Enrique Sanchez Salazar v. State
13-14-00563-CR
Tex. App.Jan 27, 2015Background
- Appellant convicted of evading arrest with a vehicle, a third-degree felony under §38.04(b)(2)(A).
- Trial court sentenced Appellant to 38 years, with habitual-offender enhancements under §12.42(d).
- Appellant challenged lack of jury instruction on the lesser-included offense evading arrest on foot under §38.04(a).
- Trial court admitted privileged communications from Appellant’s defense attorney relating to a federal case.
- Legislation in 2011 created competing classifications for §38.04 (state jail vs third degree) causing ambiguity; appellate review considered lenity and validity of the predicate-state-jail conviction for enhancements.
- Appellant sought reversal and, in the alternative, remand for re-sentencing or new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is evading arrest on foot a lesser included offense of evading arrest with a vehicle? | Salazar argues yes; scintilla evidence supports the foot evasion. | State contends Hobbs/Lara preclude separation of offenses. | Yes; foot evasion is a lesser included offense; trial court erred in not instructing. |
| Did the trial court’s omission harm Salazar beyond harmless error? | Some evidence supports the lesser offense; error prejudiced sentencing. | Harmless due to other evidence. | Not harmless; error material to conviction/sentencing. |
| Was the attorney-client privileged testimony properly admitted under Rule 503(B)(2)? | Admission of privileged statements was reversible error. | Testimony admissible as exception to privilege. | Abuse of discretion; harmful error. |
| Can a state jail felony predicate justify habitual-offender enhancement under §12.42(d)? | 2009 conviction is a state jail felony; permissible predicate. | 2009 conviction is not properly pled/eligible for §12.42(d). | Improper predicate; enhancement unlawful; sentence illegal; remand needed. |
| Should the court apply the 38.04 statute in a way that yields a state jail felony under lenity due to ambiguity? | Ambiguity favors lesser punishment (state jail). | Ambiguity unresolved; prior decisions control. | Ambiguity warrants lenity; prefer state-jail classification and remand for re-sentencing. |
Key Cases Cited
- Hobbs v. State, 175 S.W.3d 777 (Tex.Crim.App. 2005) (separation of evading-with-vehicle and evading on foot not recognized; facts-driven)
- Powell v. State, 206 S.W.3d 142 (Tex.App.—Waco 2007) (evading on foot as lesser included offense not supported where undisputed driver)
- Sweed v. State, 351 S.W.3d 63 (Tex.Crim.App. 2011) (scintilla standard for lesser-included-offense instructions)
- Adetomiwa v. State, 421 S.W.3d 922 (Tex.App.—Fort Worth 2014) (statutory ambiguity and Code Construction Act analysis for §38.04 classifications)
- Ex parte Harris, 495 S.W.2d 231 (Tex.Crim.App. 1973) (basic rule on illegal sentences when outside authorized punishment)
- Mizell v. State, 119 S.W.3d 804 (Tex.Crim.App. 2003) (illegal sentence when punishment is outside maximum/minimum range)
- Harvill v. State, 13 S.W.3d 478 (Tex.App.-Corpus Christi 2000) (fundamental error when sentence not authorized by law)