Opinion
PD-0800-23
10-23-2024
RUDY ZAPATA, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY
Slaughter, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Walker, and McClure, JJ., joined. Keller, P.J., filed a dissenting opinion in which Keel, J., joined. Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
OPINION
SLAUGHTER, J.
A trial judge's finding of fact must be supported by credible evidence. A family-violence finding is a finding of fact. Here, there was no admissible evidence to support the trial court's inclusion of a family-violence finding in Appellant's deferred adjudication order. Moreover, the charging instrument to which Appellant pled "no contest" did not allege any kind of relationship between Appellant and Complainant, and the plea paperwork signed by Appellant and his attorney alleged only "Abi"-assault bodily injury; it did not list the offense to which Appellant pled as an assault involving family violence. Further, Appellant made no admissions regarding the nature of his relationship with Complainant, and the record shows two separate home addresses for the two of them. Accordingly, even assuming that the trial court had authority to enter such a finding generally, the family-violence finding in this case was unsupported, and the trial court had no discretion to enter the unsupported factual finding. We reverse the judgment of the court of appeals which upheld the trial court's family-violence finding, and we strike the family-violence finding from the trial court's deferred adjudication order.
I. Background
A. Trial Proceedings
On August 18, 2020, the State filed an information charging Appellant with assault. The information contained the caption "assault bodily injury - married/cohab," but the body of the information contained no allegation regarding the relationship between Appellant and Complainant:
On or about the 12th Day of December, 2019, RUDY ZAPATA, hereinafter referred to as defendant, did then and there intentionally, knowingly, and recklessly cause bodily injury to another, namely: ANGELITA GONZALEZ, hereinafter referred to as complainant, by STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, PUSHING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, DRAGGING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, SLAMMING THE HEAD OF THE COMPLAINANT INTO A STAIRCASE WITH THE HAND OF THE DEFENDANT and
PULLING THE HAIR OF COMPLAINANT WITH THE HAND AND FINGERS OF DEFENDANT.
The supporting probable cause affidavit recited the above paragraph and included a summary of the responding officer's offense report. That summary alleged that the Complainant reported that she was Appellant's "girlfriend." There is no sworn testimony of the Complainant to this effect, nor is there any additional description of the nature of the relationship between Appellant and the Complainant. Additionally, the home address listed for Complainant was different from Appellant's address, indicating that they did not live together.
On May 3, 2022, Appellant signed a sworn "Application for Deferred Adjudication," which listed the charged offense as "Abi." That same day, the State, defense counsel, and Appellant signed a separate document entitled "Plea Bargain." The parties agreed that the State would recommend a sentence of twelve months of community supervision with deferred adjudication, a probated fine of $650, and "CC," which presumably meant court costs. This document does not list the offense. It provides that Appellant "agree[s] to the following plea bargain terms in exchange for accepting responsibility for the charged offense by way of a guilty or nolo contendere plea." The bottom of this page, after the signature block, contains a list of additional community supervision terms but states that "[t]he following recommendations do not constitute part of the formal plea agreement" and notes that they are not binding. The State checked six of the twelve "non-binding recommendations," including a "Family Violence Finding," a "Family Violence Course (BIPP)," and a "$100 fee to a Battered Women's Shelter." The exchange between the State and defense counsel reflected in the plea hearing's record indicates that the State checked the non-binding recommendations after defense counsel and Appellant signed the document and that they did not learn of the State's additional recommendations until after Appellant entered his "no contest" plea.
In the clerk's notes on the Application, which are below Appellant's signature, there is a check mark next to "AFFV," but there is no definition provided for this acronym. There is also no indication that this section was completed by the clerk before Appellant signed the Application and swore to it. Nothing else in the application indicates that Appellant was agreeing to plead to anything beyond "assault bodily injury."
At the start of the plea hearing, held by Zoom, the following exchange occurred between Appellant and the trial judge:
The Court: Are you the same Rudy Zapata who's been charged with an assault bodily injury-married offense alleged to have occurred on or about the 12th day of December of 2019?
Defendant: Yes, ma'am.
The Court: Mr. Zapata, that is a Class A misdemeanor. It's punishable by up to one year of incarceration at the Bexar County jail. In addition to that, you could face up to a $4,000 fine. And for this offense, your second amendment constitutional right to bear firearms and have guns can be taken away from you for the rest of your life. Mr. Zapata, do you understand the charge?
Defendant: Yes, ma'am.
The Court: How do you plead to the charge?
Defendant: No contest.
They then turned to a document entitled "Defendant's Waiver of Constitutional Rights and Court's Admonitions." This document stated:
I, RUDY ZAPATA, THE DEFENDANT, BEING PRESENT IN COURT IN PERSON, HEREBY WAIVE THE READING OF THE INFORMATION IN THE ABOVE NUMBERED AND STYLED CAUSE. I UNDERSTAND THAT I AM CHARGED WITH THE OFFENSE OF: Abi I HEREBY ENTER A PLEA OF NO CONTEST TO THIS CHARGE.
