No. 01-05-00292-CR
Opinion issued April 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 994680.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
LAURA CARTER HIGLEY, Justice.
Joseph Anthony Crawford, appellant, was charged with the third degree felony of evading arrest or detention using a vehicle. TEX. PEN. CODE ANN. § 38.04 (Vernon 2003). The jury found appellant guilty. After a punishment hearing, the trial court assessed punishment at 35 years' confinement in prison. In two points of error, appellant argues that (1) the evidence was legally and factually insufficient to prove venue and (2) the State failed to present evidence during the guilt-innocence phase of the trial that appellant had been previously convicted of evading arrest or detention. We affirm in part and reverse and remand in part.
Background
On July 19, 2004, Deputy Gary Smidt was driving in his usual patrol area when he saw a car that had been linked to a recent aggravated robbery. Deputy Smidt turned on his lights and sirens. Appellant, the driver of the car, immediately sped away. Deputy Smidt followed appellant a short distance to an apartment complex that appellant had pulled into. Appellant was charged with evading arrest or detention. At trial, Deputy Smidt was the sole testifying witness for the State. Deputy Smidt described the location where he first spotted appellant, as well as the route he and appellant took during the pursuit. However, the State did not establish whether any of these locations were located in Harris County. The State did not present evidence of appellant's prior conviction of evading arrest or detention until the punishment phase of the trial. Venue
In his first point of error, appellant argues that the evidence is legally and factually insufficient to establish that the venue was Harris County. Deputy Smidt testified that he first located appellant near the intersection of Westfield Place Drive and Hollow Tree Lane in Houston, Texas. Deputy Smidt then followed appellant onto Cypress Station Drive and then onto Cypress Trace Road. Appellant then pulled into an apartment complex on Cypress Trace Road. We take judicial notice that all of these locations are within Harris County. See TEX. R. EVID. 201; Watts v. State, 99 S.W.3d 604, 610 (Tex.Crim.App. 2003) (holding appellate court can take judicial notice that a city is within a county for purposes of venue); Issac v. State, 982 S.W.2d 96, 99-100 (Tex.App.-Houston [1st Dist.] 1998), aff'd, 989 S.W.2d 754 (Tex.Crim.App. 1999) (taking judicial notice that place where defendant was stopped was within Harris County). Accordingly, we hold that the evidence is legally and factually sufficient to establish venue. We overrule appellant's first point of error. Prior Conviction
In his second point of error, appellant argues that the State was required to present evidence during the guilt-innocence phase of the trial that appellant had been previously convicted of evading arrest or detention. The State did not present such evidence until the punishment phase. The facts of this case pertaining to this point of error are identical to those in Calton v. State, 132 S.W.3d 29 (Tex.App.-Fort Worth 2004). In both Calton and this case, (1) the defendants were charged with the third degree felony of evading arrest or detention, (2) the defendants had previously been convicted of evading arrest or detention, (3) the State did not present evidence of the previous convictions during the guilt-innocence phase of the trial, and (4) the jury charge did not require the jury to find that the defendants had been previously convicted of evading arrest or detention. Id. at 31-34. The Fort Worth Court of Appeals held in Calton that section 38.04 of the Texas Penal Code required the State to present evidence of Calton's previous conviction of evading arrest or detention. Id. at 32-33; TEX. PEN. CODE ANN. § 38.04(b)(2)(A). After the parties to this case submitted their briefs, the Court of Criminal Appeals issued its opinion reviewing the Fort Worth Court of Appeal's decision. Calton v. State, 176 S.W.3d 231 (Tex.Crim.App. 2005). The Court of Criminal Appeals affirmed the decision, holding that the plain language of the statue requires proof of a defendant's prior convictions of evading arrest or detention to be presented during the guilt-innocence phase of the trial. Id. at 234. Accordingly, we hold that the evidence was legally insufficient to support appellant's conviction of the third degree felony of evading arrest or detention. However, the charge to the jury under which the jury convicted appellant was sufficient to support a conviction of the lesser-included offense of the state jail felony of evading arrest or detention. We are therefore authorized to reform the judgment. Calton, 132 S.W.3d at 34; Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999). We sustain appellant's second point of error. Conclusion
We reform the judgment to reflect a conviction of the state jail felony of evading arrest or detention. We affirm the conviction as reformed, but we reverse and remand this case for a new trial on punishment.