In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00123-CR __________________
TRAYLIN COTY WATKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 18-30034 __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Traylin Coty Watkins (Watkins, Defendant, or
Appellant) for evading arrest or detention with a vehicle, and the indictment alleged
that Watkins “did then and there intentionally flee from Isiah Volrie, a person the
Defendant knew was a peace officer who was attempting lawfully to detain the
Defendant, and the Defendant used a vehicle while the Defendant was in flight[.]”
See Tex. Penal Code Ann. § 38.04(a), (b)(2). A jury found Watkins guilty of the
offense and assessed punishment at three years of confinement in the Texas
1 Department of Criminal Justice-Institutional Division. The trial court sentenced
Watkins and he timely appealed. Watkins lists sixteen issues on appeal which will
be grouped together based on the nature of the stated challenges. Finding no error,
we affirm the trial court’s judgment.
Evidence at Trial
Officer Isiah Volrie, a patrol officer with the Beaumont Police Department,
testified that he was wearing his department-issued police uniform and was on patrol
in his marked patrol car on September 16, 2017, when he observed a tan colored
vehicle run a stop sign. Officer Volrie attempted to catch up to the vehicle and
activated his vehicle’s emergency lights to initiate a traffic stop. The vehicle pulled
behind a residence and “came out the back of it” towards Liberty, a westbound only
road, “went the opposite way on traffic, ran through a few more blocks, came down
11th Street, went back the wrong way on traffic and stopped back at the same
residence.” The dash cam video from Officer Volrie’s patrol car of the events that
night was admitted into evidence and published to the jury.
According to Officer Volrie, at one point, the driver’s side door of the tan
vehicle opened and “a dark-skinned black male, [with] a thick build [and] with what
looked to be a Chicago Bulls hat on[]” looked out and ran out of the vehicle while
the vehicle was moving. Officer Volrie testified that he “partially saw the side of
[the suspect’s] face when he turned around and looked at me when I ran.” Officer
2 Volrie testified that the vehicle came to rest at a pole at a carport. Due to a previous
injury, Officer Volrie was unable to catch up with the suspect and lost track of him.
Once he realized he lost the suspect, Officer Volrie set up a perimeter and provided
his location for assistance. Officer Volrie was informed a K-9 unit was nearby, and
he tried to stay away from the area as much as possible so that the dog could pick up
the scent from the last location where the officer saw the suspect. Officer Volrie had
no doubt that the suspect was fleeing from him and that the suspect knew he was a
peace officer.
Two or three minutes later other officers arrived on the scene, including
Officer Little and his K-9. According to Officer Volrie, the K-9 tracked from the
abandoned vehicle to the house where the vehicle had pulled into the driveway and
where it stopped the second time, and the dog alerted to that residence. The officers
were given permission to enter the residence by a female occupant, but their entry
was delayed because they were given at least three different stories by the female
occupant. The officers were looking for an adult black male; and an adult black male,
later identified as Watkins, was found in a bathtub inside the residence. Officer
Volrie testified that it could not have been more than fifteen minutes between the
time he saw someone “bail from the vehicle” and when they located Watkins inside
the residence. When he initially found Watkins inside the residence in the bathtub,
Officer Volrie could not tell if the black male was the suspect because the bathroom
3 was darker, and it was not until Volrie “got him towards the light[]” in a well-lit area
outside that Volrie “made an ID of the subject” and was sure and he knew “that’s
my guy.”
Officer Volrie testified that after he arrested the suspect, he inventoried the
abandoned vehicle according to protocol prior to it being towed, and he found
paperwork with the last name “Watkins” on it and a cell phone with a photo on it
“that was a 100 percent match of the black male that [Officer Volrie] had in the
vehicle.” There was a ball cap in the bedroom that was down the hallway from the
bathroom, and Officer Volrie believed that was the cap he had seen the suspect
wearing. Officer Volrie testified that he was “100 percent[]” positive that Watkins
was the individual driving the tan vehicle that fled when Officer Volrie attempted
the traffic stop.