The plea hearing was held by Zoom, and Appellant was not present in the courtroom. But Appellant did agree to his appearance by Zoom.
The judge ensured that: (1) before the hearing, defense counsel and Appellant reviewed this waiver, and (2) Appellant understood the terms of his plea. After confirmation, Appellant, defense counsel, and the judge signed the document in which Appellant pled "no contest" to assault bodily injury.
After Appellant entered his plea on the record, the State informed the trial court that the agreement was for twelve months of community supervision with deferred adjudication, a probated $650 fine, and court costs. But the prosecutor continued by recommending, among other things, an affirmative family-violence finding. Defense counsel responded that the family-violence finding should be held in abeyance because "the affirmative family-violence finding only attaches to a judgment, and there is no judgment on this cause." The court denied the request for an abeyance, stating:
The allegation is as follows: That, Mr. Zapata, referred to as Defendant, did then intentionally, knowingly, recklessly cause bodily injury to another, namely Angelita Gonzalez, hereinafter referred to as the Complainant, by striking the complainant with the hand of the Defendant, pushing the Complainant with the hand of the Defendant, slamming the head of the Complainant into a staircase with the hand of the Defendant, and pulling the hair of the Complainant with the hand and fingers of Defendant.
The officer further wrote in his offense report that the Complainant reported that an argument had ensued between she and Defendant. That Defendant then struck, pushed, dragged, pulled the hair of the Complainant and slammed Complainant's head into a staircase. The officer in his report observed one or more red marks on Complainant, which Complainant stated
was the result of the assault by the Defendant. That strongly concerns the Court that that is the extent of the allegation.
We can go to trial or-or you can accept the Affirmative Finding of Family Violence.
After further discussions, the judge maintained that Appellant could either move forward with the plea agreement, which would result in the court including the family-violence finding in the deferred order, or Appellant could go to trial. Ultimately, defense counsel opened the plea to the court and stated that she would leave it to the court to decide the terms. The court then entered the family-violence finding in Appellant's deferred adjudication order. But the judge agreed to allow Appellant to appeal because she was "not too sure what it is that [Appellant] wanted . . . And so [she was] not sure that [she] followed the agreement."
B. Court of Appeals' Opinion
On appeal, the Fourth Court of Appeals affirmed the trial court's inclusion of the family-violence finding in the deferred adjudication order. Zapata v. State, 678 S.W.3d 325 (Tex. App.-San Antonio 2023). Appellant had argued that, under the circumstances, the trial court could not enter an affirmative family-violence finding because, pursuant to Article 42.013 of the Texas Code of Criminal Procedure, such a finding cannot be entered absent a judgment. Id. at 327. Given that the trial court issued an order of deferred adjudication, there was no "judgment" in the case, and so, according to Appellant, the trial court lacked authority to enter the finding. Id.
See Tex. Code Crim. Proc. art. 42.013 ("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 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.") (emphasis added).
The court of appeals agreed with Appellant that an order of deferred adjudication is not a "judgment" and, therefore, Article 42.013 of the Texas Code of Criminal Procedure could not apply. Id. at 328 (noting that Article 42.013 applies only to "judgments"). The court of appeals further noted that Texas Penal Code section 22.01(f)(1), which treats a prior deferred adjudication order for an assault involving family violence as a conviction for enhancement purposes, could not transform Appellant's current deferred adjudication into a conviction. Id. It also noted that "the Texas Legislature has established a list of affirmative findings a court must make when it places on deferred adjudication community supervision a defendant charged with certain offenses," and "an affirmative finding of family violence is not included in this list." Id. at 329 (citing Tex. Code Crim Proc. Art. 42A.105). Thus, the court determined that the Legislature "did not intend to require an affirmative finding of family violence to be entered in an order of deferred adjudication in an appropriate case." Id. (emphasis added).
Despite its agreement with Appellant on the foregoing issues, the court of appeals nevertheless held that the trial court still had discretion to enter a family-violence finding in the order of deferred adjudication here. See id. at 329-30. This determination was based on two provisions in Chapter 42A of the Texas Code of Criminal Procedure. First, the court cited Article 42A.104(a), which allows the trial court to impose reasonable conditions of community supervision. Id. at 329. The court of appeals initially noted that a family-violence finding is a "finding of fact, not a condition of community supervision that could be violated," and so this provision, taken on its own, could not justify the trial court's inclusion of the family-violence finding. Id. But the court then further cited Article 42A.504(b), which requires the trial court to impose a fine on individuals "convicted of an offense under Title 5, Penal Code, that the court determines involves family violence." Id. (citing Tex. Code Crim. Proc. art. 42A.504(b)). This provision, the court reasoned, meant that a family-violence finding was relevant to the imposition of such a condition. Id. Therefore, the court of appeals found that these two articles, "operating together, gave the trial court discretion to make an affirmative finding of family violence in this case." Id. at 330. Thus, while the family-violence finding was not required, it was permissible. Id.
