Opinion
No. 05-03-01584-CR
Opinion Filed July 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81995-02. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
In this case we address whether the State may use extrinsic evidence to prove that a prior assault conviction involved "family violence," even if the judgment for the prior conviction was silent as to whether that offense involved family violence. Because the State is not barred from using extrinsic evidence to show that the prior assault conviction involved family violence, the nature of the prior conviction, we conclude that the trial court did not err in admitting such evidence. The facts of the case are known to the parties. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm. Ordinarily, the offense of assault-family violence is a Class A misdemeanor. Tex. Pen. Code Ann. § 22.01(b) (Vernon 2003). However, if the State is able to prove that the defendant was previously convicted of an offense against a member of the defendant's family or household, then the Class A offense is elevated to a third-degree felony. Tex. Pen. Code Ann. § 22.01(b)(2). A person who commits an assault against a family member or part of the defendant's household is subject to an affirmative finding of family violence and/or the use of that conviction to enhance a subsequent offense. See Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon Supp. 2004). Here Martin Rodriguez pled guilty to domestic assault under penal code section 22.01. See Tex. Pen. Code Ann. § 22.01(b)(2). However, Rodriguez pled not guilty to an enhancement paragraph that alleged a prior conviction for aggravated assault involving a family member. The judgment on the prior conviction contained no affirmative finding of family violence, even though the trial court was required to make an affirmative finding as part of the judgment. Nevertheless, based on evidence presented by the State, the trial court found the allegations in the enhancement paragraph true and assessed punishment at three years' confinement. Rodriguez appeals, contending in a single point of error that the trial court erred by allowing the state to introduce extrinsic evidence that the prior assault involved family violence. In the absence of an article 42.013 affirmative finding in a previous judgment of conviction for assault, the State is not precluded from introducing extrinsic evidence that the previous assault was in fact committed against a family member. See Mitchell v. State, 102 S.W.3d 772, 774 (Tex.App.-Austin 2003, pet. ref'd); see also Goodwin v. State, 91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.) (stating there is nothing to suggest that the Texas legislature intended article 42.013 to preclude the introduction of extrinsic evidence to prove a prior assault was against a family member). Rodriguez also argues his case is distinguishable from previous case law because his prior assault conviction was disposed of by a plea bargain. He claims the introduction of extrinsic evidence that the victim in the previous assault case was a member of his family violates the terms of the plea bargain in the prior case. Rodriguez argues that the use of extrinsic evidence will have a chilling effect on plea bargains. We do not address this argument absent proof that failure to include a family violence finding in the judgment was an express term of the plea bargain agreement. See Eakins v. State, 71 S.W.3d 443, 445 (Tex.App.-Austin 2002, no pet.). Lastly, Rodriguez argues collateral estoppel should apply to this case. Collateral estoppel does not bar the use of extrinsic evidence to prove that a previous assault involved family violence. Goodwin, 91 S.W.3d at 919. Moreover, a judgment without an affirmative finding does not necessarily mean that the trial court considered the issue and determined that family violence was not involved. Eakins, 71 S.W.3d at 445. The burden is on Rodriguez to demonstrate, by examination of the record of the first proceeding, that the factual issue he seeks to foreclose-whether the victim in the prior case was a member of his family-was actually decided in the first proceeding. Guajardo v. State, 109 S.W.3d 456, 459-60 (Tex.Crim.App. 2003), citing Ashe v. Swenson, 397 U.S. 436, 444 (1970). There is nothing in the record showing Rodriguez satisfied this burden. Thus, the trial court did not err in allowing the State to present proof that Rodriguez's prior assault involved a family member. We overrule Rodriguez's single point of error and affirm the trial court's judgment.
"In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.01, 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.