Officer Adam Little, a K-9 Unit handler with the Beaumont Police
Department, testified that on that night he responded to an evading arrest call and
arrived at a residence in Beaumont with his K-9. Officer Volrie had been at the scene
a “[m]inute, maybe two[]” before Officer Little arrived. Officer Volrie showed
Officer Little a vehicle from which a missing suspect had fled, Officer Volrie told
Officer Little that he had not gone past the vehicle, and Officer Little had the K-9
track and search for the suspect from a starting point that no officer had disrupted.
According to Officer Little, the K-9 is trained to track the smell “of the freshest
4 ground disruption and work off of that[,]” and that “[a]s long as the officer can tell
me, I stopped here, I think he went that way . . . we are very successful with the dog
picking up the track[.]” Officer Little testified that the officers are trained in how the
dog is trained and that, as in this case, the officers know how to secure the perimeter
to make a successful apprehension. The K-9 tracked the smell between two houses
nearby, investigated under a porch of one of the residences, tracked a smell to the
front porch of that residence, threw his head up, took a deep breath, and had his tail
up, which through Officer Little’s training with the K-9 told Officer Little that the
K-9 smelled a strong odor from the porch.
Officer Little knocked on the front door of the residence and obtained verbal
consent to search the residence from the female that answered the door. Three
children came out of the house which Officer Little agreed “fit with what [the
officers] were being told” when they obtained consent from the female. According
to Officer Little, he helped secure the perimeter, a search was conducted, and
Watkins was brought out of the residence in handcuffs and detained in the back of
the patrol car. Officer Little helped Officer Volrie search the vehicle abandoned by
the suspect as a search incident to arrest, and they found a cell phone that displayed
an image of Watkins’s face on the screen when it was picked up.
Officer Jessie Lisenby with the Beaumont Police Department testified that he
was on patrol training another officer and was called to the scene. When he arrived,
5 there were several officers standing around a house. The officers spoke with a female
that came out of the house, and he saw children come out of the house. After consent
was obtained, he went inside the residence with other officers “to find the male that
[Officer Lisenby] was told was in there.” Only one person, Watkins, was found in
the residence, and he was in a bathtub. According to Lisenby, Watkins would not
provide his name when asked, he “was argumentative[,]” and the officers gave him
several commands to step out of the bathtub, which he refused to do. The body cam
recording of Officer Lisenby’s interaction with Watkins inside the residence was
admitted into evidence and published to the jury. Watkins was detained after being
uncooperative and so the officers could continue to investigate, and Watkins was
later arrested for evading in a motor vehicle. According to Officer Lisenby, while
Watkins was still in the bathroom, Officer Lisenby asked Officer Volrie “if this was
the guy that he had chased[,]” and Officer Volrie responded that he was not sure and
that all he saw was a cap. Officer Lisenby testified that he did not remember seeing
a cap in the video recording played at trial and during the search of the residence he
did not recall seeing a cap, but he explained that when he was inside the house he
was searching for a person and not property.
Denial of Motion for Instructed Verdict
In issues one and four, Watkins argues the trial court erred in denying
Watkins’s motion for instructed verdict because there was legally insufficient
6 evidence to support the police identification of Watkins as the offender and that the
attempted arrest or detention of Watkins was lawful under the circumstances.
According to his first issue, “at no point in Appellant’s trial did the State ever prove
that Appellant’s arrest (or detention []) was lawful, particularly since the sole
eyewitness, Officer Volrie, could not positively and completely identify Appellant
as the missing offender.” As for the element that the attempted arrest is lawful,
Watkins argues in his fourth issue that the State did not prove Appellant’s arrest was
lawful because there was not an arrest warrant for Watkins prior to him being
detained and placed in a squad car, Officer Volrie could not positively identify
Watkins as the offender, and the jury’s instruction to not consider “the fact that the
defendant has been arrested” in the written instructions negated any finding of lawful
arrest.
A challenge to the trial court’s denial of a motion for instructed verdict
operates as a challenge to the sufficiency of the evidence. Cook v. State, 858 S.W.2d
467, 470 (Tex. Crim. App. 1993); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.
App. 1990). In reviewing the legal sufficiency of the evidence to determine whether
the State proved the elements of the offense beyond a reasonable doubt, we apply
the Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that
standard, a reviewing court must consider all the evidence in the light most favorable
7 to the verdict and determine whether a rational justification exists for the jury’s
finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson, 443 U.S. at
319.
