Rodney Lamar Tanner A/K/A Robert Lamar Tanner v. State ( 2011 )


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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
    1
    John T. Boyd, Senior Justice, sitting by assignment.
    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
    2
    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
    3
    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
    4
    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.
    5
    

Document Info

Docket Number: 07-10-00298-CR

Filed Date: 2/24/2011

Precedential Status: Precedential

Modified Date: 10/16/2015