Opinion
No. 14-04-00739-CR
Opinion Filed February 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 896,326. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
MEMORANDUM OPINION
Appellant was convicted of felony assault on a household member, second offense and sentenced to four years' confinement, probated for four years. The State subsequently filed a motion to revoke community supervision. Appellant entered a plea of true and was sentenced to two years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant claims that the underlying judgment is void because there is no evidence to support it and that the trial court erred in imposing a sentence in excess of the maximum authorized by law because he was convicted only of a misdemeanor, not a felony. We affirm. On November 9, 2001, appellant was arrested for assaulting his ex-wife. Because appellant had a prior conviction for assault on a family member, he was charged with felony assault pursuant to the Texas Penal Code, which provides that a second offense for assault on a family or household member is a felony rather than a misdemeanor. Act of May 26, 1999, 76th Leg., R.S., ch. 1158, § 1, sec. 22.01(b)(2), (e), 1999 Tex. Gen. Laws 4063 (amended 2005) (current version at TEX. PENAL CODE ANN. § 22.01(b)(2) (Vernon Supp. 2005)). As his former spouse, the victim is still considered a member of appellant's family. See Tex. Fam. Code Ann. § 71.003 (Vernon 2002). However, the indictment charged appellant with assault on a member of his household rather than on his family. Appellant entered a plea of guilty, and his judicial confession quoted verbatim the language from the indictment, although "household" was crossed out and "family" was handwritten in its place. This is the only evidence before us regarding appellant's plea and offense because no transcript of the plea hearing appears in the record. In his first issue, appellant argues that the underlying judgment is void because there is no evidence to support it. He contends that because the indictment charges him with assault against a household member, but his judicial confession was for assault on a family member, there is no evidence he committed the crime alleged in the indictment. Generally, an appeal from a probation revocation order is limited to the propriety of the order and cannot include review of the original conviction. Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990); Clark v. State, 997 S.W.2d 365, 369 (Tex.App.-Dallas 1999, no pet.). However, "[i]f the original judgment imposing probation was void, then the trial court would have no authority to revoke probations, since, with no judgment imposing probation (because it is a nullity), there is nothing to revoke." Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App. 2001). A judgment is void in only rare circumstances, such as when the record reflects there is no evidence to support the conviction. Id. The record must leave no question about the existence of the defect. Id. Appellant cannot meet this burden because he has not provided a complete record of the underlying proceedings. As the Nix court explained,
If the record is incomplete, and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect. For example, when a defendant levels a "no evidence" challenge against the conviction, but the record contains no court reporter's transcription of the original plea hearing, then the conviction is not void, even though the record — as far as it goes — tends to support the no evidence claim.Id. at 668-69. Without a record of the plea hearing, appellant cannot meet his burden of showing there is no evidence to support his conviction; therefore, the judgment is not void. We overrule appellant's first issue. In his second issue, appellant argues that the trial court erred in imposing a sentence greater than the statutory maximum. He theorizes that because the judgment did not affirmatively show he was convicted a second time for assault on a family member, he was really convicted of a misdemeanor rather than a felony. The trial court's judgment was contained on a form that included a section for "affirmative findings." All possible affirmative findings, including family violence, were marked "N/A." However, the State can use extrinsic evidence to show that an assault conviction was for assault on a family member. See State v. Eakins, 71 S.W.3d 443, 444-45 (Tex.App.-Austin 2002, no pet.). Appellant's judicial confession constitutes such evidence, and it clearly shows the conviction was for assault on a family member. We overrule appellant's second issue. Having overruled appellant's two issues, we affirm the trial court's judgment.
The Penal Code provision in effect at the time did not define "family" and "household" but instead referred to definitions found in sections 71.003 and 71.005 of the Family Code. See Act of May 26, 1999, 76th Leg., R.S., ch. 1158, 1, sec. 22.01(e), 1999 Tex. Gen. Laws 4063 (amended 2005). Under these sections, a "family" includes "individuals related by consanguinity or affinity" and "individuals who are former spouses of each other," whereas a "household" is "a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." TEX. FAM. CODE ANN. § 71.003, 71.005 (Vernon 2002). Family Code section 71.006 also defines "household" to include "a person who previously lived in a household," but the Penal Code did not reference that provision. See id. § 71.006 (Vernon 2002); Act of May 26, 1999, 76th Leg., R.S., ch. 1158, § 1, sec. 22.01(e), 1999 Tex. Gen. Laws 4063 (amended 2005).
Appellant relies on Tullos v. State, in which the court found the evidence insufficient to support a conviction for assault based on the defendant's threatening the victim when his judicial confession was for stabbing the victim and did not mention threatening. 698 S.W.2d 488, 490-91 (Tex.App.-Corpus Christi 1985, pet. ref'd). However, Tullos is inapposite here because there is no indication that the record was incomplete. See id. Further, Tullos was a direct appeal, not a collateral attack on the sufficiency of the evidence. For the judgment to be void, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence. Nix, 65 S.W.3d at 668 n. 14.
Because we overrule appellant's first issue based upon the lack of a complete record, we do not address the State's argument that the terms "family" and "household" are used interchangeably in sections 22.01(a) and 22.01(b)(2) of the Texas Penal Code and thus are not "different offenses."