“A jury may accept one version of the facts and reject another, and it may
reject any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex.
Crim. App. 2018). As the trier of fact, the jury is the sole judge of the weight and
credibility of the witnesses’ testimony, and on appeal we must give deference to the
jury’s determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains
conflicting inferences, we must presume the jury resolved such facts in favor of the
verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 326).
On appeal, we only ensure the jury reached a rational verdict, and we may not
substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562
(Tex. Crim. App. 2000). In our review, we consider both direct and circumstantial
evidence and all reasonable inferences that may be drawn from the evidence.
Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009).
A person commits the offense of evading arrest or detention if he intentionally
flees from a person he knows is a peace officer attempting to lawfully arrest or detain
him. Tex. Penal Code Ann. § 38.04(a). “[T]he State may prove the defendant’s
identity and criminal culpability by either direct or circumstantial evidence, coupled
8 with all reasonable inferences from that evidence.” Gardner, 306 S.W.3d at 285; see
also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
In addition to the testimony regarding the K-9 alerting to the house where
Watkins was found, which the jury could have considered even though Watkins
argues the evidence creates “a substantial likelihood of misidentification of
Appellant[,]” 1 there is other direct and circumstantial evidence of Watkins’s identity
as the person that committed the offense. Officer Volrie testified at trial that he was
“100 percent[]” positive that Watkins was the individual driving the vehicle that
night. Also, there is circumstantial evidence that Watkins was the person that
committed the offense. Officer Volrie testified that after he arrested the suspect, he
inventoried the vehicle according to protocol prior to it being towed and he found
paperwork with the last name “Watkins” on it and a cell phone with a photo on it
“that was a 100 percent match” to Watkins. Officer Little also testified that the cell
phone recovered from the car had Watkins’s photo on the screen. Officer Lisenby
testified that when they found Watkins inside the house, Watkins was argumentative,
1 Watkins argues on appeal that Officer Volrie’s “evidence on Appellant’s identity was ostensibly inadmissible under at least 4 of the factors listed in Neil v. Biggers[,]” and he argues that Biggers held that where, “as here, evidence derived from overly suggestive procedures is used, it is the likelihood of misidentification which violates Defendant’s Fourteenth Amendment Due Process rights[] and necessitates reversal.” In the trial court, Watkins did not object to the admission of Officer Volrie’s testimony on this basis or to the procedures used in identifying Watkins. See Tex. R. App. P. 33.1. 9 uncooperative, and would not provide his name. Officer Volrie testified that there
was a ball cap in the bedroom that was down the hallway from the bathroom, and he
believed that was the cap he had seen Watkins wearing. Accordingly, we conclude
that the State established Watkins identity from the direct and circumstantial
evidence, coupled with all reasonable inferences from that evidence. Gardner, 306
S.W.3d at 285. We reject Watkin’s argument about “overly suggestive procedures”
because based on the record before us, we conclude the officer identified Watkins
as the suspect based upon the direct and circumstantial evidence, and reasonable
inferences therefrom.
Watkins complains about the written jury instruction that the jury “not
consider the fact that the defendant has been arrested.” According to Watkins,
because the jury was “instructed . . . not to consider the arrest during deliberations,
a necessary element of evading arrest could not be found by the jury.” We disagree.
The instruction refers to Watkins’s arrest for the offense of evading arrest and not to
the statutory element that the attempted arrest or detention that Watkins was fleeing
from was lawful. See Tex. Penal Code Ann. § 38.04(a). The written instruction did
not negate a necessary element of evading arrest. The jury heard Officer Volrie
testify that he observed the tan vehicle fail to stop at a stop sign and that he attempted
to stop the vehicle for the traffic violation. See Garcia v. State, 827 S.W.2d 937, 944
10 (Tex. Crim. App. 1992) (traffic violations committed in an officer’s presence
provide probable cause to stop a vehicle and detain the driver).
Giving proper deference to the role of the jury to evaluate the credibility and
the weight of the evidence, we conclude the evidence was sufficient for a rational
trier of fact to have found the essential elements of the offense beyond a reasonable
doubt. See Brooks, 323 S.W.3d at 894-95. The jury could have reasonably concluded
that Watkins evaded arrest or detention by intentionally fleeing from a person he
knew was a peace officer who was attempting to lawfully arrest or detain him. See
Tex. Penal Code Ann. § 38.04(a). We overrule issues one and four.
