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Adetomiwa v. State

Court of Appeals of Texas, Second District, Fort Worth

January 30, 2014

STEVEN IFEOLUWA ADETOMIWA, JR. A/K/A STEVEN IFEOLUWN ADETOMIWA, JR. APPELLANT
v.
THE STATE OF TEXAS STATE

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

OPINION

SUE WALKER JUSTICE

I. Introduction

Appellant Steven Ifeoluwa Adetomiwa, Jr. a/k/a Steven Ifeoluwn Adetomiwa, Jr. appeals his convictions for theft from a person and evading arrest or detention with a vehicle. See Tex. Penal Code Ann. §§ 31.03(e)(4)(B), 38.04(b)(2)(A) (West Supp. 2013). We will affirm.

II. Factual and Procedural Background

In trial court cause number 1258203D (our case number 02-12-632-CR), Appellant was indicted for evading arrest or detention with a vehicle. He was seventeen years old at the time of the offense, which occurred on October 17, 2011. He entered into a plea bargain with the State, and after accepting the plea bargain, the trial court assessed a fine of $300 and placed Appellant on deferred adjudication community supervision for three years. On July 26, 2012, the State filed a petition to proceed to adjudication, alleging that Appellant had committed robbery by threat and had failed to submit a urine sample for testing. The State filed an amended petition on November 14, 2012. Appellant pleaded true to both allegations contained in the petition to proceed to adjudication. The trial court found the allegations to be true, adjudicated Appellant's guilt, and sentenced him to five years' confinement.

In trial court cause number 1290602D (our case number 02-12-633-CR), Appellant was indicted for robbery by threat. Appellant entered an open plea of guilty to the lesser offense of theft from a person. The trial court found Appellant guilty and sentenced him to fifteen months' confinement.

Appellant timely filed a motion for new trial in each case. He argued in both motions that his pleas (of true in the evading arrest case and of guilty in the theft case) were not voluntarily made because his trial counsel told him that the trial court would place him on community supervision if he pleaded true and guilty. He also requested that the trial court modify his sentence in each case based on his youth, inexperience, and immaturity and either place him on community supervision or shorten his sentence. After a hearing, the trial court denied both motions.

III. Conviction and Sentence for Evading Arrest not Void

In his first and second issues, Appellant argues that his conviction and sentence for third-degree-felony evading arrest is void because the State pleaded and proved only state-jail-felony evading arrest and because Appellant's five-year sentence exceeds the maximum punishment of two years' confinement for a state jail felony. See id. § 12.35(a) (West Supp. 2013) (setting state-jail-felony punishment at confinement in state jail for a term of not more than two years or less than 180 days).[1] The resolution of these issues depends on whether several bills passed in the same legislative session, all amending the evading arrest statute, are reconcilable. Thus, we turn to a history of these bills.

In the 2011 regular session, the legislature passed three bills amending the evading arrest statute. See Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2320–21 (West) (current version at Tex. Penal Code Ann. § 38.04); Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess. Law Serv. 2110, 2111 (West) (current version at Tex. Penal Code Ann. § 38.04); Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011 Tex. Sess. Law Serv. 1046, 1046 (West) (current version at Tex. Penal Code Ann. § 38.04). Senate Bill 496 and House Bill 3423 both provide that evading arrest is a state jail felony if the actor uses a vehicle while in flight. However, Senate Bill 1416 provides that evading arrest is a third degree felony if the actor uses a vehicle while in flight. These two differing punishment schemes are both codified in section 38.04:

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator ...

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