No. 01-04-00282-CR
Opinion Issued May 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 956031.
Panel consists of Justices TAFT, KEYES, and HANKS.
TIM TAFT, Justice.
A jury found appellant, Keith Andre Manuel, guilty of felony assault upon a family member and assessed his punishment at four years in prison. See TEX. PEN. CODE ANN. § 22.01(a)(1)(2), (b)(2) (Vernon Supp. 2004-2005). We determine (1) whether the trial court erred in proceeding to trial on a felony case and (2) whether the evidence was legally and factually sufficient to support appellant's conviction. We affirm.
Background
On July 18, 2003, the complainant, Deborah Finkelstein, took appellant to Cabo's, a restaurant and bar. Some time after the complainant had dropped appellant off at the restaurant, appellant telephoned her to ask that she come and pick him up. Initially, the complainant did not answer appellant's telephone calls. However, finally, she answered and reluctantly agreed to pick up appellant. When the complainant arrived at Cabo's, she picked up appellant, who was extremely irritated with her because she had not answered her phone and come to get him right away. The complainant wanted to go home, but appellant grabbed the steering wheel of the vehicle and pointed it in another direction because he wanted to go somewhere else. At one point, the complainant became frightened and pulled over to the side of the highway and got out of the vehicle. However, appellant dragged the complainant back to the car and threw her onto the passenger seat. Appellant then began driving. The complainant attempted to placate appellant, but appellant told the complainant that he was going to take her where no one would find her. Appellant repeatedly slapped and punched the complainant in her head, throat, and upper body. Appellant then exited the highway, stopped the vehicle, pulled the complainant out of the vehicle, and threw her to the ground. Appellant was yelling at the complainant, who was on the ground, when police officers arrived and arrested him. Reading of the Indictment
In his first and second points of error, appellant contends that because the State failed to arraign appellant on the second paragraph of the indictment alleging a prior assault upon a family member, the trial court erred in allowing him to be tried and convicted by the jury of a felony offense. The reading of the indictment is mandatory. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon Supp. 2004-2005); Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985). The rationale for the rule is to inform the accused of the charges against him and to inform the jury of the exact terms of the particular charge against the accused. Warren, 693 S.W.2d at 415. Until the indictment is read and a plea is entered, the issue is not joined between the State and the accused before the jury. Peltier v. State, 626 S.W.2d 30, 31 (Tex.Crim.App. 1981); Richardson v. State, 763 S.W.2d 594, 594-95 (Tex.App.-Corpus Christi 1988, no writ). Error that results from not reading the indictment and not entering a plea can be cured at trial. Warren, 693 S.W.2d at 416. The correct procedure to be followed after a tardy reading of the indictment and the entering of a plea has been long established: either (1) upon discovery of the error, the indictment is read to the jury, the accused enters a plea, and the State reintroduces the evidence or (2) the parties may stipulate to the evidence. Id.; Welch v. State, 645 S.W.2d 284, 285 (Tex.Crim.App. 1983); Trammell v. State, 445 S.W.2d 190, 193-94 (Tex.Crim.App. 1969). When either procedure is used, the issue is joined, and a trial on the issue may be held. A set of facts similar to those in the present case were present in Castillo v. State, 530 S.W.2d 952 (Tex.Crim.App. 1976). In Castillo, after the State's chief witness had testified, the trial court learned that the indictment had not been read and that the accused had not entered his plea. The trial court permitted the State to read the indictment, to which the accused entered his plea. Defense counsel objected to the reading of the indictment on the ground that it was being read to the jury after the jury had been impaneled and had heard evidence. Defense counsel also moved for a mistrial, which the trial court overruled. The defendant was found guilty and appealed. The Court of Criminal Appeals stated that after the indictment was read and the accused pleaded thereto, "[i]t was incumbent on the State to re-introduce the testimony . . . unless the defendant stipulated to the evidence. In the case before us there was no such stipulation by the appellant." Castillo, 530 S.W.2d at 954. The Court further stated, "However, in the absence of an objection directing the court to the correct procedure, we hold that the error was not preserved, under the circumstances here presented." Id. In the present case, the State arraigned appellant on the first paragraph of the indictment at the beginning of trial. Appellant entered a plea of not guilty. However, the State failed to read the second paragraph of the indictment, a jurisdictional paragraph alleging that appellant had previously been convicted of assault against a family member. At the end of the trial, after the State had rested, appellant objected to the proposed jury charge on the basis that he had never been arraigned on the second paragraph of the indictment. Appellant contended that the State had thus abandoned the allegations in the second paragraph. The trial court asked appellant, "What's your remedy?" Appellant responded that the jury should be charged only on the misdemeanor crime of assault. The trial court overruled appellant's objection. Although defense counsel objected to the State's not having read the second paragraph of the indictment, he did not direct the trial court to the correct procedure to be followed after a tardy reading of the indictment. See Warren, 693 S.W.2d at 416. Defense counsel did not ask that the indictment be read, that appellant be able to enter a plea, and that the evidence introduced before the plea be reintroduced or stipulated to by appellant. In fact, when the trial court asked defense counsel if he wished for appellant to be arraigned on the second paragraph at that time, defense counsel responded, "Do I want — certainly not Your Honor. I'm not asking that he be arraigned. I'm telling The Court that in my opinion it's too late to arraign him. . . ." We conclude that the error was not preserved in the absence of an objection directing the court to the correct procedure. Castillo, 530 S.W.2d at 954; see also Limon v. State, 838 S.W.2d 767 (Tex.App.-Corpus Christi 1992, writ ref'd). We overrule appellant's first and second points of error. Legal and Factual Sufficiency
