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Click here for the full text of this decision FACTS:As a police officer was directing traffic one night, a car approached without its headlights on. The officer stopped the vehicle and asked its driver for identification and proof of insurance. The driver said he had none and started to flee, though the officer told him that fleeing would be a felony offense. The vehicle pulled off anyway, and the officer ran to his car to follow it. The vehicle stopped several feet away, but by the time the officer reached it, the occupants were gone. The officer found a DPS identification card belonging to Michael Powell in the passenger side door. The officer also found a hand gun next to the car, though Powell’s fingerprints were not on the gun. As the officer searched the car, a vehicle phone left in the vehicle rang. The officer answered the call, and the caller asked, “[D]id Little Mike get away, or did the police get him?” Powell was charged with evading arrest. The charge was elevated by a prior evading-arrest conviction. At trial, evidence was admitted indicating that Powell was on parole at the time of the offense. The gun found at the site was also admitted The jury convicted Powell, and he now appeals. HOLDING:Reversed and remanded. The state argues that both the gun and Powell’s parole status were properly admitted into evidence because they both showed motive to evade arrest, that is, it would be a felony for Powell, as a parolee, to be found with a firearm. The court agrees that the evidence is relevant but disagrees that its probative value outweighed its prejudicial effect. The state offered the evidence to prove Powell’s motive. Powell’s motive was then being used as probative evidence to establish his identity. As evidence of Powell’s possession of the gun was weak (it was lying on the ground, and Powell’s fingerprints were not on it), neither it nor Powell’s parole status compelling serve to establish his identity as the person who fled from the officer. Furthermore, the state did not have a compelling need to prove motive via Powell’s parole status. The error was not harmless, the court continues. Powell presented evidence that the car had been rented by his girlfriend, and her girlfriend had asked another male not Powell to drive the car back from an out-of-town visit. She offered an explanation for how Powell’s ID card was found in the car. There was some question over whether the other male was a student at Waco High School, as Powell’s girlfriend’s sister testified. With this conflicting evidence, the evidence of Powell’s gun and parole status were the two elements that the state relied on in establishing Powell’s identity, which likely affected the verdict. The court goes on to consider other issues raised by Powell. The court rejects Powell’s contention that the statement the officer overheard on the cell phone was not hearsay. The court agrees with the state that the statement was not offered to prove the truth of the matter asserted, but rather to show the information a detective later relied on in seeking a warrant for Powell’s arrest. Finally, the court rejects Powell’s contention that the trial court should have charged the jury on evading arrest as a state jail felony instead of a third-degree felony on the theory that his prior conviction occurred before the legislature amended the evading arrest statute to create the third-degree offense. OPINION:Reyna, J.; Gray, Vance and Reyna, JJ. DISSENT:Gray, J. The dissent disagrees both with the finding of error and the finding that the error was harmful. The dissent feels the majority conducted an inappropriate balancing test on its own instead of relying on the trial court’s own balancing test.

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