Constitutional Challenges
Watkins raises constitutional challenges in issues two, three, seven, fourteen,
fifteen, and sixteen. In issue two, Watkins argues the trial court erred by denying his
motion for instructed verdict because the identification made by Officer Volrie “was
impermissibly suggestive and conducive to irreparable mistaken identification,
thereby denying Appellant Fourteenth Amendment due process and necessitating
reversal[.]” In issue three, Watkins argues that the trial court abused its discretion by
allowing Officer Volrie “to retrospectively identify Appellant at trial when he could
not identify him at the scene, thereby denying Appellant due process and
necessitating reversal[.]” In issue seven, Watkins argues the trial court violated
Watkins’s sixth and fourteenth amendment rights to a fair trial by instructing the jury
11 that Officer Volrie was a “peace officer[.]” In issues fourteen through sixteen,
Watkins argues that he was deprived of adequate notice under the United States and
Texas Constitutions.
Preservation of error is a systemic requirement, which appellate courts must
consider in deciding whether an issue is preserved for appeal. Darcy v. State, 488
S.W.3d 325, 327 (Tex. Crim. App. 2016). To secure a defendant’s right to appellate
review, the Texas Rules of Appellate Procedure require that the record show that the
party complaining about an alleged error state “the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context[.]” Tex. R. App. P. 33.1(a)(1)(A). Additionally, the party complaining
about error must establish that the trial court ruled on the party’s request, objection,
or motion, either expressly or implicitly, or that the complaining party objected to
the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2). When the defendant’s
complaint concerns an alleged violation of the defendant’s constitutional rights, the
defendant must give the trial court “the chance to rule on the specific constitutional
objection because it can have such heavy implications on appeal.” Clark v. State,
365 S.W.3d 333, 340 (Tex. Crim. App. 2012). Watkins failed to raise these
constitutional claims while he was in the trial court, and therefore he failed to
12 preserve his right to assert them in his appeal. See Tex. R. App. P. 33.1(a). Issues
two, three, seven, fourteen, fifteen, and sixteen are overruled.
Jury Charge
In issues five, six, eight, and nine, Watkins alleges jury charge error. In issue
five, Watkins argues the trial court reversibly erred by instructing the jury not to
consider the fact that the defendant has been arrested, thereby precluding essential
jury deliberation on this element of the offense. In issue six, he asserts that the trial
court reversibly erred by commenting on the weight of the evidence as to an element
of the offense by instructing the jury that Volrie was a “peace officer” where his
status as a peace officer is an element of the offense. In issue eight, Watkins contends
that the trial court erred by failing to provide the jury with any statutory definition
of “peace officer.” In Watkins’s ninth issue, he argues that, based on his grounds for
issues four through eight, the trial court caused cumulative errors in the jury charge
and resulted in egregious harm.
When reviewing an alleged charge error, we determine whether error existed
in the charge and, if so, whether sufficient harm resulted from the error to compel
reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error
occurred, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.
App. 2012). When an appellant does not preserve a jury charge error by making a
timely objection, an unobjected-to charge requires reversal only if it resulted in
13 egregious harm, that is, the “error is so egregious and created such harm that [the
accused] ‘has not had a fair and impartial trial[.]’” Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1995) (op. on reh’g). To determine the degree of harm, a
reviewing court should consider “the entire jury charge, the state of the evidence,
. . . the argument of counsel[,] and any other relevant information revealed by the
record of the trial as a whole.” Id.; see also Allen v. State, 253 S.W.3d 260, 264 (Tex.
Crim. App. 2008).
We have already overruled Watkins’s argument in issue five in our discussion
of issue four. In issue six, Watkins complains of the following instruction by the trial
court:
The state accuses the defendant of having committed the offense of evading arrest in a motor vehicle. Specifically, the accusation is that the defendant did then and there intentionally flee from Isiah Volrie, whom the defendant knew was a peace officer attempting to lawfully detain the defendant, and the defendant used a vehicle while he was in flight.
