With no explanation, chose the best option from "A", "B", "C" or "D". rather than a “final conviction.” The elements of the offense of felony evading arrest under section 38.04(a), (b)(2) are: (1) the actor intentionally fled from a person he knew was a peace officer attempting to lawfully arrest him; (2) the actor used a vehicle in fleeing from the officer; and (3) the actor had been previously convicted under section 38.04. Id. § 38.04(a), (b)(2)(A). The language in section 38.04(b)(2) that makes the offense of evading arrest a third degree felony is presented as an element of the felony offense itself, rather than as an enhancement provision, such as can be found in section 12.42 of the penal code. See id. § 12.42 (providing penalties for repeat and habitual felony offenders); State v. Atwood, 16 S.W.3d 192, 196 (Tex.App.-Beaumont 2000, pet. refd) (<HOLDING>) (emphasis added). Throneberry argues the

A: holding that no offense alleged where affidavit described offense as felony
B: holding a prior offense of evading arrest is an element of the offense of felony evading arrest
C: holding that resisting arrest is lesser offense of assault on an officer
D: holding that employees convictions for burglary possession of controlled substance public intoxication possession of marijuana unlawful carrying of weapon and evading arrest did not make his sexual assault of child foreseeable
B.