In his third through sixth points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction because the State failed to prove that the complainant and appellant were part of the same household and that appellant's prior conviction for assault had been against a family member. In a legal-sufficiency review, we view 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 crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In reviewing a factual-sufficiency challenge, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. The factual-sufficiency standard "acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). The appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The fact finder is entitled to believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). To prove the felony offense of assault on a family member, the State must show that a person intentionally, knowingly, or recklessly caused bodily injury to another family member and that the defendant had previously been convicted of assault against a member of the defendant's family or household. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2). Under this section, "household" means a unit comprised of persons living together in the same dwelling, without regard to whether they are related to each other. See TEX. PENAL CODE ANN. § 22.01(e); see also Tex. Fam. Code Ann. § 71.005 (Vernon 2002). A. Assault Upon Member of Household
In his third and fourth points of error, appellant contends that the evidence is legally and factually insufficient to show that he and the complainant were members of the same household at the time of the assault. Because appellant's name did not appear on the complainant's lease and appellant's wife and mother testified that appellant lived with his mother, appellant contends that the evidence was insufficient to show that he and the complainant were members of the same household. Appellant asserts that the testimony of his wife and mother conflicts with the complainant's testimony that she and appellant lived together in her townhouse. The complainant testified that appellant resided with her in her townhouse. She stated that appellant brought all of his possessions into her home and lived there and that he slept, woke, ate, and returned home to her townhouse every evening. The complainant stated that appellant was not a signor on her lease because, when appellant moved in, her lease was not up for renewal and it remained solely in her name. Officer Jacob Rivera of the Houston Police Department corroborated the complainant's testimony that appellant lived with the complainant in her townhome. On July 31, 2002, Officer Rivera was called to the complainant's townhome and encountered appellant there. While conversing with Officer Rivera, appellant indicated that he had resided at the residence for approximately three months with the complainant. Appellant told Officer Rivera that he had a wife, but that he had left her and moved in with the complainant. Although appellant's wife and mother testified that appellant lived with his mother at the time of the assault, the fact finder, as the sole judge of the weight and credibility of the witness testimony, could disbelieve any or all of the testimony proffered and weigh the evidence in the manner that it chose. See Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no writ). The above facts are sufficient to show that appellant and the complainant were members of the same household. We hold that the evidence is legally and factually sufficient to show that appellant and the complainant were family members. See TEX. PENAL CODE ANN. § 22.01. We overrule appellant's third and fourth points of error. B. Prior Conviction for Assault
In his fifth and sixth points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for felony assault. He contends that the State failed to prove that his prior conviction for assault was against a family member because the judgment did not contain an affirmative finding on family violence as required by Code of Criminal Procedure article 42.013. TEX. CODE CRIM. PROC. art. 42.013 (Vernon Supp. 2004-2005). Contrary to appellant's assertions, the law does not require that an enhancement alleging a conviction for assaulting a family member be proved solely by a judgment that contains an affirmative finding of family violence. See State v. Eakins, 71 S.W.3d 443, 445 (Tex.App.-Austin 2002, no pet.). Such an enhancement can be proved, as it was here, through extrinsic evidence, such as testimony of a witness to the family assault. See id. At trial, the State presented extrinsic evidence to prove that appellant's prior conviction resulted from a family assault. Appellant's wife testified that appellant had been convicted of assaulting her and that they were married, living together, and had children at the time of the assault. Even though the judgment for the enhancement conviction did not include an affirmative finding of family violence, the State properly used extrinsic evidence to prove the prior conviction of family assault. See id. We hold that the evidence was legally and factually sufficient to prove that appellant's prior conviction for assault was upon a family member. We overrule appellant's fifth and sixth points of error. Conclusion
We affirm the judgment of the trial court.