Manning v. State

• Decision Date: 24 July 2003
• Docket Number: No. 14-02-00892-CR.,14-02-00892-CR.
• Citation: 112 S.W.3d 740
• Parties: Charles Edward MANNING, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

112 S.W.3d 740

Charles Edward MANNING, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 14-02-00892-CR.

Court of Appeals of Texas, Houston (14th Dist.).

July 24, 2003.

Michael P. Fosher, Houston, for appellant.

Carol M. Cameron, Houston, for appellee.

Panel consists of Chief Justice BRISTER and Justices FOWLER and KEM THOMPSON FROST.

OPINION

KEM THOMPSON FROST, Justice.

Appellant Charles Edward Manning, Jr. appeals his felony assault conviction, arguing: (1) the trial court erred by denying appellant's motion to quash the indictment; and (2)-(3) the evidence is legally and factually insufficient to prove he assaulted a household member. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and the complainant, Mary Pearl Vallery, were involved in an "off and on" romantic relationship for at least twelve years before his arrest for the present offense. The record shows appellant lived with Vallery whenever they were romantically involved. According to trial testimony, a few days before Thanksgiving of 2001, appellant severely beat Vallery because he believed she was involved with another man.

Appellant was arrested and charged with assault of a household member. In the indictment, the State also alleged that appellant was convicted in 1996 of an assault committed against a household member, to enhance the present assault from a misdemeanor to a third-degree felony under section 22.01(b)(2) of the Penal Code. See Tex. Pen.Code § 22.01(b)(2). Uncontroverted trial testimony showed appellant committed the 1996 assault against Vallery.

The jury found appellant guilty and the trial court sentenced him to fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division.

II. ISSUES PRESENTED

Appellant presents the following issues for review:

(1) Did the trial court erroneously deny appellant's motion to quash the indictment because the 1996 conviction used for enhancement occurred before the effective date of the enhancement statute and because the judgment supporting the 1996 conviction does not include an affirmative finding of family violence?

(2) Is the evidence legally sufficient to prove appellant and the complainant were members of the same household at the time of the instant offense, and at the time of the 1996 assault?

(3) Is the evidence factually sufficient to prove appellant and the complainant were members of the same household at the time of the instant offense, and at the time of the 1996 assault?

III. ANALYSIS AND DISCUSSION

A. Motion to Quash Indictment

Appellant argues the trial court lacked jurisdiction and should have granted his motion to quash the indictment for two reasons: (1) because the 1996 conviction used to enhance under section 22.01(b)(2) of the Penal Code occurred before the September 1, 1999, effective date of the enhancement statute; and (2) because the judgment supporting the 1996 conviction lacks an affirmative finding of family violence. We review a trial court's ruling on a motion to quash an indictment for an abuse of discretion. State v. Goldsberry, 14 S.W.3d 770, 772 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).

In 1999, the Legislature amended section 22.01(b)(2) of the Penal Code to provide that an assault is a third-degree felony if it is committed against a member of the defendant's family or household, and "it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant's family or household under this section." See Act of June 18, 1999, 76th Leg., R.S., ch. 1158, § 2, 1999 Tex. Gen. Laws 4063. The statute also included a clause making its application prospective:

The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1999] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

Id. at 4064. According to appellant, this clause prohibits the State from using a conviction that predates September 1, 1999, for enhancement under section 22.01(b)(2). Appellant essentially argues the date of the previous conviction is an element of the current offense and that the enhancement conviction therefore must have occurred after September 1, 1999, to enhance assault to a third-degree felony under section 22.01(b)(2).

Contrary to the plain language of section 22.01(b)(2), appellant's position makes the date of the prior conviction an element of the current offense, when the State is only required to prove that at the time of the current offense the defendant had the status of having been previously convicted of an assault committed against a family or household member. See Cannady v. State, 11 S.W.3d 205, 208 (Tex.Crim.App. 2000) (addressing same argument and holding defendant's status of serving a life sentence at the time of present offense, and not date on which he committed crime for which he was serving life sentence, is element of statute making it capital murder to kill another person while serving a life sentence); State v. Mason, 980 S.W.2d 635, 639 (Tex.Crim.App.1998) (plurality op.) (holding same under another section of Penal Code, but court divided on whether extra-textual sources necessary to reach conclusion); Moore v. State, 38 S.W.3d 232, 235-36 (Tex.App.-Texarkana 2001, pet. ref'd) (addressing same argument and holding same). Accordingly, this court rejects appellant's argument that the trial court should have set aside the indictment because the State used a 1996 conviction to enhance under section 22.01(b)(2) of the Penal Code.

Appellant further argues the trial court should have quashed the indictment because the 1996 assault conviction does not affirmatively show on the face of the judgment or the underlying indictment that the complainant in that case was a family or household member. Appellant directs this court's attention to the failure of the trial court to mark the "family violence" box on the 1996 judgment even though article 42.013 of the Code of Criminal Procedure was effective at that time and provides:

In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.01, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.

TEX.CODE CRIM. PROC. art. 42.013.

When the language of a statute is unambiguous, we must give effect to the plain meaning of the words unless doing so would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). The plain language of article 42.013 does not prohibit use of extrinsic evidence to prove that a previous assault was committed against a family or household member in a subsequent proceeding when the convicting court failed to make an affirmative finding of family violence. Goodwin v. State, 91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.); see also State v. Cagle, 77 S.W.3d 344, 348 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding notation on prior judgment that family violence was "not applicable or not available" did not amount to a determination that prior assault was not committed against household or family member); Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2003, no pet. h.) (holding extrinsic evidence may be used to prove prior assault committed against household member).

Because a conviction that predates the effective date of section 22.01(b)(2) of the Penal Code can be used to enhance under that section, and because article 42.013 of the Code of Criminal Procedure does not prohibit use of extrinsic evidence to prove family violence in a subsequent proceeding, we conclude the trial court did not abuse its discretion when it denied appellant's motion to quash the indictment.

B. Legal Sufficiency

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim. App.1991). The jury, as the trier of fact, "is the sole judge of the credibility of witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex.Crim.App.2003).

An assault is a third-degree felony, instead of a Class A misdemeanor, if it is committed against "a member of the defendant's family or household" and it is shown on the trial of the offense that the defendant has been previously convicted of an assault that was committed against a member of the defendant's family or household. Tex. Pen.Code § 22.01(b)(2). "Household" has the meaning assigned by the Family Code and therefore includes persons living together in the same dwelling, regardless of whether they are related to one another. Tex. Pen.Code § 22.01(e)(2); Tex. Fam.Code § 71.005.

The State is relieved of its burden to prove a prior conviction alleged for enhancement when the defendant pleads true or guilty to the enhancement paragraph. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981); Martin v. State, 795 S.W.2d 289, 292 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (holding same). Accordingly, a defendant who pleads true to an enhancement paragraph may not challenge the sufficiency of the evidence to prove allegations contained in the enhancement paragraph. Harvey, 611 S.W.2d at 111; Martin, 795...