The court of appeals then concluded that "the finding in this case is supported by Zapata's plea of no contest to the information which specifically alleged an assault with bodily injury married/cohabitating." Id. The court reasoned that "the trial court recited the evidence of the assault" during the plea hearing and that Appellant ultimately pled "open" to the trial court. Id. The court of appeals stated that "going open to the court makes all the difference" in this case and that, by "going open," Appellant "ultimately left the decision to make this finding to the court." Id. The court concluded, "Although we agree with Zapata that a trial court is not required to enter a family violence finding and that a family violence finding is not a condition of deferred adjudication community supervision, we disagree that the trial court, in an open plea, wholly lacked discretion to enter a finding before adjudication." Id.
We then granted Appellant's petition for discretionary review to examine the appellate court's holding that the trial court had discretion to enter a family-violence finding under these circumstances. The question on which we granted review asks, "Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?"
II. Analysis
We do not ultimately resolve here the purely legal question of whether a trial judge has discretion to enter a family-violence finding in a deferred adjudication order. This is because, even assuming that a trial judge has such authority or discretion in the abstract, in a given case, there must still be adequate evidence to support such a finding. A review of the record in this case demonstrates that there was, in fact, no evidence whatsoever to support the trial court's family-violence finding. Contrary to the court of appeals' holding, Appellant's plea to ordinary assault bodily injury cannot support the court's entry of that finding. When a factual finding is unsupported, a trial court lacks discretion to enter it. Because the issue on which we granted review in this case is intertwined with the underlying question of whether any evidence could support the trial court's finding, we will resolve this case on that narrower basis, and we do not reach the broader legal question presented. Accordingly, we reverse the court of appeals' judgment upholding the affirmative family-violence finding, and we strike that finding from the trial court's deferred adjudication order.
A family violence affirmative finding, as a finding of fact, must be supported by adequate evidence. Such evidence may come from stipulated facts, judicial confessions, the introduction of other competent evidence, or (under certain circumstances) by virtue of the defendant's plea itself. See Menefee v. State, 287 S.W.3d 9, 13-14 (Tex. Crim. App. 2009); Ex parte Williams, 703 S.W.2d 674, 678-82 (Tex. Crim. App. 1986).
The scope of what constitutes family violence is governed by statute. "Family violence" is defined as:
(1) 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;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
"Family" is defined as:
[I]ndividuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.Id. § 71.003.
"Household" is a "unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." Id. § 71.005.
Finally, "dating violence," is defined as follows:
(a) "Dating violence" means an act, other than a defensive measure to protect oneself, by an actor that:
(1) is committed against a victim or applicant for a protective order:
(A) with whom the actor has or has had a dating relationship; or
(B) because of the victim's or applicant's marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and
(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
(b) For purposes of this title, "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship" under Subsection (b).Id. § 71.0021.
Based on these statutory definitions, to support the trial court's inclusion of an affirmative family-violence finding here, there had to be some evidence to establish that Complainant and Appellant were members of the same family or household, or that they were or had been in a dating relationship. But, as is apparent from our discussion of the record above, there was no evidence identifying any kind of relationship between Appellant and Complainant that would support a family-violence finding, and the judge did not hold an evidentiary hearing. We therefore look to the allegations to which Appellant pled "no contest."
After Appellant pled no contest, the trial court heard the agreed upon plea terms and the State's recommendations, read the body of the information and the probable cause affidavit, and stated "[w]e can go to trial or-or you can accept the Affirmative Finding of Family Violence." As discussed later, Appellant did not admit to family violence by pleading no contest, and the evidence does not support an affirmative family-violence finding.
When a defendant pleads "guilty" or "no contest" to the offense as charged, he is admitting to all the material facts alleged in the charge. Williams, 703 S.W.2d at 682 (citing United States v. Bendicks, 449 F.2d 313, 314-15 (5th Cir. 1971)). Here, according to the sworn plea paperwork signed by Appellant, Appellant pled "no contest" to the offense of "assault bodily injury." Even assuming that he, in fact, pled "no contest" to the information which was captioned "assault bodily injury - married/cohab," the body of the information does not allege a family, household, or dating relationship between the Complainant and Appellant:
On or about the 12th Day of December, 2019, RUDY ZAPATA, hereinafter referred to as defendant, did then and there intentionally, knowingly, and recklessly cause bodily injury to another, namely: ANGELITA GONZALEZ, hereinafter referred to as complainant, by STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, PUSHING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, DRAGGING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, SLAMMING THE HEAD OF THE COMPLAINANT INTO A STAIRCASE WITH THE HAND OF THE DEFENDANT and PULLING THE HAIR OF COMPLAINANT WITH THE HAND AND FINGERS OF DEFENDANT.
