Summary
rejecting argument that a family violence finding was not authorized by Article 42.013 when he was tried for burglary, a Title 7 offense, where the indictment included both burglary and assault allegations
Summary of this case from Herrera v. StateOpinion
No. 05-10-00696-CR
Opinion Filed August 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0801191-S.
Before Justices O'NEILL, FRANCIS, and MYERS.
OPINION
Appellant Walt Williams appeals his conviction for assault. After a jury found appellant guilty, the trial court assessed punishment at one year confinement, probated for two years. The trial court also made an affirmative family violence finding in the judgment. Appellant's first three points of error complain of the family violence finding. He asserts the finding must be vacated because (1) he was not "tried" for an assault offense, (2) the jury did not make the family violence determination, and (3) he was not given notice of the State's intent to seek the finding. In his fourth and final point, appellant contends the evidence is insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for burglary alleging he entered the residence of Porche Wilder without her consent and committed assault. At trial, Wilder testified that at the time of the offense, she had been dating appellant for three and a half years. Appellant was, however, married to another woman. On February 13, 2008, appellant went to Wilder's house to take her flowers for Valentine's Day. Wilder and appellant argued about their relationship and about the fact appellant had not made any move toward divorcing his wife. Wilder said appellant was also angered because Wilder was going out to dinner with her sister that evening. After appellant left, Wilder went to dinner as planned and later to a night club. She left her nine year old daughter home alone. That night, appellant called Wilder on her cell phone several times and Wilder did not answer. Wilder returned home after midnight and went to bed. She awoke at about 4 a.m., with appellant in her bedroom, screaming at her for not answering her phone. According to Wilder, appellant did not have a key to her house and did not have permission to enter at will. Appellant tried to grab her phone, but Wilder snatched it and threw it. Appellant then hit Wilder on the side of her face. Wilder scratched appellant and appellant then pinned her to the ground and "head butted" her. She testified appellant then hit her in the face repeatedly with a closed fist. Eventually, appellant got off of her and left. Wilder called 911. Officer Chad Cooley responded to Wilder's call. Cooley testified Wilder had a "busted lip" and two knots in the center of her forehead, a knot behind her ear, and some scratches on her face. The left side of her face was also swollen. When Cooley entered the residence, he saw the back french doors were wide open and looked as though they may have been forced open. The master bedroom was in disarray. Appellant's defensive theory was that he and Wilder were in a romantic relationship, he had permission to enter her house, and he only hit Wilder in self-defense. He claimed that on the evening of the offense, he and Wilder had arranged to meet at Wilder's house at 10:30 p.m. after she had dinner with her sister. When he went to her house, he rang the door bell, but there was no answer. Appellant saw Wilder's sleeping daughter through a window. He let himself in through the broken back door as he had on numerous occasions. He went to check on Wilder's daughter. She woke up and he talked to her. He did not want to leave the child alone, so he waited. He was upset and called Wilder on her cell phone several times, but there was no answer. He eventually left because he was expected at home. He promised the child he would return. He went back later that night, entering through the back door and knocking as he did so. Wilder met him at the door. Appellant testified that they got into an argument about Wilder leaving her daughter home alone. Wilder then attacked him by scratching his face. He said they wrestled and she fell and hit the back of her head. Appellant admitted head butting Wilder one time, but only to get her under control. After both sides rested and closed, the trial court charged the jury on burglary and the lesser-included offense of misdemeanor assault. The trial court also charged the jury on self-defense. The jury acquitted appellant of burglary, but found him guilty of assault. The trial court assessed punishment at one year confinement, probated for two years. The trial court also made an affirmative finding that the offense involved family violence. This appeal followed. Because appellant's fourth point of error attacks the sufficiency of the evidence, we will address it first. In his original brief, appellant complained only that the evidence was factually insufficient. As pointed out by the State in its brief, since Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the only standard we use in reviewing the sufficiency of the evidence is the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In his reply brief, appellant requests we review his complaint under Jackson. Under Jackson, we examine the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 895. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bell v. State, 326 S.W.3d 716, 720 (Tex.App.-Dallas 2010, pet. dism'd, untimely filed). As trier of fact, the jury may believe some, all, or none of any witnesses testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When the issue of self-defense is raised, the State has the burden of persuasion to disprove self-defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). However, the State is not required to present evidence affirmatively disproving the issue. Id. The State may disprove the issue by proving its case beyond a reasonable doubt. See id. Here, appellant does not dispute that Wilder's testimony, if believed, supports his conviction for assault. Instead, he asserts she was not credible. It is the jury, not the appellate court, that determines witness credibility. Wilder's testimony is sufficient to support appellant's conviction and to disprove his claim of self-defense. We resolve appellant's fourth issue against him. Appellant's remaining issues concern the trial court's affirmative finding that the offense involved family violence. Appellant first argues the family violence finding was not authorized under article 42.013 because he was not "tried" for a Title 5 offense. Article 42.013 provides, "[i]n the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence . . . the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case." Title 5 of the penal code contains "Offenses Against the Person" and includes homicide, kidnaping, sexual offenses and assaultive offenses. See, Tex. Penal Code Ann. tit. 5 (West 2011). The penal code, however, categorizes burglary as a Title 7 offense against property. See Tex. Penal Code Ann. § 30.02 (West 2011). According to appellant, he was not "tried" for a title 5 offense because the indictment alleged a burglary