        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00687-CR



                               Roger Wallace Henderson, Appellant

                                                   v.

                                    The State of Texas, Appellee




          FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY
          NO. 04-3707-3, HONORABLE DON HIGGINBOTHAM, JUDGE PRESIDING



                                            OPINION


                A jury found appellant Roger Wallace Henderson guilty of assault and assessed

punishment at 150 days’ incarceration. See Tex. Pen. Code Ann. § 22.01(a)(1) (West Supp. 2005).

The issue presented in this appeal is whether the trial court violated appellant’s Sixth Amendment

rights by entering an affirmative finding that “the said Defendant committed family violence in the

course of committing the offense charged.”1 We hold that it did not and affirm the conviction.

                The court’s finding was entered in the judgment pursuant to code of criminal

procedure article 42.013:



    1
      In two subsidiary issues, appellant asserts that his contention was preserved for appeal but if
it was not, his trial counsel was ineffective for having failed to do so. As we will explain later in this
opinion, the alleged error was preserved. Thus, there is no basis for the ineffectiveness claim.
               In the trial of an offense under Title 5, Penal Code [offenses against the
       person], if the court determines that the offense involved family violence, as defined
       by Section 71.004, 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. Ann. art. 42.013 (West Supp. 2005). Although appellant does not deny that

the person he assaulted was shown to be a member of his family or household, he contends that the

entry of the court’s family violence finding violated his Sixth Amendment right to a jury finding,

based on proof beyond a reasonable doubt, of “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict.” United States v. Booker, 543 U.S. 220, 244 (2005) (citing Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000)); see also Blakely v. Washington, 542 U.S. 296, 301 (2004).2

               The State argues that appellant did not preserve this contention for appeal because

he did not object to the court’s charge or request a jury finding on family violence. We disagree.

Appellant was on trial for simple misdemeanor bodily injury assault. See Tex. Pen. Code Ann.

§ 22.01(a)(1). The complainant’s status as a member of appellant’s family or household was not an

element of the offense. Before sentence was imposed, appellant objected to the court’s stated

intention to make the article 42.013 affirmative finding on the ground that there had been no jury

finding. The alleged error was preserved.




   2
     The information in this cause alleged that the complainant was a member of appellant’s family
or household, apparently to give appellant notice of the State’s intention to seek the affirmative
finding. The court’s jury charge at the guilt/innocence phase did not incorporate this allegation or
require a jury finding regarding family violence in order to convict. Although the jury’s verdict
found appellant guilty “as charged in the information,” the State does not contend that the jury’s
verdict constituted an affirmative finding.

                                                 2
               We agree with our sister courts in Fort Worth and Dallas that no Sixth Amendment

violation is shown. See Butler v. State, 162 S.W.3d 727, 732 (Tex. App.—Fort Worth 2005, pet.

granted); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.—Dallas 2004, pet. ref’d). The issue in

Booker, Blakely, and Apprendi was the trial court’s authority to increase the defendant’s punishment

above the presumptive sentencing range for the offense proved at trial. The family violence finding

at issue here had no effect on appellant’s punishment in this case, and thus Booker, Blakely, and

Apprendi do not apply. See Thomas, 150 S.W.3d at 889. The family violence finding may become

relevant to sentence if appellant is ever prosecuted for a second family violence assault pursuant to

section 22.01(b)(2). See Tex. Pen. Code Ann. § 22.01(b)(2) (West Supp. 2005). We decline to issue

an advisory opinion as to whether this hypothetical future use of the court’s finding would violate

the Sixth Amendment. See Butler, 162 S.W.3d at 732.

               We briefly address two matters raised by Justice Dauphinot in her Butler dissent.

First, the analogy between the family violence finding at issue here and the deadly weapon finding

under article 42.12, section 3g is inapt. See Butler, 162 S.W.3d at 733-34; Tex. Code Crim. Proc.

Ann. art. 42.12, § 3g(a)(2) (West Supp. 2005). The holding in Polk that the deadly weapon finding

must be made by the trier of fact was not based on the Sixth Amendment but on the language of the

statute. See Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985). Second, appellant was not

placed on community supervision, and thus the conditions of supervision referred to by Justice

Dauphinot are not implicated in this case. See Butler, 162 S.W.3d at 737; Tex. Code Crim. Proc.

Ann. art. 42.12, §§ 11(h), 14(c) (West Supp. 2005).




                                                 3
              The judgment of conviction is affirmed.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: April 14, 2006

Publish




                                               4
