NO. 07-99-0379-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 1, 2003
______________________________
RICARDO CHAVEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 40,485-C; HONORABLE PATRICK A. PIRTLE, JUDGE
_______________________________
Before JOHNSON, C.J., QUINN and REAVIS, JJ.
ON REMAND
In a prior opinion, we held the trial court's decision, over appellant's objection, to proceed with eleven jurors after the charge had been read to the jury was constitutional error defying harmless error review. As a result, we reversed appellant's conviction for aggravated assault and remanded the proceeding to the trial court for a new trial. Chavez v. State, 34 S.W.3d 692 (Tex.App.--Amarillo 2000, pet. granted), rev'd, 91 S.W.3d 797 (Tex.Cr.App. 2002). The Court of Criminal Appeals granted the State's petition for discretionary review. In its opinion reversing this Court, the Court of Criminal Appeals began by noting: (1) the Texas Constitution requires that in a felony trial, the jury be composed of twelve members; (2) the right to a twelve-member jury is not absolute; and, (3) pursuant to the authority granted to it by the Texas Constitution, the Legislature enacted article 36.29 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2003). The Court went on to hold "because the decision to proceed with the trial over appellant's objection is a violation of a purely statutory right, . . . the error is subject to a harm analysis under Rule of Appellate Procedure 44.2 (b)." The Court then reversed and remanded the case to this Court with instructions to conduct a harm analysis. Chavez, 91 S.W.3d at 801.
The existence of error is not at issue. Therefore, because the two previous published opinions in this case adequately reflect its factual and procedural history, we limit our review to the events essential to a harm analysis. The burden to demonstrate whether appellant was harmed by trial court error does not rest on appellant or the State. Johnson v. State, 43 S.W.3d 1, 5 (Tex.Cr.App. 2001). Rather, it is our responsibility to assess harm after reviewing the record. Id. In conducting our review, we will disregard any error, defect, irregularity, or variance that does not affect a substantial right of appellant. Tex. R. App. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson, 43 S.W.3d. at 4. (1)
In a supplemental brief on remand, appellant suggests harm should be presumed because the trial court, after reading the charge, allowed the jury to separate when emergency personnel transported one of its members, Juror Hisel, to the hospital following a heart attack. Because the trial court defied the mandatory prohibition against jury separation under article 35.23 of the Code of Criminal Procedure, appellant maintains it was the State's burden to rebut his threshold showing of harm when he objected to proceeding with eleven jurors. Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon Supp. 2003). The State failed to produce such evidence at the time of separation, therefore, claims appellant, the error has not been proven harmless, and this Court should reverse his conviction.
Initially, we note appellant did not raise on original submission of this case the complaint he now asserts under article 35.23. Nevertheless, we have reviewed the authority he advances in support of that contention and agree with the State's response that jury separation is not an issue in the harm analysis before us. (2) The purpose behind the prohibition against jury separation during deliberations is to prevent jury tampering. Hood v. State 828 S.W.2d 87, 93 (Tex.App.-Fort Worth 1992, no pet.). In this case, after Juror Hisel left the courthouse, the presiding juror, in response to questioning by the trial court, announced that Juror Hisel participated in the verdict before becoming ill, and that the guilty verdict was Juror Hisel's individual verdict. As a result, there can be no complaint the jury was tampered with in any way. Furthermore, the fact the jury reached a unanimous guilty verdict prior to Juror Hisel's disability supports our conclusion the trial court's error in accepting the verdict from only eleven jurors did not have a substantial and injurious effect or influence in determining that verdict. We, therefore, hold the trial court's error did not affect the substantial rights of appellant. Tex. R. App. P. 44.2(b). Appellant's issue is overruled.
Accordingly, the judgment is affirmed.
Don H. Reavis
Justice
Publish.
1. Under the facts of the Johnson case, the Court concluded appellant demonstrated harmful error in the trial court's denial of a proper challenge for cause.
2. On original submission to this Court, the State merely contended in its brief "the trial court correctly exercised its discretion to complete the trial with eleven jurors." Only on remand does the State offer a harm analysis.
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NO. 07-10-0298-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 24, 2011
______________________________
RODNEY LAMAR TANNER a/k/a ROBERT LAMAR TANNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;
NO. 1158160D; HON. GEORGE GALLAGHER, PRESIDING
______________________________
Opinion
______________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD. S.J.[1]
Appellant appeals his conviction for assault causing bodily injury to a family member, a third degree felony. He challenges the sufficiency of the evidence elevating the conviction to a felony from a misdemeanor. That is, he does not dispute that he committed misdemeanor assault. Instead, he believes the State failed to prove that he committed a prior assault involving family violence, and that was a condition precedent to his being convicted of felony assault. We agree, sustain his issue and reverse and remand the cause.
