Copeland v. Texas, 3-18-2020

A grand jury indicted Appellant, Draden Heath Copeland, on four counts of theft and one count of evading arrest or detention. All five counts included an enhancement paragraph alleging prior felony convictions. Copeland pleaded guilty to all five offenses and “true” to the allegations of prior convictions. At the sentencing hearing, the trial court found all the enhancement allegations true and assessed punishment at twenty years of confinement on the four counts of theft and forty years of confinement on the count of evading arrest or detention, with the sentences to run concurrently. Copeland timely filed an appeal.

Copeland’s first issue on appeal argues that his convictions on four counts of theft constitute multiple punishments for the same offense and violate the double jeopardy clause of the United States Constitution and the Texas Constitution. See U.S. Const. amend. V; Tex. Const. art. I, § 14. Copeland did not assert a claim of double jeopardy in the trial court. In Gonzalez v. State, the Texas Court of Criminal Appeals held that double jeopardy claims could be forfeited by procedural default—simply by failing to make an objection at trial. 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). However, there is an exception which allows a double jeopardy claim to be raised for the first time on appeal when two conditions are met: (1) the undisputed facts show a double jeopardy violation is apparent on the face of the record; and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. Id. Here, we cannot say that a double jeopardy claim is apparent from the face of the record. Therefore, the exception does not apply, and Copeland forfeited by procedural default his double jeopardy claim.

Copeland’s second issue argues that evading arrest in a vehicle should have been classified as a state jail felony and that by sentencing him to a third-degree felony, the trial court imposed a sentence in Count 5 that was not authorized by law. We conclude that Copeland’s sentence for evading arrest or detention as a third-degree felony was proper, and we overrule Copeland’s second issue. See Sneed, 2014 WL 4755502, at *4; Adetomiwa, 421 S.W.3d at 926-27.

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