No. 14-02-00716-CR
Opinion filed May 22, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from 361st District Court, Brazos County, Texas, Trial Court Cause No. 28,625-361
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE, Justice.
Appellant Jerry Walker appeals his conviction for assault, which was enhanced by a previous conviction for assault of a family member. In his sole issue, appellant contends his conviction cannot be enhanced because there is no evidence the victim of the previous assault was a family member. We affirm.
Facts
A jury found appellant guilty of assault against a household member, normally a Class A misdemeanor. This offense, however, is a third degree felony because appellant's previous conviction was for assault of his son's mother, Shari Shalow, whom he struck in the face with his hands. He claims that there was no affirmative finding of family violence in the prior conviction nor was there evidence in this case that Ms. Shalow was a family member. Legal sufficiency
Appellant contends there is no evidence his prior conviction involved family violence because there was no affirmative finding of family violence. He also contends the State presented no extrinsic evidence to prove his prior conviction involved family violence. In reviewing legal sufficiency, we review the evidence in the light most favorable to the prosecution to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App. 1996). We apply the same standard of review to jury findings at the punishment phase of the trial relating to enhancement paragraphs. See Simms v. State, 848 S.W.2d 754, 756 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). If the victim is a family member and the defendant has a prior conviction for assaulting a family or household member, then the offense is a third degree felony. Id. § 22.01(b)(2). "Family" includes individuals related by consanguinity or affinity; 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 they reside together. Tex. Fam. Code Ann. § 71.003 (Vernon Supp. 2002). As required by article 42.013 of the Texas Code of Criminal Procedure, appellant asserts that without an affirmative finding, the jury should not have considered the prior conviction for enhancement. However, this argument has been previously rejected. State v. Eakins, 71 S.W.3d 443 (Tex.App.-Austin 2002, no pet.). Under a section 22.01(b)(2) prosecution, the absence of an article 42.013 affirmative finding does not preclude a later determination that the prior conviction was for assault of a family member. Id. at 444. Further, the evidence at trial included the testimony of Doritha Toliver, who once witnessed appellant chasing Ms. Shalow. She testified that appellant and Ms. Shalow "got into it" frequently. The State submitted the misdemeanor information from the prior conviction, which reflected an offense date of May 3, 1999. The State also presented appellant's fingerprints from the prior assault and the testimony of a fingerprint expert. See Garner v. State, 864 S.W.2d 92, 97 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (providing methodology to prove a prior conviction). Additionally, the evidence included the birth certificate of appellant and Ms. Shalow's son (named Jerry Walker, Jr.), who was born one month before the prior assault. Finally, appellant testified that Ms. Shalow was the mother of his son, that he assaulted her, and that he pleaded guilty to the charge. Viewing all the testimony in the light most favorable to the jury's verdict, we find legally sufficient evidence to support a finding that appellant committed prior family violence against Ms. Shalow. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). Therefore, we overrule appellant's sole issue. Accordingly, the judgment of the trial court is affirmed.