Background
Appellant was indicted for assaulting a family member, which conviction was enhanced to a felony due to a purported prior conviction for assaulting a family member. Yet, the judgment evincing the prior conviction said nothing about the assault having been made upon or having involved a family member. Nor did anyone so testify. Instead, the State tendered into evidence the purported plea agreement entered into by appellant resulting in the prior conviction. And, that document indicated that appellant had been charged with assault BI FM. Nevertheless, no one testified what was meant by BI FM. Instead, the prosecution simply argued during its closing that the initials alluded to or somehow meant family violence.
Issue Sufficiency
Although appellant has challenged both the legal and factual sufficiency of the evidence, we conduct a review only to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). So, we will simply consider whether the evidence was legally sufficient to support the conviction.
Furthermore, a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Penal Code Ann. §22.01(a)(1) (Vernon Supp. Pamp. 2010). Such an offense . . . is a felony of the third degree if the offense is committed against . . . a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if : it is shown on the trial of the offense that the defendant has been previously convicted of an offense . . . against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code. Id. §22.01(b)(2)(A).
In the case at bar, appellant contends that the State failed to prove that he had once before been convicted of family violence. This is so because the judgment of the prior conviction failed to name the assaulted person . . . or what relationship-if any-the person had to appellant. Furthermore, the initials FM were never explained during trial and the States closing argument regarding their meaning is not evidence. We agree.
Article 42.013 of the Texas Code of Criminal Procedure requires that a court shall make an affirmative finding of [the] fact [that the offense involved family violence] and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). However, the Court of Criminal Appeals found that even though [i]t is certainly the better practice for trial courts to make and enter the required family violence finding in appropriate cases since it avoids the need for extrinsic evidence and the possible complications attendant to its introduction, the absence of the finding in a judgment of conviction for a previous assault does not in itself preclude the introduction of extrinsic evidence that the previous assault was committed against a family member. State v. Eakins, 71 S.W.3d 443, 445 (Tex. Crim. App. 2002).
Examples of the types of extrinsic evidence that have been found sufficient to support a finding that the defendant was convicted of a prior crime involving family violence include 1) testimony from the victim of the prior assault, Salazar v. State, No. 01-04-1190-CR, 2005 Tex. App. Lexis 9600, at *9 (Tex. App.Houston [1st Dist.] November 17, 2005, pet. refd) (not designated for publication); Manuel v. State, No. 01-04-0282-CR, 2005 Tex. App. Lexis 3502, at *11-12 (Tex. App.Houston [1st Dist.] May 5, 2005, pet. refd) (not designated for publication), 2) the admittance of copies of the complaint, information, waiver of rights, judgment and docket sheet which all include information that the assault had been perpetrated on a family member, Vaughn v. State, No. 06-06-0040-CR, 2007 Tex. App. Lexis 3608, at *6-7 (Tex. App.Texarkana May 11, 2007, no pet.) (not designated for publication), 3) the defendants judicial confession, Ledet v. State, No. 14-04-0739-CR, 2006 Tex. App. Lexis 1556, at *5-6 (Tex. App.Houston [14th Dist.] February 28, 2006, pet. refd) (not designated for publication) (holding that appellants judicial confession constituted extrinsic evidence, and it clearly showed the conviction was for assault on a family member) and 4) testimony from a witness to the assault or from the arresting officer. See Salguero v. State, No. 0101-508-CR, 2002 Tex. App. Lexis 9104, at *4 (Tex. App.Houston [1st Dist.] December 19, 2002, pet. refd) (not designated for publication) (holding that an example of extrinsic evidence that may be introduced is testimony of a witness to the family assault); see also Collesano v. State, No. 01-01-0984-CR, 2002 Tex. App. Lexis 6559, at *6 (Tex. App.Houston [1st Dist.] August 29, 2002, pet. refd) (not designated for publication) (holding that a stipulation between the parties as to the testimony of the arresting officer was sufficient extrinsic evidence). We have none of these examples in the case before us. Nor does the prosecutions argument during closing fill the void since such comments are not evidence. Mata v. State, 1 S.W.3d 226, 228 (Tex. App.Corpus Christi 1999, no pet.). Furthermore, no explanation in the form of evidence was ever given to the jury regarding the meaning of those two letters. Therefore, we find that the initials FM on a plea document fails to satisfy the States burden to prove beyond a reasonable doubt that appellant was convicted of a prior offense involving family violence.
Accordingly, we sustain appellants issue and reverse the judgment of the trial court and remand the cause for the entry of a reformed judgment of conviction of a misdemeanor offense and for assessment of an appropriate punishment. See Crawford v. State, No. 12-05-00293-CR, 2006 Tex. App. Lexis 6520, at *11 (Tex. App.Tyler July 26, 2006, no pet.) (wherein the court reversed the trial courts judgment and remanded the case back to that court to enter a judgment reflecting a misdemeanor assault conviction and for assessment of the appropriate punishment when the State failed to prove that the prior conviction for assault involved family violence).
Brian Quinn
Chief Justice
Publish.
[1]John T. Boyd, Senior Justice, sitting by assignment.