offense. However, while the indictment alleged burglary, it also included assault allegations. Specifically, the indictment alleged appellant "did unlawfully and knowingly enter a habitation without the effective consent of PORCHE WILDER, the owner thereof, and did then and there commit assault against PORCHE WILDER." At trial, the State presented proof appellant committed assault and at the conclusion of the evidence, appellant requested a charge on the lesser-included assault offense. The trial court properly granted appellant's request because assault was included within the proof necessary to prove the burglary offense as alleged in the indictment and there was evidence that if appellant was guilty, he was guilty only of assault. See Campbell v. State, 149 S.W.3d 149, 152-53 (Tex. Crim. App. 2004). Finally, the jury found appellant guilty of assault. We conclude appellant was "tried" for assault, a title 5 offense. We resolve the first issue against appellant. In his second issue, appellant contends he was denied his right to a trial by jury because the trial court, not the jury, made the family violence finding. The statute expressly requires the trial court, not the jury, to make the finding. See Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006). Appellant nevertheless asserts a jury finding is constitutionally required under Apprendi because the finding increases his punishment. Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increased the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Id. at 491. The "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 303 (2004). The Texas Court of Criminal Appeals has already held that a defendant is not entitled to a jury finding on family violence under Apprendi. Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006). In Butler, the defendant urged the finding effectively increased his punishment because (1) the finding would cause a subsequent family violence assault conviction to be enhanced to a felony and (2) additional probationary terms apply to a defendant convicted of an assault involving family violence. The Court of Criminal Appeals disagreed because the finding did not increase the range of punishment for the offense for which the appellant was found guilty, but could only increase the punishment for a future conviction. See id. at 303-04. The Court also concluded probation conditions did not increase punishment because they were not part of the defendant's sentence. Id. Thus, the finding had no effect on punishment. Appellant asserts Butler is not controlling because the Court did not expressly consider his argument that the finding increases his punishment because a person convicted of an offense involving family violence is deprived of his constitutional right to carry a firearm. Nothing in the trial court's judgment or probationary terms prohibit appellant from carrying a firearm. Rather, to show the finding increases his punishment, appellant relies on separate statutory provisions that make it an offense for a person convicted of an offense involving family violence to carry a firearm; specifically, section 46.04(b) of the Texas Penal Code and 18 U.S.C. § 922(g)(9). Appellant assumes, without argument or authority, that a conviction under section 46.04(b) or 922(g)(9) is dependant upon an affirmative family violence finding in the underlying judgment. However, neither section 46.04(b) or section 922(g)(9) makes reference to any such finding. See Tex. Penal Code Ann. § 46.04(b) (West 2011); U.S.C. § 922(g)(9). Thus, in a prosecution for unlawful possession of a firearm, the State can introduce extrinsic evidence that the underlying offense involved family violence. Cf. Tanner v. State, 335 S.W.3d 784, 785 (Tex. App.-Amarillo 2011, no pet.) (Tex. App.-Amarillo, no pet.) (extrinsic evidence can be introduced to prove prior offense involved family violence in a prosecution for felony family violence assault); Goodwin v. State, 91 S.W.3d 912, 919 (Tex. App.-Fort Worth 2002, no pet.) (same); State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.-Austin 2002, no pet.) (same); U.S. v. Hayes, 555 U.S. 415 (2009) (section 922(g)(9) does not require familial relationship be an element of underlying offense). In other words, appellant could be prosecuted for possessing a firearm whether or not the trial court made the finding. The family violence finding does not implicate Apprendi. Further, the Court of Criminal appeals has stated, albeit under different circumstances, that deprivation of the right to carry a firearm does not constitute punishment. See Mitchke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004); see also Alessandro v. Pennsylvania State Police, 937 A.2d 404, 412 n. 7 (Pa. 2007) (because gun restrictions imposed by 922(g) of federal gun control law are not punitive, no Apprendi due process concerns are raised). Appellant has cited this Court to no case in which any court has held otherwise. We conclude the appellant was not entitled to a jury finding on family violence. We resolve the second issue against appellant. Finally, appellant asserts the finding must be vacated because he was not given notice of the State's intent to seek the finding. Nothing in section 42.013 itself requires that the State give notice that it intends to seek a finding. To the contrary, a trial court is statutorily obligated to make the finding if the court determines the offense involved family violence. See Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006); Butler, 189 S.W.3d at 302; Hernandez v. State, 280 S.W.3d 384, 388 (Tex. App.-Amarillo 2008, no pet.). Appellant nevertheless asserts due process requires notice to be given before a family violence finding can be entered in a judgment. This issue is premised on his previous argument that the finding increases his punishment. However, as explained above, the finding does not increase punishment. See also Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.-Dallas 2004, pet. ref'd). Regardless, appellant suffered no harm from any lack of notice. Texas law defines family violence to include assault against an individual with whom a person has or has had a dating relationship. Tex. Fam. Code Ann. §§ 71.004, 71.0021 (West 2008). It was undisputed at trial and appellant was clearly aware that the parties were in a dating relationship for years at the time of the offense. Indeed, this status formed the very heart of appellant's successful defense to the burglary charge. Appellant suffered no harm from any lack of notice. See Thomas, 150 S.W.3d at 889. We resolve the third issue against appellant. We affirm the trial court's judgment.
Further, appellant makes no attempt to show his offense would even qualify as an offense involving family violence under the Federal statute. See, e.g., U.S.C. § 921(33)(A) (defining "misdemeanor crime of domestic violence" for purposes of 922(g)).
To the extent appellant complains that the finding may make it unnecessary for the State to prove the offense involved family violence beyond a reasonable doubt in a subsequent trial, that issue is not ripe for our review.