The body of the information includes every element of assault, as defined by Texas Penal Code section 22.01(a)(1), but does not include the elements necessary to support a charge of assault family violence under Penal Code Section 22.01(b)(2). See Tex. Penal Code § 22.01(a)(1) (bodily injury assault); 22.01(b)(2) (assault family violence). Because none of the allegations in the body of the information establish any kind of family or dating relationship between Appellant and the Complainant, Appellant's admission to the material facts set forth in the information do not provide any evidence to support a family-violence finding. Appellant's nolo contendere plea admitted every element of assault causing bodily injury, and nothing more. Williams, 703 S.W.2d at 678.
Because Appellant's plea to the information cannot supply the evidence necessary to support the family-violence finding, we must look elsewhere. The only possible evidence regarding the relationship between Appellant and the Complainant was the inadmissible hearsay statement in the officer's probable cause affidavit, which stated that the Complainant told the officer that Appellant was her "boyfriend." This statement, however, does not constitute adequate evidence to support the finding. The Complainant never provided a sworn statement or testimony describing her relationship with Appellant, and Appellant never admitted that he was the Complainant's boyfriend. Moreover, the mere mention to the officer of Appellant being the Complainant's "boyfriend" does not satisfy the statutory definition for what constitutes a dating relationship. The applicable statutes provide that the existence of a dating relationship "shall be determined based on consideration of" the length and nature of the relationship and the frequency and type of interactions between the individuals, and there was nothing in the record to establish those facts. See Tex. Fam. Code § 71.0021; Edward v. State, 635 S.W.3d 649, 657-59 (Tex. Crim. App. 2021) (finding sufficient evidence of a dating relationship when: (1) the responding officer testified that the complainant called the defendant her boyfriend, (2) the assault occurred in the complainant's apartment, (3) the defendant was found sitting on complainant's bed, and (4) the complainant completed and signed a family violence form).
The trial court did not read this statement into the record.
Here, the probable cause affidavit contained an inadmissible hearsay statement in which the officer reported that the Complainant called herself Appellant's girlfriend. Not only did that fail to establish a dating relationship for purposes of a family-violence finding, but the trial court did not even refer to that statement when declaring the reasoning behind its decision. Even assuming the trial court relied on the Complainant's hearsay statement, there is still no evidence of the other factors that must be considered. Edwards, 635 S.W.3d at 657 (noting that the fact finder must at least "consider the listed factors").
The record also does not support an affirmative family-violence finding under section 71.004(1) of the Texas Family Code (stating that "family violence" is "an act by a member of a family or household against another member of the family or household"). There is no evidence of the Complainant and Appellant being family members, and no evidence of them being current or former members of the same household.
Therefore, after examining the totality of record, we conclude that the trial court's family-violence finding was unsupported by any evidence. For the reasons explained above, the court of appeals erred by concluding that the finding was supported by Appellant's plea of "no contest" because he did not plead to any allegations that could establish a family or dating relationship between him and Complainant. And there is no other evidence in the record that could support the existence of such a relationship. The absence of any evidence to support the family-violence finding results in the judge's lack of discretion to enter the finding. Accordingly, the finding must be deleted from Appellant's order of deferred adjudication. Fann v. State, 702 S.W.2d 602, 603 (Tex. Crim. App. 1985) ("[B]ecause the trial judge should not have made the affirmative finding, we will reform and correct the judgment of conviction by deleting [the finding].").
III. Conclusion
We conclude that the trial court erred by entering a family-violence finding in Appellant's order of deferred adjudication because, even assuming that a court has general authority to make such a finding, no facts supported the finding here. We reverse the judgment of the court of appeals that had upheld the trial court's finding, and we strike the affirmative family-violence finding from the trial court's deferred adjudication order.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
The Court grants relief on the basis of sufficiency of the evidence, but that issue was not raised on appeal, on PDR, or in briefing to this Court. The court of appeals did comment in passing that the record supported Appellant's plea, but it perceived the matter to be uncontested. Even if that passing comment is enough for this Court to grant a sufficiency issue on its own, the Court has not done that and has not allowed briefing on it. Consequently, the State has not had an opportunity to address the sufficiency of the evidence to support the family-violence finding. In its briefing before us, the State argued an estoppel issue that touches on sufficiency, but it might have made other arguments if it had known that sufficiency was an issue, and the Court does not even address the State's estoppel argument. Unless and until we grant review of a sufficiency issue on our own, it is not properly before us. And we should not decide the issue without expressly giving the parties the opportunity to weigh in on it. Moreover, it appears that multiple colorable arguments for upholding the sufficiency of the evidence could be made in this case.
