I have a defendant indicted for evading arrest w/ prior conviction. I was reading the statute though, and it states "previously convicted under this section." The defendant's prior conviction was for Aggravated Fleeing out of Florida (obviously not a conviction under "this section") I can't find a single case that addresses the issue. Anyone had this issue come up?

I just realized I used "to" instead of "too"....how annoying!! My apologies!

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Nothing I could find on that one specifically, but people have made similar arguments and been unsuccessful. See Ceballos v. State, 246 SW3d 369 (Austin; court of appeals held that "this section" did not mean the specific subsection of 38.04); Reggie v. State, 2008 WL 2122604 (Tyler; court of appeals held that "this section" did not refer to the current 38.04 but also prior versions of 38.04).

However, I would caution you that the Legislature did use the words "this section," and that a previous conviction is an element-of-offense enhancement, not a punishment enhancement under 12.42. Compare 38.04 with 49.09(b)(1), which specifically mentions "an offense under the laws of another state." As a general matter of code construction, you would need to presume that where the Legislature is capable of making a distinction in one statute (49.09), the failure to make the same distinction in another statute (38.04) is evidence of legislative intent.

None of that means that the Leg didn't intend for foreign convictions for evading arrest to enhance the offense under 38.04, it's just that there's an argument to be made that they didn't so intend.

Thanks LAH...that is how I felt - the fact that the legislature put "this section" literally meant "this section." If it wanted to say something along the lines of an offense involving evading a law enforcement officer, it could have done so. Thanks for those cases, I'll check them out. Not sure how I want to proceed on these indictments....