belief that the evading charge was a third-degree
felony, the trial court thought it was enhanced to a second-degree felony by
Moorhead’s prior conviction. The trial court assessed punishment at fifteen years in
the penitentiary on both the evading arrest and aggravated assault charges, to run
concurrently. 4 RR 41-42.
SUMMARY OF THE ARGUMENT
Evading arrest with a motor vehicle is a state jail felony. The indictment did not
allege facts that would enhance the charge to a second-degree felony. The sentence
of fifteen years is an illegal sentence for a state jail felony conviction, so the case
should be remanded to the trial court for a new sentencing hearing.
ARGUMENT
I. The Fifteen-Year Sentence is Illegal
A. Moorhead Was Indicted for the State-Jail Felony Offense of
Evading Arrest with a Motor Vehicle
Moorhead was sentenced to fifteen years for evading arrest with a motor
vehicle. 4 RR 41-42. The reason is that the trial court thought that the evading arrest
with a motor vehicle charge was a third-degree felony. 3 RR 13. If that were true, the
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third-degree charge would enhance to a second-degree felony based on a single
previous felony conviction, as the trial court was led to believe. Tex. Pen. Code §
12.42(a); 3 RR 13 (“The Court: On the Count II of the indictment, evading arrest or
detention with a vehicle, that is a—ordinarily, a third-degree felony. Counsel, now
with the enhancement it would be a second-degree felony punishment range; is that
correct? [The Prosecution]: Yes, Your Honor, that’s correct.”)
Normally, evading arrest with a motor vehicle is a state jail felony, though.
Tex. Pen. Code § 38.04(b)(1). It is only a third-degree felony if the defendant has
previously been convicted of evading arrest or if someone suffers serious bodily
injury as a result of the flight. Tex. Pen. Code § 38.04(b)(2). The indictment did not
allege either a previous evading arrest conviction or serious bodily injury. CR 5.
Thus, the evading arrest charge as indicted was a state jail felony.
State jail felonies may be enhanced based on previous convictions. Tex. Pen.
Code § 12.35; Tex. Pen. Code § 12.425. There are three ways for state jail felonies
to become second-degree felonies: (1) two previous, sequential convictions for third-
degree-and-up felonies; (2) a two-step process involving a deadly weapon finding;
or (3) a previous felony conviction with an affirmative deadly weapon finding or
certain enumerated crimes like human trafficking. Tex. Pen. Code § 12.425(b)-(c);
Tex. Pen. Code § 12.35(c)(2). The indictment does not allege any of those
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enhancements.
As for (1) and (3), the indictment does not contain anything about the two
previous, sequential convictions for felonies. It also does not allege a previous
conviction involving the enumerated crimes or an affirmative deadly weapon finding.
CR 5; Tex. Pen. Code § 12.35(c)(2) (enumerating crimes); see also State’s Exhibit
3A (charge used for enhancement did not have a deadly weapon finding and did not
involve one of the enumerated crimes).
The indictment does not allege an enhancement under option (2) either. The
two-step process for enhancing state jail felonies to second-degree felonies works as
follows. First, state jail felonies may be enhanced to third-degree felonies if a deadly
weapon was used in the commission of the offense. Tex. Pen. Code § 12.35(c).
Second, the charge is further enhanced up to a second-degree felony if the defendant
has also previously been convicted of a third-degree felony or greater. Tex. Pen. Code
§ 12.425(c). The State alleged step two, which is that Moorhead had previously been
convicted of harassing a public servant, a third-degree felony. CR 5; Tex. Pen. Code
§ 22.11(b). But the State did not satisfy step one, which was to allege that Moorhead
used a deadly weapon in the commission of the evading charge. CR 5. The only
mention of a deadly weapon is under “Count I,” which alleges that Moorhead
committed aggravated assault with a deadly weapon. “Count II,” the evading arrest
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count, does not allege the use of a deadly weapon. CR 5.
B. The Indictment Did Not Authorize a Second-Degree Felony
Conviction for Evading Arrest with a Motor Vehicle
Defendants cannot be convicted of crimes they were not indicted for, and
Moorhead was not indicted for third-degree felony evading arrest with a motor
vehicle, and no enhancement was alleged that would enhance his state jail felony
offense to a second-degree felony. Martinez v. State, 225 S.W.3d 550, 554 (Tex.
Crim. App. 2007). “Permitting more convictions than authorized by the indictment
implicates a defendant's due-process right to notice. . . . The charge must be known
before the proceedings commence, and the charges cannot be amended (nor added to),
once the proceedings are underway.” Id.
The indictment did not authorize a conviction for second-degree felony evading
arrest. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The “law” as
“authorized by the indictment” means the statutory elements of the law as modified
by the charging instrument. Curry, 30 S.W.3d at 404. The charging instrument sets
out a state jail felony offense, so the conviction is for a state jail felony offense. There
is legally insufficient evidence to support a second-degree felony offense based on
the indictment in this case. It would be a violation of Moorhead’s due process right
to notice under the Fourteenth Amendment to permit a conviction for an offense that
9
was not alleged in his indictment. Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim.
App. 2007).
C. The Fifteen-Year Sentence is Illegal and Therefore a New Sentencing
Hearing is Required
Because Moorhead was indicted and convicted of a state jail felony offense,
his sentence of fifteen years is outside the statutory punishment range and is thus
illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Illegal
sentences are void, and the problem may be raised at any time without the necessity
of an objection. Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991). This
case should be remanded to the trial court for a new sentencing hearing. See Baker
v. State, 278 S.W.3d 923, 927 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
PRAYER
Robert Justin Moorhead respectfully requests that this Court remand this
case to the trial court for a new sentencing hearing on the evading-arrest-with-a-
motor-vehicle charge.
Respectfully submitted,
SNOW E. BUSH, JR., P.C.
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax. (903) 753-7278
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E-mail: jonathanwharton1@sbcglobal.net
By: /s/ Jonathan Wharton
JONATHAN WHARTON
STATE BAR NO. 24075764
ATTORNEY FOR APPELLANT,
ROBERT JUSTIN MOORHEAD
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has
been delivered to Zan Brown, counsel for appellee, on this the 3d day of
November, 2015.
/s/ Jonathan Wharton
JONATHAN WHARTON
CERTIFICATE OF COMPLIANCE
I hereby certify that the Appellants Brief (as measured under Tex. R. App.
P. 9.4(i)(1)) contains 1,283 words as counted by Microsoft WordPerfect on this
the 3d day of November, 2015.
/s/ Jonathan Wharton
JONATHAN WHARTON
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