Carlton v. State
In Carlton v. State, 176 S.W.3d 231, 236 (Tex. Crim. App. 2005) the court addressed whether the allegation of a prior conviction under the evading arrest statute was an element of the offense.
The court explained that when determining "whether any given fact constitutes an element of the offense," the court must look to the plain language of the statute involved and apply that plain language if it is not ambiguous. Id. at 233.
If the language is ambiguous or would lead to an absurd result, we resort to extra-textual sources to determine the element of the offense. Id.
The court began its analysis with a review of the text of section 38.04 of the Penal Code which provides in relevant part:
38.04 Evading Arrest or Detention
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; ...
TEX. PENAL CODE ANN. 38.04 (Vernon Supp. 2009).
The court determined the statute was not ambiguous. The court held that a conviction for the offense evading arrest as an element of a third-degree felony could not occur without proving the actor has previously been convicted of evading arrest. Id. at 234.
The court concluded from the plain language of the statute that a prior conviction for evading arrest is an element for the offense of third-degree felony evading arrest. Id.