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Click here for the full text of this decision FACTS:On June 9, 2002, Derrick Forney shot a Houston Police Department (HPD) officer. HPD searched for Forney, but to no avail. The night of June 10, 2004, Quanell X Abdul Farrakhan, a community activist who had assisted HPD with suspects’ peaceful surrender at least 15 times in the past, contacted HPD to advise that Forney had asked Farrakhan to assist in Forney’s surrender. To accomplish Forney’s surrender, Farrakhan asked for and was granted permission to deliver Forney to HPD’s Travis Street headquarters in downtown Houston that evening. The arranged procedure was consistent with how Farrakhan and the HPD chief’s office had handled surrenders facilitated by Farrakhan in the past. Forney later became spooked and would not allow Farrakhan to deliver him to HPD that evening but Farrakhan advised HPD that he would try again the next morning. The next morning, Farrakhan contacted HPD via a television reporter that HPD should send officers to the intersection of Bissonnet Street and Beltway 8 in Houston. When detectives arrived, they saw Farrakhan’s black Hummer. Farrakhan first drove along routes that were consistent with a downtown destination. However, the officers became concerned when Farrakhan began taking routes that appeared to lead away from the downtown area. Eventually, a detective got on the radio and asked for patrol units to start coming toward our location and also asked the officers who had accompanied him to start coming in our direction to assist in this arrest. Right then, Farrakhan made an abrupt u-turn over a concrete median and headed in the opposite direction, going west toward the route to the Travis headquarters. HPD Officer Keith Roi was driving eastward and an HPD detective signaled him to stop Farrakhan’s vehicle. Officer Roi complied by turning around and following Farrakhan, turning on his lights, and activating his siren several times. Farrakhan continued to drive downtown for some time but eventually stopped. Police arrested Forney without incident. Laer, they arrested Farrakhan for evading arrest or detention. Farrakhan was indicted for the state felony offense of evading detention by use of a motor vehicle. Over Farrakhan’s objection, the trial court also charged the jury on the lesser-included, misdemeanor offense of fleeing or attempting to elude a police officer. The jury implicitly acquitted Farrakhan of the greater offense of evading detention and convicted him of the lesser offense of fleeing or attempting to elude a police officer. Farrakhan appealed. HOLDING:Reversed and remanded with instructions for the trial court to dismiss the indictment. In his third issue, Farrakhan contended that the trial court erred when it charged the jury, at the state’s request and over his objection, on the lesser-included offense of fleeing or attempting to elude a police officer. The court noted a persuasive but not binding 2nd Court of Appeals case that found fleeing or attempting to elude a police officer is a lesser included offense of evading detention by use of a motor vehicle. The only difference between the two criminal statutes, the 2nd Court found in Walker v. State, 95 S.W.3d 516 (Tex. App. – Fort Worth 2002), was that the evading arrest statute requires the offender to have knowledge that the officer was attempting to lawfully arrest or detain him. The 1st Court of Appeals declined to follow Walker in the case. The court held that the state would have been entitled to a lesser charge on fleeing or evading a police officer only if the trial court required the state to prove four matters in proving the charged offense: 1. Roi was uniformed and his badge was prominently displayed; 2. Roi drove a marked vehicle; 3. Roi pursued Farrakhan with that vehicle; and 4. Roi signaled Farrakhan audibly or visually to stop. The court concluded that the trial court did not require the state to prove at least three of these additional facts to prove the charged offense. Therefore, the court held that the uncharged offense’s elements requiring proof of these three facts were neither the functional equivalents of the elements of the charged offense nor were they included within the charged offense’s elements. The court further held that the offense of fleeing or attempting to elude a police officer submitted to the jury did not meet the test for determining a proper lesser-included-offense test under Texas Code of Criminal Procedure �37.09 and its related case law. The court then did a harm analysis. The harm flowing from the charge was obvious and egregious, the court stated, because the jury acquitted Farrakhan of the charged offense and convicted him of an offense with which the jury should not have been charged because that offense was not a lesser-included offense. OPINION:Taft, J.; Taft and Hanks, J.J. CONCURRENCE:Keyes, J., joined all of the opinion except for �IV, subsection D, which analyzed the state’s argument for affirming the trial court’s judgment under Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987).

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