1. The issue was not raised on appeal to the court of appeals.
In Appellant's opening brief on appeal, he raised two claims: (1) "The trial court erred by entering an affirmative finding of family violence, as there is no judgment to enter the finding into." (2) "The trial court erred by entering an affirmative finding of family violence, as the affirmative finding of family violence is not one of the findings specified by the code to be entered in a deferred adjudication." Nowhere in that brief did he argue that the evidence was insufficient to support the family-violence finding. In his reply brief on appeal, Appellant claimed: (1) "The trial court was prohibited from entering an affirmative finding of family violence." (2) "A judge does not have discretion to enter an affirmative finding." Appellant continued his argument that there was no judgment, claimed that deferred adjudication was not a judgment or conviction, and claimed that, therefore, there was no authority to enter a family-violence finding in a deferred-adjudication order. He did not argue that the evidence was insufficient to support a family-violence finding.
2. The court of appeals did comment on the matter in passing, but did not address the issue as "unassigned error."
A court of appeals can address an issue that was not raised on appeal as "unassigned error," as long as the issue was preserved at trial or did not need to be preserved. The court of appeals did comment in passing that the record supported Appellant's plea. The court said, "Finally, the finding in this case is supported by Zapata's plea of no contest to the information which specifically alleged an assault with bodily injury married/cohabitating." But it is clear from its opinion that the court of appeals took the sufficiency of the evidence on the family-violence finding as a given, an uncontested matter. The court of appeals never suggested that the sufficiency of the evidence to support the family-violence finding was being reviewed or called into question.
Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex. Crim. App. 2006).
Zapata v. State, 678 S.W.3d 325, 330 (Tex. App.-San Antonio 2023).
Id.
See id.
See id. at passim.
"As a general proposition, this Court will review only the 'decisions' of the courts of appeals." We have recognized exceptions to the practice of reviewing only decisions, but those exceptions have involved reviewing an outstanding issue that remains after reviewing the issue the court of appeals decided. But the sufficiency issue in the present case is not an outstanding issue implicated by the resolution of different issue. It is the only issue the Court decides.
Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014).
See id.
3. We have not granted review of the issue.
Appellant did not raise the issue in his petition for discretionary review. Appellant's sole ground for review was: "Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?" In his "reasons for review" section, Appellant claimed that the court of appeals "inappropriately combined and misapplied two Texas Statutes, and attributed discretion to the Trial Court where no explicit statutory provision grants such discretion." He further claimed: "A review by this Court is essential to determine whether the Trial Court possesses discretion to include an affirmative finding of family violence in the absence of a judgment." His summary of argument and argument sections further amplified the only claim he raised: that the court of appeals erred to hold that a trial court ever has authority to make a family-violence finding in an order deferring adjudication of guilt. As with his prior briefing, in his PDR he did not, even in passing, make any claim that the evidence was insufficient to support a family-violence finding.
We do have the power to grant discretionary review "without a petition." We can do so "at any time before the mandate of the court of appeals issues." But we have not done so in this case. Until and unless we grant review of the sufficiency issue on our own (assuming we have authority to do so), the issue is not properly before us.
Id. 67.1.
4. As part of an estoppel argument in its briefing before us, the State argued that Appellant's no-contest plea supported the family-violence finding, but the Court does not address the State's argument.
The State contended that Appellant was estopped from challenging the family-violence finding because of his no contest plea. The State argued that Appellant's oral plea of no contest embraced such a finding. The State pointed out that the trial court said during the plea colloquy:
Mr. Zapata, I'm going to accept your no contest plea for the assault bodily injury-married offense alleged to have occurred on the 12th day of December 2019 in Case No. 644950.
Emphasis in State's brief.
The State argued that, by pleading no contest after the trial court's statement, Appellant embraced the "married" element, which was "the functional equivalence of family violence." The State set out the information in full, including the caption that said "assault bodily injury-married/cohab." The State further argued that "[e]ven if a caption isn't considered part of the alleged offense when the body alleges a complete offense and the body and caption differ, the trial judge understood that it did and thus included it as an element, and Appellant accepted it." The Court does not address this argument.
Citation omitted.
5. The State has not been given notice that sufficiency is an issue in the case.
Appellant's brief reiterated as his sole issue: "Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?" His summary of argument and argument sections reflected the same arguments he raised in his PDR. As with his earlier briefing, his briefing before us included no claim or argument suggesting that the evidence was insufficient to support the family-violence finding.
