How do other offices prosecute 3d degree felony evading arrest?

One of the things that can bump it from a state jail felony to third degree is if the def used a vehicle AND he was convicted before of evading. PC sec. 38.04(b)(2)(A).

Is there anyone who waits until punishment to prove the prior arrest? I mean, it's not a jurisdictional problem, but it does put a felony conviction in danger of being reduced (to SJF) on account of insufficient evidence. I know there's at least one case on point (from Beaumont) holding that the prior conviction must be proved at G/I (16 S.W.3d 192 -- analogizing to felony DWI).

And no, I'm not thinking of doing this. I'm just trying to justify it after the fact. Or am I missing an obvious answer?

Unlike DWI 3rd or Theft 3rd, Evading Arrest with a vehicle is a felony without being enhanced. For that reason, it should be handled similar to any other felony with an enhancement paragraph by proving it up at the punishment stage.

Okay, but how would that jibe with a prosecution under the alternative 3rd degree situation (serious bodily injury)? Surely you wouldn't wait until punishment to prove SBI, right? If so, isn't SBI an element of 3rd degree evading -- and isn't the prior conviction for evading also an element (in the b2A situation)?

I know that's a lot of question marks, but I don't see why it's obvious that SBI would be an element but the prior conviction is not.

It would seem to me that under you second scenario (evading with SBI) that logic dictates that the SBI would need to be proven at the G/I phase. The failure to prove the SBI at the G/I phase leaves you with misdemeanor evading.

Conversely, when proving felony evading with a vehicle with a prior evading--the proof that the defendant evaded with a vehicle is enough, in and of itself, to prove the felony charge. At punishment, you prove the prior charge to "enhance" the punishment from the State Jail range to 3rd Degree Felony range.

This meshes with the Felony DWI scenario in that you must prove at least two prior DWIs to get the conviction of Felony DWI. Other felonies, including other Felony DWIs, may be proven at punishment to enhance the range.

In looking at the case you talked about (State v. Atwood, 16 SW3d 192)--that was under the prior version of the statute where evading with a vehicle was a Class A misdemeanor. The only thing that made it a felony was a prior convition. In that case, it is analagous to a DWI in that you need to prove the prior to grant jurisdiction to the District Court.

[This message was edited by Robert S. DuBoise on 05-08-03 at .]

[This message was edited by Robert S. DuBoise on 05-08-03 at .]

As you point out, so long as there is an allegation that a vehicle was used, the prior conviction is not necessary to show that the offense is a felony within the jurisdiction of the district court. (Aside: will the whole theory of "jurisdictional elements" come apart as county courts gain jurisdiction to try felonies?) Hence, the holding in Tamez becomes relevant. See also Theus where it was said: When a defendant's prior offense and the charged offense are similar, a danger arises that the jury will convict the defendant based on a perception of a pattern of past conduct rather than based upon the facts of the charged offense. Therefore, when this circumstance exists, the law disfavors admitting evidence of the prior offense.

If a proper objection was made under Rule 403, certainly the safer route would appear to have been to exclude the evidence until after a finding of guilt is made.

Is there some sort of proposal for county courts to hear felonies? Will that pass constitutional muster? This is the first I've heard of it.

Okay, just so I understand everyone's position,

Y'all are saying that only if a prior conviction is required for jurisdictional purposes, it is an "element" of the offense. However, if it (a prior) is not required to get into court, it isn't an element and can be proved at punishment. But that only holds true for priors -- another item (SBI, for instance) that raises the punishment level is an element that should be proved at guilt stage. Does that sum it up?

Oh, and I'm not worried about 403-type issues. The guy actually made a directed verdict motion that the evidence was insufficient because we didn't prove the prior at the guilt stage. So he wanted it.