Distinction Between ''Offense Element'' and ''sentencing Factor'' (In a Statute)
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350, 357 (1998), the United States Supreme Court considered the question of whether a provision in a particular statute defined a separate crime or simply authorized an enhanced penalty.
That, in effect, is the preliminary question before us as well.
Is section 38.04(b)(2) a penalty provision or is it a separate crime, the elements of which must be proved at the guilt/innocence phase of trial ?
As noted by the United States Supreme Court in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311, 319 (1999), "much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt."
In making the determination of whether the portion of the statute in question is an element of the offense or a sentencing factor, we look, as did the United States Supreme Court in Almendarez-Torres, to the statute's language, structure, subject matter, context, and history. Almendarez-Torres at 358.
We note first that the title of section 38.04 does not mention the word "penalty," as did the pertinent statute in Almendarez-Torres.
Nor is the subject matter of section 38.04 recidivism, as was the case with the statute in Almendarez-Torrres. Instead, the subject matter of section 38.04 is the actual offense of evading arrest and its aggravating elements. See generally Jones, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (Court interpreted 18 U.S.C. 2119 as setting out separate and aggravated offenses rather than a single offense with various sentencing factors.).