Opinion
No. 05-09-00652-CR
02-06-2012
RION PHEAL SNOWDEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F09-00559-I
OPINION ON REMAND
Before Justices Richter, Lang-Miers, and Myers Opinion By Justice Richter
A jury convicted appellant of assault causing bodily injury to a member of his family and/or household, enhanced by a prior conviction of assault of a family member, and sentenced him to two years' imprisonment. In his original brief on appeal, appellant challenged the sufficiency of the evidence and asserted the trial court erred in overruling his objection to a comment concerning his failure to testify. On original submission, we concluded the trial court erred in overruling the objection. In conducting the harm analysis for error of constitutional dimension, we applied the factors identified in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). Because we concluded the error caused appellant harm, we reversed and remanded for further proceedings.
The State filed a petition for discretionary review in the Texas Court of Criminal Appeals. The Court concluded that some of the Harris factors have no bearing “on whether a particular constitutional error 'did not contribute to the verdict obtained,'” and reversed our judgment and remanded the case to this court for consideration of appellant's remaining issue. See Snowden v. State, No. PD-1524-10, 2100 WL 4467820 at *3, 7 (Tex. Crim. App. September 28, 2011). Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990). Appellant filed a supplemental brief. The State filed neither a waiver nor a brief. Having considered appellant's remaining issue from original submission, for the reasons that follow, we affirm the trial court's judgment. Sufficiency of the Evidence .
In his sole remaining issue, appellant contends the evidence is insufficient to establish the prior conviction used for enhancement purposes. We disagree.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, No. PD--1126--10, 2011 WL 4577870, at *3 (Tex. Crim. App. Oct. 5, 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 2011 WL 4577870, at *4.
Under article 42.013 of the Texas Code of Criminal Procedure, the trial court is charged with making an affirmative finding of family violence whenever the facts of the case support one. See Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006). This affirmative finding can then be used to enhance a subsequent assault to a family member from a misdemeanor to a felony. See Tex. Penal Code Ann. §22.01(b)(2) (West 2011). Family violence is defined by the family code. See Tex. Fam. Code Ann. § 71.003-71.005 (West 2008). The State meets its burden of showing that a defendant has previously been convicted of assaulting a member of his family or household by producing a judgment containing an affirmative finding of family violence. See Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006).
Here, the State introduced a certified copy of appellant's prior conviction in Williamson County. The judgment reflects that appellant was convicted for “family assault violence,” and included an affirmative article 42.013 finding of family violence. Appellant contends the evidence is insufficient because there was no extrinsic evidence to establish he previously assaulted a member of his household. This argument is misplaced. In the absence of an affirmative finding of family violence, the State may use extrinsic evidence to prove that a previous assault was committed against a family member. See State v. Elkins, 71 S.W.3d 443, 445 (Tex. App.-Austin 2002, no pet.). An affirmative article 42.013 finding, however, eliminates the need for extrinsic evidence to enhance a subsequent conviction for family violence. Goodwin v. State, 91 S.W.3d 912, 919 (Tex. App.-Fort Worth 2002, no pet.). Thus, the evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that appellant had been previously convicted of assaulting a member of his family or household, rendering the assault in this case a third degree felony. Appellant's issue is overruled. The judgment of the trial court is affirmed.
MARTIN RICHTER
JUSTICE
Do Not Publish Tex. R. App. P. 47 090652RF. U05
In section 71.004 of the Texas Family Code, family violence is defined, in relevant part, as follows:
“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 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.