The State did raise its estoppel argument, and that argument does touch on sufficiency. If Appellant's plea conclusively estopped him from challenging the finding, then either the evidence was sufficient or Appellant is estopped from challenging its sufficiency.
But evidence could be sufficient for a reason short of one that gives rise to estoppel. The State made its estoppel argument as an effort to show that Appellant was barred from challenging the trial court's statutory authority to enter a finding. Had the State known that sufficiency was an issue, it might have made other arguments to support sufficiency.
For example, it might have relied upon the hearsay statement in a probable-cause affidavit that the complainant told a police officer that she was Appellant's girlfriend. The Court addresses that statement and rejects it as a basis for finding the evidence sufficient, but it is possible that the State could have marshaled arguments that would have persuaded the Court otherwise. We don't know, because the State has not been given that opportunity.
Or the State might have made an argument that we cannot yet anticipate.
6. There are colorable arguments for finding the evidence sufficient, which makes the Court's refusal to give the parties the opportunity to weigh in on the issue even less defensible.
As I alluded to earlier, the State argues that the oral colloquy provides support for the family-violence finding. There is at least an argument that the trial court adopted the caption when it asked Appellant what he was pleading to and that Appellant specifically pled no contest to the charge as explained by the judge. As the Court explains, the following happened:
The Court: Are you the same Rudy Zapata who's been charged with an assault bodily injury-married offense alleged to have occurred on or about the 12th day of December of 2019?
Defendant: Yes, ma'am.
The Court: Mr. Zapata, that is a Class A misdemeanor. It's punishable by up to one year of incarceration at the Bexar County jail. In addition to that, you could face up to a $4,000 fine. And for this offense, your second amendment constitutional right to bear firearms and have guns can be taken away from you for the rest of your life. Mr. Zapata, do you understand the charge?
Defendant: Yes, ma'am.
The Court: How do you plead to the charge?
Defendant: No contest.
Emphasis mine.
Further evidence that the trial court saw it this way was the following statement it made near the end of the plea proceedings:
Mr. Zapata, I'm going to accept your no contest plea for the assault bodily injury-married offense alleged to have occurred on the 12th day of December 2019 in Case No. 644950.
Emphasis mine.
No objection was made to this statement, and Appellant did not personally express any disagreement with it.
Another colorable argument is that the probable-cause affidavit included a statement by the complainant to a police officer that she was Appellant's "girlfriend." "Family violence" includes "dating violence," and dating violence occurs in a "dating relationship." A "dating relationship" is "a continuing relationship of a romantic or intimate nature." In ordinary parlance, when a woman says that she is a man's "girlfriend," she is conveying that she is in a continuing romantic relationship with him. The Court makes much of the existence of statutory factors used to determine this (length and nature of the relationship and the frequency and type of interaction), but these factors are not part of the definition itself and simply go to assess whether the definition was met, and the "girlfriend" moniker itself suggests that all of these factors weigh in favor of finding a dating relationship.
Id. § 71.0021(a)(1)(A).
Id. § 71.0021(b).
Id. § 71.002(b)(1)-(3).
As the Court explains, the "girlfriend" statement was hearsay (within a police offense report that was hearsay within a probable-cause affidavit that was itself hearsay), but hearsay admitted without objection has probative value. It is true that the trial court did not read into the record the part of the probable-cause affidavit where the complainant told the police officer that she was Appellant's girlfriend. But it is also clear from the record that the trial court relied on the probable cause affidavit in making the family-violence finding. In justifying imposing the family violence finding, the trial court specifically referred to the content of the police offense report cited in the probable-cause affidavit:
Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.").
The officer further wrote in his offense report that the Complainant reported that an argument had ensued between she and Defendant. That the Defendant then struck, pushed, dragged, pulled the hair of the Complainant and slammed the Complainant's head into a staircase. The officer in his report observed one or more red marks on Complainant, which Complainant stated was a result of the assault by the Defendant. That strongly concerns the Court that that is the extent of the allegation.
It seems obvious that the trial court considered the "girlfriend" reference in the affidavit as well and that the whole context of the abuse-occurring during an argument where the complainant is slammed into a staircase-is at least suggestive of domestic violence. And of course, this would have been an obvious time for the defense to say that, regardless of the specifics of the defendant's violence, a family-violence finding was not supportable because there was no evidence that Appellant and the complainant were in a dating relationship. The obvious reason the defense did not make that argument here is that the existence of a dating relationship was indisputable. The probable cause affidavit is in the record, and the trial court clearly relied upon it. Given the nature of the proceedings, a nonjury setting that was mostly a plea agreement with certain issues left to the trial judge's discretion, it is at least arguable that the entire probable-cause affidavit can be reviewed on appeal, regardless of what portions were read into the record.
