Opinion
No. 07-16-00351-CR
01-24-2018
SAMUEL DURAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 2 Lubbock County, Texas
Trial Court No. 2016-486 ,311, Honorable Drue Farmer, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Samuel Duran, appeals the trial court's affirmative finding that the assault offense for which he was convicted involved family violence. We will affirm the judgment of the trial court.
Factual and Procedural Background
On October 2, 2015, Stephanie Mata was heard screaming for help at the Lakeway Apartments in Lubbock, Texas, while running toward her car and holding her two-week-old baby. Larry Moye, an employee of the apartment, saw appellant strike Mata with his fist on the top of her head four or five times. While punching her, appellant pulled the baby away from Mata. Moye notified the property manager, who called 911. When police arrived, they briefly discussed the incident with Mata and then went to Mata's apartment and knocked on the door. Appellant answered the door holding the baby. Appellant was placed under arrest.
Appellant was subsequently charged by information with the offense of assault. A jury trial was held in August of 2016. After hearing the evidence, the jury returned a verdict finding appellant guilty of the assault. At the conclusion of a subsequent punishment hearing, the trial court made an affirmative finding of family violence and sentenced appellant to 365 days of incarceration in the Lubbock County Detention Center.
By his appeal, appellant presents one issue. He contends that the trial court erred in failing to submit the issue of whether the assault involved family violence to the jury.
Law and Analysis
Article 42.013 of the Texas Code of Criminal Procedure provides that, "[i]n the trial of an offense under Title 5 [of the] Penal Code,[] if the court determines that the offense involved family violence, as defined by Section 71.004 [of the] Family Code,[] the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case." TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006).
Title 5 of the Texas Penal Code includes the offense of assault as alleged in the information in this case. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2017).
Section 71.004 defines "family violence" as "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself." TEX. FAM. CODE ANN. § 71.004(1) (West Supp. 2017). Family violence includes "dating violence." Id. § 71.004(3). The evidence clearly establishes that appellant and Mata had been in a dating relationship and have a child together. See id. § 71.0021(b) (West Supp. 2017).
Appellant contends that the trial court erred in failing to submit the issue of whether family violence occurred to the jury. However, before we can address this issue, we must first address the issue of error preservation. Henzler v. State, No. 07-12-00523-CR, 2014 Tex. App. LEXIS 11430, at *7 (Tex. App.—Amarillo Oct. 15, 2014, no pet.) (mem. op., not designated for publication). In general, a party must make a timely, specific request, objection, or motion in the trial court and obtain an adverse ruling to preserve a complaint for appellate review. TEX. R. APP. P. 33.1; Henzler, 2014 Tex. App. LEXIS 11430, at *7. A review of the record reflects that appellant never raised any objection before the trial court regarding its failure to submit the issue of family violence to the jury. In fact, appellant raised no issue regarding the trial court's entry of an affirmative finding of family violence at all. As such, appellant's issue has not been preserved for appellate review. Henzler, 2014 Tex. App. LEXIS 11430, at *7.
However, even if appellant had preserved his claim of error, we would still overrule his issue as not being in error. The Texas Court of Criminal Appeals has held that it is not error for a trial court not to submit a question of family violence to a jury under article 42.013. Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006); see Williams v. State, No. 05-10-00696-CR, 2011 Tex. App. LEXIS 6214, at *8-12 (Tex. App.—Dallas Aug. 10, 2011, pet. ref'd) (not designated for publication) (specifically rejecting the argument that a finding of family violence increases defendant's punishment because it results in his being deprived of his constitutional right to carry a firearm). In fact, it would be error for a trial court to submit the issue of family violence to the jury since the Legislature expressly requires that the trial court enter an affirmative finding of family violence in its judgment if it finds, during the guilt phase of the trial, that the offense involved family violence. Id.; Henzler, 2014 Tex. App. LEXIS 11430, at *7-8; Suiters v. State, No. 07-13-00352-CR, 2014 Tex. App. LEXIS 10171, at *2 (Tex. App.—Amarillo Sept. 10, 2014, pet. ref'd) (per curiam) (mem. op., not designated for publication); Williams, 2011 Tex. App. LEXIS 6214, at *8-9. The trial court did not err by failing to submit the issue of family violence to the jury.
Conclusion
As appellant failed to preserve his sole issue for appellate review, we overrule that issue and affirm the judgment of the trial court.
Judy C. Parker
Justice Quinn, C.J., concurring in the result. Do not publish.
Chief Justice Quinn joins with the majority to the extent they hold that the issue was not preserved.