In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00286-CR
________________________
SAMMY VIDALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2012-436,579; Honorable John J. McClendon III, Presiding
October 28, 2014
ORDER TO REBRIEF ISSUES
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Sammy Vidales, was convicted by a jury of evading arrest or detention
with a vehicle,1 enhanced by two prior felony convictions, and sentenced to sixty-two
years confinement. By three issues, Appellant contends (1) his initial detention was not
lawful because there were no specific and articulable facts supporting reasonable
suspicion to detain him, (2) his trial counsel was ineffective and (3) error in the jury
1
TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Effective September 1, 2011, the offense
of evading arrest with a vehicle is a third degree felony. See Act of May 27, 2011, 82nd Leg., R.S., ch.
920, § 3, 2011 Tex. Gen. Laws 2321, 2322.
charge failed to instruct the jury on unanimity of the verdict regarding what he perceived
to be two separate evading arrest offenses allegedly committed on the same date. The
State responded to Appellant’s briefing and the case was submitted to this Court on the
briefs.
In our review of the record in this case, we have discovered a previously
unassigned, potentially meritorious issue concerning the legality of the sentence
imposed. Specifically, the Charge of the Court on Punishment describes two prior
felony convictions, each of which became “final prior to the commission of the offense of
which you have just found [Appellant] guilty,” i.e., the offense of evading arrest;
however, it does not submit to the jury the question as to whether “the second previous
felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final.” See TEX. PENAL CODE ANN. § 12.42(d) (West Supp.
2014). Accordingly, a question exists as to the appropriate range of punishment: (1)
two to twenty years pursuant to § 12.42(a) or (2) twenty-five to ninety-nine years
pursuant to § 12.42(d).
In the interest of justice, and out of an abundance of fairness to all parties, this
Court hereby assigns this issue as potential error and directs both parties to file
additional briefing. Appellant is granted thirty days from the date of this order to file a
supplemental brief and the State is granted thirty days from the date Appellant’s
supplemental brief is filed to file a reply brief.
Per Curiam
Do not publish.
2