Opinion filed August 28, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00279-CR

__________

CHRISTOPHER REED WHITLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 259th 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 police 

officer,sat at a stoplight, he heard the sound of tires squealing and saw a red Mustang 
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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 lights 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 his vehicle, and Officer Guerra arrested him 

for evading arrest or detention in a motor vehicle.

After the jury found Appellant guilty, the trial court assessed Appellant’s 

punishment and sentenced Appellant accordingly. See TEX. PENAL CODE ANN. 

§ 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 single-subject rule under Article III, section 35 

of the Texas Constitution. TEX. CONST. 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 was unauthorized by law, the doctrine of lenity combined with

Section 311.031(b) of the Texas Government Code mandate that Appellant be 

punished for a state jail felony, not a third-degree felony. The State argues that 

Appellant has not preserved these issues for review. Regardless of whether 

Appellant preserved these issues for review, the Court of Criminal Appeals and this 

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

court 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 preserved this issue for 

appeal, the trial court did not err. We overrule 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.––Eastland 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 requires that the 2011 amendment to Section 38.04 of the Penal 

Code that classified the offense as a state jail felony apply here. See TEX. GOV’T

CODE ANN. § 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”); PENAL § 38.04.

In Wise, we reviewed the issues presented by the multiple amendments passed

in the 2011 legislative session 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 punishment 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. Id. at *5. Because Appellant was indicted and sentenced 

under the same amendment to Section 38.04 of the Penal Code as the defendant in 

Wise, the same reasoning applies here. See id.
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Appellant further argues that the doctrine of lenity requires us to interpret the 

ambiguous statute in his favor. See Reyes, 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 28, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.