335 S.W.3d 784
Tex. App.2011Background
- Appellant indicted for assaulting a family member, with the conviction enhanced to a felony by a purported prior family-violence conviction.
- Judgment for the prior conviction did not name the assaulted person or describe the relationship to appellant; no trial testimony on these facts.
- State offered a plea agreement indicating the prior offense as “assault—BI—FM,” but no testimony explained what FM meant.
- No witness testified to the meaning of FM, and the State’s closing arguments did not constitute evidence of family violence.
- Article 42.013 requires an affirmative finding of family violence in the judgment, but the lack of such a finding does not preclude extrinsic evidence; here there was no extrinsic evidence to prove the prior family-violence conviction.
- The court reverses the felony judgment and remands for entry of a misdemeanor conviction and appropriate punishment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of prior family violence | Tanner | State | Insufficient to prove prior family-violence conviction |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) (standard for sufficiency review by rational trier of fact)
- State v. Eakins, 71 S.W.3d 443 (Tex.Crim.App. 2002) (extrinsic evidence admissible to prove prior family-violence conviction)