7. Conclusion.
Appellant has not, to this day, raised the sufficiency claim: not on appeal, not in his PDR, and not in his briefing before this Court. The Court addresses the claim on its own, without granting review of it and without giving the parties any opportunity to weigh in on the matter. The Court does not address the one colorable argument the State makes that could support sufficiency, and the Court rejects another potential colorable argument without input from the parties while underestimating the strength of that argument.
I respectfully dissent.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
We granted Appellant's petition for discretionary review in this case to consider whether a trial court exceeds its authority when it makes and enters an affirmative finding of family violence when imposing an order of deferred-adjudication community supervision. The court of appeals decided that a trial court was not so prohibited. I agree, and so I would affirm the court of appeals' judgment.
The Court instead reverses the court of appeals' judgment, but on the basis of an issue: (1) that Appellant does not even raise here; and (2) upon which we have not even granted review. Appellant makes the purely legal argument that a trial court is never authorized to enter an affirmative finding of family violence when placing a defendant on deferred-adjudication community supervision. The Court side-steps that issue today in favor of holding that there was no evidence in this case to support such an affirmative finding in any event.
It will no doubt come as an unwelcome surprise to the State that the Court should resolve the case on this unraised issue, since it had no notice that the issue was ripe for consideration in this Court, and hence no opportunity to contest it in its responsive brief on the merits of Appellant's petition. To ambushing the State in this way, and because I would resolve the purely legal issue that Appellant did raise against him, I respectfully dissent.
In its role as a discretionary review court, the Court's main objective should be to shepherd the jurisprudence, not necessarily to make sure that every individual case is decided according to our own lights. See Ex parte Sadler, 638 S.W.3d 711, 712 (Tex. Crim. App. 2022) (Yeary, J., dissenting). To resolve the purely legal question upon which the Court actually granted discretionary review in this case would make a far greater contribution to the jurisprudence than the case-specific, fact-based resolution the Court instead imposes today.
I. Background
Appellant was charged by information with the Class A misdemeanor offense of assault causing bodily injury. Texas Penal Code § 22.01(a)(1), (b). In exchange for a recommendation that the trial court impose deferred-adjudication community supervision, but without an agreement with respect to terms and conditions thereof, Appellant pled nolo contendere to the charged offense. At the plea hearing, the State asked the trial court to enter an affirmative finding that the assault had involved family violence.
Appellant objected to the requested affirmative finding on the basis that, according to Article 42.013 of the Texas Code of Criminal Procedure, such a finding can only be entered "in the judgment of the case[.]" Tex. Code Crim. Proc. art. 42.013. Because the trial court was placing Appellant on deferred-adjudication community supervision, for which there could be no "judgment," he contended, the trial court could not make a family-violence affirmative finding. The trial court overruled Appellant's objection but gave him permission to appeal the question.
Appellant did not object, however, that there was no factual basis to support such an affirmative finding. Nor did he bring a point of error on direct appeal raising such a claim. Instead, his "sole argument on appeal" was, as identified by the court of appeals, that such an affirmative finding may only be entered into a "judgment," and because there is no judgment in deferred adjudication proceedings, such a finding is legally unauthorized. Zapata v. State, 678 S.W.3d 325, 327 (Tex. App.-San Antonio 2023).
Article 42.013 reads, in its entirety: "In the trial of an offense under Title 5, Penal Code [Offenses Against the Person], if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter that affirmative finding in the judgment of the case."
This Court has found authority for an appeal from an order deferring adjudication in Article 44.01(j) of the Texas Code of Criminal Procedure. Dillehey v. State, 815 S.W.2d 623, 625-26 (Tex. Crim. App. 1991).
On appeal, the Fourth Court of Appeals affirmed the trial court's decision to include the affirmative finding. Zapata v. State, 678 S.W.3d 325 (Tex. App.-San Antonio 2023). The court of appeals agreed with Appellant's argument that a family violence affirmative finding was not required by the terms of Article 42.013, since there is no "judgment" in which it may be entered under those circumstances. Id. at 328. It also agreed with Appellant that Section 22.01(f)(1) of the Penal Code-which permits the use of a prior deferred adjudication order as a "previous conviction" for purposes of elevating a simple assault to a greater level of offense for a repeat offender-does not somehow render the order deferring adjudication a "judgment" for purposes of applying Article 42.013. Id.
But the court of appeals nevertheless concluded that a family-violence affirmative finding was permissible, even if not required, in a deferred-adjudication context. See id. at 329-30. It determined this to be so based on two other provisions in the Code of Criminal Procedure that separately govern deferred adjudication and community supervision. See id. at 330 ("We conclude [that] articles 42A.104(a) and 42A.504(b), operating together, gave the trial court discretion to make an affirmative finding of family violence in this case."). We granted Appellant's petition for discretionary review to examine this holding. Addressing this issue-and only this issue-we should affirm.
