38.04 treats evading on foot as a state jail felony if the def has been previously convicted under this section. the comments state that if any element of the offense was committed before that date then that provision would not apply. two trains of thought: 1. the first evading had to be committed after sep. 1, 2009 to make the second a felony 2. the first evading is just jurisdictional to make the second a felony and it doesnt matter when it was comitted. any cases or thoughts on this?

Welcome to the profession. I hope you like it as much as I do despite the conflicts of the political zealots in your area. As I read 38.04 the elements referred to in the comments apply to 38.04(a). I can not quote any case authority at this point but I am confident that if the legislature intended that a prior conviction could only be used if the conviction occurred after a certain date they would have included it in the main body of the statute such as they did when the 10 year rule was in effect for DWI enhancement. Note Hobbs v State 175 SW3d 777 that is discussed in the TDCAA Criminal Laws of Texas which holds that felony evading is a continuous offense that extends from the beginning of the chase until the apprehension. In some cases that could take days, weeks, months, or years.

I dealt with this issue recently. The conviction does not have to occur prior to the effective date of the statute. I should have some cases, I just need to find them and I will forward to you.

We've had to deal with several motions to quash on this issue. We have cited 980 S.W.2d 635 which isn't exactly on point but has alot of language that is very analogous to this issue.

The CCA has specifically characterized a prior conviction under Section 38.04 as an element of the offense that must be proven during guilt-innocence. See Calton v. State, 176 S.W.3d 231, 234-36 (Tex. Crim. App. 2005).

The fact that the conviction exists at the time of the current evading offense is an element but the date of that conviction is not an element so you are not bound by the laws in effect at the time of the prior evading.

Take a look at Ceballos 246 S.W.3d 369, which seems to pretty well settle the issue.

thanks to everyone who replied to this thread. i was able to use the info for my own case