Opinion filed August 2 8 , 2015



### In The 

# Eleventh Court of Appeals

__________ No

. 11

- 1 3

- 00 279

- CR

__________ CHRISTOPHER REED WHITLEY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 259 th District Court

Jones County , Texas Trial Court Cause No

. 010799

M E M O R A N D U M O P I N I O N The jury convicted Christopher Reed Whitley of evading arrest or detention in a motor vehicle. The trial court assessed Appellant’s punishment at confinement for nine years. Appellant raises two issues on appeal. We affirm.
On the date of the offense, as Officer Randy Guerra , a City of Hamlin p olice

o fficer , sat at a stopligh t , he heard the sound of tires squealing and saw a red Mustang2

being “accelerate [d] to the point where it fishtailed onto the turning lane.” The Mustang ended up in the oncoming lane of traffic as it fishtailed. Officer Guerra turned on his emergency lig hts and pursued Appellant’s vehicle. During the pursuit, Officer Guerra “realized [Appellant] wasn’t stopping” and turned on his siren.
Officer Guerra testified that , as he chased the Mustang, he saw Appellant look at him through the side mirror of the Mustang

. Appellant drove erratically and hit his brakes when the patrol vehicle got close to the Mustang. Each time this happened, Officer Guerra saw Appellant smile as he kept driving. After over three miles of pursuit, Appellant voluntarily stopped hi s vehicle , and Officer Guerra arrested him for evading arrest or detention in a motor vehicle. After the jury found Appellant guilty, t he trial court assessed Appellant ’ s punishment and sentenced Appellant accordingly

. See T EX . P ENAL C ODE A NN

. § 38.04 (b)( 2)(A) (West Supp. 2014 ) (providing that , when one evades arrest , it is
classified as “a felony of the third degree if

. . . the actor uses a vehicle while the actor is in flight”). In Appellant’s first issue, he argues that the sentence imposed by the trial court was unauthorized by law

. He contends that , when the legislature amended
Section 38.04 in 2011, it violated the s ingle

- subject rule under Article III, section 35
of the Texas Constitution. T EX . C ONST . art. III, § 35 (a) (providing “[n]o bill

. . . shall contain more than one subject”). In Appellant’s second issue, he argues that
, because the sentence wa s unauthorized by law, the doctrine of lenity combined with
Section 311.031(b) of the Texas Government Code mandate that A ppellant be punished f

or a s tate j ail f

elony, not a t hird

- d egree f elony. The State argues that Appellant has not preserved these issues for review. Regardless of w hether Appellant preserved these issues for review, the Court of Criminal Appeals and this

court have decided these issues counter to Appellant’s arguments.3

In Jones , the defendant was convicted of evading arrest in a motor vehicle and argued that Section 38.04 violated the single

- subject rule under the Texas
Constitution. Ex parte Jones , 440 S.W.3d 628, 629 (Tex . Crim. App. 2014). The

c ourt disagreed and held that the bill had a single subject because “the penalties for the offenses described in the bill pertain to criminal offenses related to motor vehicles.” Id. at 633. Consequently, even if Appellant had pr eserved this issue for appeal, the trial court did not err. We ove rrule Appellant’s first issue. Recently, this court decided two cases that dispose of Appellant’s second
issue

. See Reyes v. State , No. 11

- 13

- 00206

- CR, 2015 WL 3799301, at *3 (Tex. App.

–– E astland June 18, 2015, pet. filed ); Wise v. State , No. 11

- 13

- 00005

- CR, 2014 WL 2810097, at *4

– 5 (Tex. App.

–– Eastland June 19, 2014, pet. ref’d) (mem. op., not designated for publication). Appellant argues that Section 311.031(b) of the
Government Code req uires that the 2011 amendment to Section 38.04 of the Penal
Code that classified the offense as a state jail felony apply here

. See T EX . G OV ’ T C ODE A NN

. § 311.031 (b) (West 2013) ( providing that , “ [ i ] f the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended ”); P ENAL § 38.04.
I n Wise , we reviewed the issues presented by the multiple amendments passed
i n the 2011 l egislative s ession that amended Section 38.04. Wise , 2014 WL 2810097, at *4

– 5. We held that reliance on Section 311.031(b) is misplaced because
recent amendments to Section 38.04 have not reduced the punishmen t for the offense of evading arrest. Id

. We concluded that Wise was properly sentenced under the final amendment passed , which made evading arrest or detention in a motor vehicle
a third

- degree felony. I

d. at *5. Because Appellant was indicted and sent enced
under the same amendment to Section 38.04 of the Penal Code as the defendant in
Wise , the same reasoning applies here

. See id.4

Appellant further argues that the doctrine of lenity requires us to interpret the ambiguous statute in his favor. See Rey es , 2015 WL 3799301, at *4 (discussing the doctrine of lenity and its application to ambiguous statutes). However, in Reyes , we analyzed whether the doctrine of lenity requires defendants to face state jail felony
rather than third

- degree felony charges under Section 38.04. Reyes , 2015 WL 3799301, at * 4

. Because Section 38.04 is not ambiguous, the doctrine of lenity does not apply here

. Id. (citing Wise , 2014 WL 2810097, at *4

– 5 ) . Consequently, the trial court did not err when it sentenced Appellant. We overrule Appellant’s second
issue. We affirm the judgment of the trial court.

JIM R

. WRIGHT
CHIEF JUSTICE

August 2 8 , 2015 Do not publish. See T EX

. R. A PP

. P . 47.2(b).
Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J

.