We disagree with Watkins’s argument that the trial court was commenting on the
weight of the evidence by stating that Volrie was a peace officer. Rather, we
conclude that the instruction was merely restating the accusation against Watkins by
the State because it tracks the language of the indictment, and it was not a comment
on the weight of the evidence. Accordingly, we overrule Watkins’s sixth issue.
In issue eight, Watkins argues that the trial court’s failure to provide a
statutory definition of “peace officer” requires reversal. Watkins did not object to
14 the jury charge. Office Volrie testified that he was a patrol officer with the Beaumont
Police Department, in his marked police vehicle, and wearing his police-issued
uniform on the date of the offense. Whether Officer Volrie was a “peace officer”
was not contested at trial. Nothing in the record indicates that the lack of a definition
would have confused the jury or caused the jury to misapply the law. See Plata v.
State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (“[The] failure to give an
abstract instruction is reversible only when such an instruction is necessary to a
correct or complete understanding of concepts or terms in the application part of the
charge.”). Even assuming without deciding that the failure to provide a statutory
definition constituted error, Watkins has not shown that such error, if any, is so
egregious and created such harm that he was denied a fair and impartial trial. See
Almanza, 686 S.W.2d at 171.
In his ninth issue, Watkins contends the alleged errors constituted cumulative
error, denying him a fair and impartial trial. Under the cumulative error doctrine, the
combined effect of multiple errors may, in the aggregate, constitute reversible error,
even though individual error, analyzed separately, was harmless. Gamboa v. State,
296 S.W.3d 574, 585 (Tex. Crim. App. 2009); Flores v. State, 513 S.W.3d 146, 174
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). As stated above, we found no
error by the trial court as alleged in issues five and six, found no egregious harm in
15 the alleged error in issue eight, and found Watkins failed to preserve error as to issue
seven. See Gamboa, 296 S.W.3d at 585-86. Accordingly, the cumulative error
doctrine does not apply, and we overrule issue nine.
Denial of a Hearing on Motion for New Trial
In his tenth issue, Watkins argues the trial court abused its discretion by
denying a hearing on Watkins’s motion for a new trial where the affidavit of Kenya
Keeling, whom Watkins asserts is the renter of the home where he was found,
showed Watkins’s “actual innocence by showing where he was (with her) at all
pertinent times, and she had been unavailable at trial, but was now present in the
courtroom to testify[.]” We note that the appellate record demonstrates that the trial
court held a hearing on Watkins’s motion for new trial and denied the motion. As
noted by the trial court at the hearing on the motion for new trial, Watkins’s motion
for new trial was based on the arguments that Watkins was sentenced under the
wrong law because there were two versions of the statute and that the evidence was
factually and legally insufficient, not that there was a new witness. The trial court
also pointed out that Keeling had been identified at trial by the officers and was not
a new witness.
In his Reply Brief, Watkins argues that “[f]ollowing denial of Appellant’s
Motion for Continuance for the New Trial hearing, the timely submission of Ms.
Keeling’s Affidavit in support of the Motion for New Trial, definitively requires an
16 evidentiary hearing in which Ms. Keeling can freely testify on what happened on the
date of Appellant’s detention, and where he was prior to the police appearing.”
An appellate court reviews a trial court’s denial of a motion for new trial for
an abuse of discretion, reversing only if the trial court’s denial was clearly erroneous
and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled
on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). A trial
court abuses its discretion if no reasonable view of the record could support the trial
court’s ruling. Id. This deferential review requires the appellate court to view the
evidence in the light most favorable to the trial court’s ruling. Id. The appellate court
must not substitute its own judgment for that of the trial court and must uphold the
trial court’s ruling if it is within the zone of reasonable disagreement. Id. Further,
“[m]otions for new trials on grounds of newly discovered evidence are not favored
by the courts and are viewed with great caution.” Drew v. State, 743 S.W.2d 207,
225 (Tex. Crim. App. 1987).
To be entitled to a new trial for newly discovered evidence, the defendant
must show that the new evidence was recently discovered, and the evidence must be
material. Tex. Code Crim. Proc. Ann. art. 40.001. The test for materiality is a four-
part test: (1) the newly discovered evidence was unknown or unavailable to the
defendant at the time of trial; (2) the defendant’s failure to discover or obtain the
new evidence was not due to the defendant’s lack of diligence; (3) the new evidence
17 is admissible and not merely cumulative, corroborative, collateral or impeaching;
and (4) the new evidence is probably true and will probably bring about a different
result in a new trial. Carsner v. State, 444 S.W.3d 1, 2-3 (Tex. Crim. App. 2014). A
motion for new trial cannot be granted unless the defendant shows entitlement to one
under the law. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).
