Sammy Vidales v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 07-13-00286-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00286-CR ________________________

SAMMY VIDALES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2012-436,579; Honorable John J. McClendon III, Presiding

October 28, 2014

ORDER TO REBRIEF ISSUES

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Sammy Vidales, was convicted by a jury of evading arrest or detention

with a vehicle,1 enhanced by two prior felony convictions, and sentenced to sixty-two

years confinement. By three issues, Appellant contends (1) his initial detention was not

lawful because there were no specific and articulable facts supporting reasonable

suspicion to detain him, (2) his trial counsel was ineffective and (3) error in the jury 1 TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Effective September 1, 2011, the offense of evading arrest with a vehicle is a third degree felony. See Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Gen. Laws 2321, 2322. charge failed to instruct the jury on unanimity of the verdict regarding what he perceived

to be two separate evading arrest offenses allegedly committed on the same date. The

State responded to Appellant’s briefing and the case was submitted to this Court on the

briefs.

In our review of the record in this case, we have discovered a previously

unassigned, potentially meritorious issue concerning the legality of the sentence

imposed. Specifically, the Charge of the Court on Punishment describes two prior

felony convictions, each of which became “final prior to the commission of the offense of

which you have just found [Appellant] guilty,” i.e., the offense of evading arrest;

however, it does not submit to the jury the question as to whether “the second previous

felony conviction is for an offense that occurred subsequent to the first previous

conviction having become final.” See TEX. PENAL CODE ANN. § 12.42(d) (West Supp.

2014). Accordingly, a question exists as to the appropriate range of punishment: (1)

two to twenty years pursuant to § 12.42(a) or (2) twenty-five to ninety-nine years

pursuant to § 12.42(d).

In the interest of justice, and out of an abundance of fairness to all parties, this

Court hereby assigns this issue as potential error and directs both parties to file

additional briefing. Appellant is granted thirty days from the date of this order to file a

supplemental brief and the State is granted thirty days from the date Appellant’s

supplemental brief is filed to file a reply brief.

Per Curiam

Do not publish. 2