II. Analysis
First, nothing about the mandate in Article 42.013-that family-violence affirmative findings, when made in the course of ordinary trials, must be "enter[ed] . . . in the judgment of the case[,]"-prohibits a court from making family-violence affirmative findings in other contexts. See Chase v. State, 448 S.W.3d 6, 14 (Tex. Crim. App. 2014) (observing that the "negative implication" doctrine "depends on context" and "does not apply unless it is fair to suppose that the legislature considered the unnamed possibility and meant to say no to it") (internal brackets and quotation marks omitted). Indeed, as the court of appeals also observed, there is another mandatory statute that explicitly requires that certain affirmative findings be made and filed "with the papers in the case" in orders granting deferred-adjudication community supervision. See Tex. Code Crim. Proc. art. 42A.105 (mandating that certain affirmative findings in deferred- adjudication cases be filed "with the papers in the case" when the trial court "determines" they are warranted). It cannot possibly be accurate to say, then, as Appellant would have us say, that Article 42.013's requirement of such a finding in a different situation categorically rules out affirmative findings in orders conferring deferred-adjudication community supervision.
For example, Article 42A.105, subsections (a) through (c), require that affirmative findings be made and filed in the papers in the case when the trial court determines that the victim of certain offenses are younger than a certain age. Tex. Code Crim. Proc. art. 42A.105 (a), (b), (c).
It is true, as Appellant points out, that a family-violence affirmative finding is not among those findings that Article 42A.105 explicitly requires to be filed "with the papers of the case" when deferred adjudication community service is granted. Appellant's Initial Brief at 9-10. On that basis, Appellant contends that "[i]t appears the absence of an affirmative finding of family violence in [Article 42A.105] indicates the legislature's intention to prohibit such findings for those receiving deferred adjudication." Id. at 9. Appellant would essentially have us apply the maxim of statutory construction known as expressio unius est exclusio alterius to hold that a family-violence affirmative finding is statutorily prohibited by negative implication.
But the expressio unius est exclusio alterius maxim "must be applied with great caution, since its application depends so much on context." Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts at 107 (2012). "The maxim does not mean that anything not required is forbidden." Norman J. Singer & Shambie Singer, Sutherland: Statutes and Statutory Construction § 47:25 (7th ed. 2014) at 444-45. The fact that Article 42A.105 mandates that certain affirmative findings be made in certain deferred-adjudication cases does not necessarily foreclose the possibility that a trial court would be permitted, in its discretion, to make and file other kinds of affirmative findings-say, for example, a family-violence affirmative finding-"with the papers of the case" where appropriate. Article 42A.105, on its face, simply does not speak to the question of when it might be permissible for trial courts to enter other affirmative findings. And there are good contextual reasons to conclude, as the court of appeals did, that an affirmative finding of family violence would be particularly appropriate in cases like this one. Zapata, 678 S.W.3d at 329-30.
Under Article 42A.104(a), a trial court is authorized to "require any reasonable condition of deferred adjudication community supervision that a judge could impose on a defendant placed on community supervision for a conviction that was probated and suspended[.]" Tex. Code Crim. Proc. art. 42A.104(a). Article 42A.504(b), in turn, requires a trial court, as a condition of regular community supervision-in cases where the defendant is "convicted of an offense under Title 5, Penal Code [Offenses Against the Person], that the court determines involves family violence"-to order the defendant "to pay a fine of $100 to a family violence center[.]" Tex. Code Crim. Proc. art. 42A.504(b). It may also (but is not required to) order a family-violence probationer to attend a battering intervention and prevention program, or, failing that, counseling sessions with an appropriately licensed professional. Tex. Code Crim. Proc. art. 42A.504(c).
It appears from the record that the trial court in this very case did in fact impose both of these conditions of deferred-adjudication community supervision.
Under Article 42A.104(a), a trial court placing an offender on deferred-adjudication community supervision "may" impose either of these conditions of probation. Tex. Code Crim. Proc. art. 42A.104(a). Whether a defendant who is to be placed on deferred-adjudication community supervision has committed a crime involving family violence is therefore a relevant question, the answer to which would be appropriate to memorialize in the court's deferred-adjudication order, or at least among the papers of such a case. Also, the entry of an affirmative finding of family violence "with the papers in the case" can facilitate, or at least help to explain, the trial court's imposition of these relevant conditions of deferred adjudication community supervision.
III. Conclusion
Nothing in the language of either Article 42.013 or Article 42A.105 forecloses a trial court's discretion to enter a family-violence affirmative finding. On that basis, I would conclude, as did the court of appeals, that such a finding falls squarely within the trial court's discretion. Because this Court chooses not to answer that question and instead to reverse the judgment of the court of appeals on a ground over which we have not even granted review, I respectfully dissent.