Because Watkins failed to show that Keeling was a new witness that was
unavailable for trial, Watkins was not entitled to another hearing, and the trial court
did not abuse its discretion in denying the motion for new trial. We overrule issue
ten.
Section 38.04 of the Texas Penal Code
In issue eleven, Watkins argues that the trial court erred as a matter of law by
sentencing Watkins to three years in TDCJ-ID because the sentencing level for
evading arrest with a motor vehicle under section 38.04(b) is a state jail felony and
not a third-degree felony. In issue twelve, Watkins argues that there was legally
insufficient evidence to convict him of the third-degree felony, that he had no prior
conviction for evading arrest, and one of the published versions of section 38.04 in
effect at the time of his arrest required the prior conviction. In issue thirteen, Watkins
asserts that, because there are two officially published and contradictory and
ambiguous versions of section 38.04(b), under the rule of lenity the offense level for
a violation of the statute must be a state jail felony and not a third-degree felony.
18 We previously addressed section 38.04 in State v. Sneed, No. 09-14-00232-
CR, 2014 Tex. App. LEXIS 10615, at **7-10 (Tex. App.—Beaumont Sept. 24,
2014, pet. ref’d) (mem. op., not designated for publication). Therein, we noted that
two versions of section 38.04(b) were enacted in 2011. 2014 Tex. App. LEXIS
10615, at **7-8. Under the first version, evading arrest or detention is:
(1) a state jail felony if: (A) the actor has been previously convicted under this section; or (B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section; (2) a felony of the third degree if: (A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section; or (B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight . . . .
Texas Penal Code Ann. § 38.04(b). Under the second version, evading arrest or
detention is:
(2) a felony of the third degree if: (A) the actor uses a vehicle while the actor is in flight; (B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or (C) the actor uses a tire deflation device against the officer while the actor is in flight[.]
See id.
In Sneed, we explained that the Fort Worth Court of Appeals had addressed
the differences and concluded that even if the amendments were irreconcilable, 19 Senate Bill 1416—codified in the second version above—was the latest of the bills
to be enacted and would prevail over earlier bills. See Sneed, 2014 Tex. App. LEXIS
10615, at *9 (citing Adetomiwa v. State, 421 S.W.3d 922, 926-27 (Tex. App.—Fort
Worth 2014, no pet.)). We follow our previous ruling and once again agree with the
Fort Worth Court and conclude that “[t]he offense of evading arrest or detention with
a motor vehicle is a third-degree felony if the actor uses a motor vehicle while in
flight, regardless of whether the actor has a previous conviction for evading arrest
or detention.” See id. at **9-10; see also Fulton v. State, 587 S.W.3d 76, 78 (Tex.
App.—San Antonio 2019, no pet.) (adopting Adetomiwa); Warfield v. State, No. 03-
15-00468-CR, 2017 Tex. App. LEXIS 5380, at **31-33 (Tex. App.—Austin June
14, 2017, pet. ref’d) (mem. op., not designated for publication) (adopting Adetomiwa
and cataloging Texas courts of appeals that have reached the same conclusion). We
need not reach the question of whether the rule of lenity applies. See Ochoa v. State,
355 S.W.3d 48, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
Here, the indictment alleged that Watkins intentionally fled, using a vehicle,
from Officer Volrie, knowing Officer Volrie was a peace officer who was attempting
to lawfully arrest or detain Watkins. Watkins was charged with and convicted of the
third-degree felony offense of evading arrest, and his three-year sentence is within
the punishment range for a third-degree felony. See Texas Penal Code Ann. § 12.34
(punishment range for a third-degree felony is imprisonment in the Texas
20 Department of Criminal Justice for any term of not more than ten years or less than
two years and a possible fine not to exceed $10,000). Issues eleven, twelve, and
thirteen are overruled.
Having overruled all of Watkins’s appellate issues, we affirm the trial court’s
judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on May 21, 2020 Opinion Delivered January 27, 2021 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.