
NO. 07-99-0379-CR


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL C


APRIL 1, 2003


______________________________



RICARDO CHAVEZ, JR., APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;


NO. 40,485-C; HONORABLE PATRICK A. PIRTLE, JUDGE


_______________________________



Before JOHNSON, C.J., QUINN and REAVIS, JJ.

ON REMAND


	In a prior opinion, we held the trial court's decision, over appellant's objection, to
proceed with eleven jurors after the charge had been read to the jury was constitutional
error defying harmless error review.  As a result, we reversed appellant's conviction for
aggravated assault and remanded the proceeding to the trial court for a new trial.  Chavez
v. State, 34 S.W.3d 692 (Tex.App.--Amarillo 2000, pet. granted), rev'd, 91 S.W.3d 797
(Tex.Cr.App. 2002).  The Court of Criminal Appeals granted the State's petition for
discretionary review.  In its opinion reversing this Court, the Court of Criminal Appeals
began by noting: (1) the Texas Constitution requires that in a felony trial, the jury be
composed of twelve members; (2) the right to a twelve-member jury is not absolute; and,
(3) pursuant to the authority granted to it by the Texas Constitution, the Legislature
enacted article 36.29 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art.
36.29 (Vernon Supp. 2003).  The Court went on to hold "because the decision to proceed
with the trial over appellant's objection is a violation of a purely statutory right,  . . .  the
error is subject to a harm analysis under Rule of Appellate Procedure 44.2 (b)."  The Court
then reversed and remanded the case to this Court with instructions to conduct a harm
analysis.  Chavez, 91 S.W.3d at 801.  
	The existence of error is not at issue.  Therefore, because the two previous
published opinions in this case adequately reflect its factual and procedural history, we
limit our review to the events essential to a harm analysis.  The burden to demonstrate
whether appellant was harmed by trial court error does not rest on appellant or the State. 
Johnson v. State, 43 S.W.3d 1, 5 (Tex.Cr.App. 2001).  Rather, it is our responsibility to
assess harm after reviewing the record.  Id.  In conducting our review, we will disregard
any error, defect, irregularity, or variance that does not affect a substantial right of
appellant.  Tex. R. App. P. 44.2(b).  A substantial right is affected when the error has a
substantial and injurious effect or influence in determining the jury's verdict.  Johnson, 43
S.W.3d. at 4. (1)
	In a supplemental brief on remand, appellant suggests harm should be presumed
because the trial court, after reading the charge, allowed the jury to separate when
emergency personnel transported one of its members, Juror Hisel, to the hospital following
a heart attack.  Because the trial court defied the mandatory prohibition against jury
separation under article 35.23 of the Code of Criminal Procedure, appellant maintains it
was the State's burden to rebut his threshold showing of harm when he objected to
proceeding with eleven jurors.  Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon Supp.
2003).  The State failed to produce such evidence at the time of separation, therefore,
claims appellant, the error has not been proven harmless, and this Court should reverse
his conviction. 
	Initially, we note appellant did not raise on original submission of this case the
complaint he now asserts under article 35.23.  Nevertheless, we have reviewed the
authority he advances in support of that contention and agree with the State's response
that jury separation is not an issue in the harm analysis before us. (2)  The purpose behind
the prohibition against jury separation during deliberations is to prevent jury tampering. 
Hood v. State 828 S.W.2d 87, 93 (Tex.App.-Fort Worth 1992, no pet.).  In this case, after
Juror Hisel left the courthouse, the presiding juror, in response to questioning by the trial
court, announced that Juror Hisel participated in the verdict before becoming ill, and that
the guilty verdict was Juror Hisel's individual verdict.  As a result, there can be no
complaint the jury was tampered with in any way.  Furthermore, the fact the jury reached
a unanimous guilty verdict prior to Juror Hisel's disability supports our conclusion the trial
court's error in accepting the verdict from only eleven jurors did not have a substantial and
injurious effect or influence in determining that verdict.  We, therefore, hold the trial court's
error did not affect the substantial rights of appellant.  Tex. R. App. P. 44.2(b).  Appellant's
issue is overruled.
	Accordingly, the judgment is affirmed.
						Don H. Reavis
						    Justice

Publish.								
1. Under the facts of the Johnson case, the Court concluded appellant demonstrated
harmful error in the trial court's denial of a proper challenge for cause.
2. On original submission to this Court, the State merely contended in its brief "the
trial court correctly exercised its discretion to complete the trial with eleven jurors."  Only
on remand does the State offer a harm analysis.


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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 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
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
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
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.
 
                                                                        
 




[1]John T. Boyd, Senior
Justice, sitting by assignment.


