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 State’s 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. ref’d) (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. ref’d) (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 defendant’s 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. ref’d) (not designated for publication) (holding that appellant’s 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. ref’d) (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. ref’d) (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 prosecution’s 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 State’s burden to prove beyond a reasonable doubt that appellant was convicted of a prior offense involving family violence.
Accordingly, we sustain appellant’s 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 court’s 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.
2.0pt'>
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 249TH DISTRICT COURT OF JOHNSON COUNTY;
NO. F42536; HONORABLE D. WAYNE BRIDEWELL, PRESIDING
Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
We have before us a rather novel question posed by Donald Earl Collins. After the State succeeded in having his community supervision or probation revoked, he asked the trial court to grant him credit on his ten-year prison sentence equal to the time he sat in prison while serving a different sentence. The trial court granted him some relief but not all that he sought. We affirm the judgment.
Background
The circumstances before us involve two distinct driving while intoxicated offenses for which appellant was prosecuted simultaneously. One resulted in his conviction and imprisonment (Conviction A). The other resulted in his conviction and probation (Conviction B). The two sentences were then ordered to run concurrently. As a condition of appellant’s probation, he was required to particate in a substance abuse program. While serving his prison sentence for Conviction A, the State sent appellant to the program in question. He refused to participate in it. Instead, he, as opposed to the State, moved to have his probation revoked. Nothing transpired with regard to his motion, though. Several months later, the State filed its own motion, which was heard by the trial court. That resulted in the revocation of appellant’s probation and sentence to prison for Conviction B. Before sentencing, though, appellant asked the court to credit him with time spent serving Conviction A. The trial court refused that as well as his request for credit for the period beginning from the time he moved to revoke his own probation. The trial court did grant him credit, though, from the time the State filed its motion.
Jail Time Credit
Simply put, appellant wants his Conviction B sentence to be credited for time spent serving his Conviction A sentence. At most, the period contemplated should begin either at the time he began serving his Conviction A sentence or at the time he moved to revoke his probation. Because both issues before us are premised on that contention, we consider them together.
It is true that a defendant normally is entitled to credit for the time he spends confined while awaiting the adjudication of a motion to revoke. Ex parte Bates, 978 S.W.2d 575, 577-78 (Tex. Crim. App. 1998). Yet, seldom, if ever, is it the defendant that seeks to have his probation terminated. The desire to end probation usually is that of the State. But, whether it is the State or the defendant that moves for revocation is unimportant to our resolution of this appeal. This is so because a condition precedent to the validity of either argument is non-existent, that condition being compliance with art. 42.03 §2(a) of the Texas Code of Criminal Procedure.
Through art. 42.03 §2(a), the legislature directed that in all criminal cases, “the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent . . . in jail for the case, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court . . . .” Tex. Code Crim. Proc. Ann. art. 42.03 §2(a)(1) (Vernon Supp. 2009) (emphasis added). As can be seen, the plain wording of the provision mandates that the defendant receive credit for the time spent jailed before his conviction. But, of import is the phrase “for the case” appearing in the statute. From its location in the edict, the credit at issue relates not just to any time the defendant spent incarcerated before conviction. Rather, it is the time one is incarcerated for the case in which he is ultimately tried and convicted. See Martinez v. State, No. 13-04-0085-CR, 2005 Tex. App. Lexis 6000 at *8 (Tex. App.– Corpus Christi July 28, 2005, no pet.) (not designated for publication) (stating that the trial court must award credit for time served in the same offense and not time spent serving a sentence in an independent cause).
According to the record before us, appellant was not jailed for the crime underlying Conviction B prior to the time the trial court revoked his probation. Indeed, his plea bargain excluded that since he was granted probation; that is, he was not supposed to go to jail for having committed that offense. Instead, his imprisonment arose from the sentence levied in response to Conviction A. Consequently, the circumstances at issue do not fit those contemplated by art. 42.03 §2(a)(1). And, because of that, it matters not who filed the motion to revoke.[1]
Appellant’s issues are overruled, and the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Publish.
[1]As for those complaints founded upon due process, they were not preserved since they were not made below. See Gonzalez v. State, 301 S.W.3d 393, 400-01 (Tex. App.–El Paso 2009, no pet.) (requiring an appellant to preserve his due process complaints for appeal by asserting them at trial).