          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-01-00658-CR
                                         NO. 03-01-00659-CR



                                 Tommy Lamont Mitchell, Appellant

                                                     v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
      NOS. 01-428-K277 & 01-578-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING



                                             OPINION


                In both causes, a jury found appellant Tommy Lamont Mitchell guilty of assaulting, and of

having previously been convicted of assaulting, a member of his family or household. Tex. Pen. Code Ann.

' 22.01(a), (b)(2) (West Supp. 2003). The jury assessed punishment, enhanced by a previous felony

conviction, at imprisonment for twenty years. By four points of error, appellant challenges the legal and

factual sufficiency of the evidence and complains of the erroneous admission of evidence at both stages of

trial. We will overrule these contentions and affirm the convictions.

                The indictments alleged that appellant assaulted his wife, Elva Mitchell, on two occasions in

2001. Appellant does not question the sufficiency of the evidence regarding these primary offenses.

Instead, he contends the State failed to prove the previous conviction alleged pursuant to section

22.01(b)(2). In that case, Travis County cause number 473860, appellant was convicted in 1997 of
assaulting Elva Robb, which the evidence shows was his wife=s name before their marriage. Elva Mitchell

testified that she and appellant were living together at the time of the previous offense. See Tex. Fam. Code

Ann. ' 71.005 (West 1992) (defining Ahousehold@).

                The judgment of conviction in cause number 473860 does not contain an affirmative finding

that the offense involved family violence. See Tex. Code Crim. Proc. Ann. art. 42.013 (West Supp. 2003).

Appellant argues that in the absence of such a finding in the judgment, there was no showing that he was

convicted of a family violence assault.

                A similar contention was presented to this Court in State v. Eakins, 71 S.W.3d 443 (Tex.

App.CAustin 2002, no pet.), another prosecution for felony family violence assault. In that case, the district

court granted the defendant=s motion to suppress all evidence that he had previously been convicted of

assaulting a family member on the ground that the judgment in the previous case did not contain an article

42.013 finding. Id. at 444. The court reasoned that the admission of extrinsic evidence that the earlier

conviction involved family violence would constitute a collateral attack on the previous judgment. Id. at

445. We found this reasoning unpersuasive and held that in a prosecution pursuant to section 22.01(b)(2),

the absence of an article 42.013 affirmative finding in a previous judgment of conviction for assault does not

preclude the introduction of extrinsic evidence that the previous assault was in fact committed against a

family member. Id.

                Appellant argues that our Eakins opinion is flawed because we did not consider the

distinction between Acommission@ and Aconviction.@ He urges that unless the judgment of conviction

contains an article 42.013 finding, the defendant has not been convicted of family violence assault. He


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asserts that our opinion in Eakins allows a defendant to be convicted of a felony pursuant to section

22.01(b)(2) upon proof that he committed a previous family violence assault, rather than upon proof that he

was previously convicted of such an offense.

                 As we pointed out in Eakins, the legislature first prescribed a harsher punishment for

defendants guilty of repeated acts of domestic assault in 1989, four years before it adopted article 42.013.

Id. at 444. Clearly, the legislature did not intend its 1989 amendment to section 22.01 to be a nullity. Thus,

it follows that an affirmative finding was not then required to prove a previous conviction for assault against a

family member. We concluded in Eakins that the adoption of article 42.013 did not preclude the State

from proving the nature of the previous assault by extrinsic evidence, as it had necessarily done previously.

Id. Had the legislature intended an article 42.013 finding to be the only acceptable method for proving a

previous conviction for assault with family violence, it would have amended section 22.01 at the same time

to so provide.

                 Section 22.01(b)(2) requires proof that the defendant Ahas been previously convicted of an

offense against a member of the defendant=s family or household under this section.@ AThis section@ means

section 22.01. Thus, the State must prove that the defendant has been previously convicted of assault, and

that the assault was committed against a member of the defendant=s family or household. The State can

meet this burden by introducing a previous judgment of conviction for assault, together with extrinsic

evidence that the victim of that assault was a member of the defendant=s family or household. We reject

appellant=s argument that proof of a previous conviction for assault against a family or household member

necessarily requires an article 42.013 finding in the earlier assault judgment.


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                 Appellant also challenges the adequacy of the extrinsic evidence regarding the previous

offense. Elva Mitchell was an obviously reluctant State=s witness, and her testimony regarding her

relationship with appellant at the time of the 1997 assault was somewhat ambiguous. Viewing her testimony

in the light most favorable to the jury=s verdict, however, it is sufficient to support a rational finding that she

was a member of appellant=s household at the time he assaulted her. See Jackson v. Virginia, 443 U.S.

307, 324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (standard of review

for legal sufficiency). In addition, a neutral review of all the evidence does not demonstrate that Elva

Mitchell=s testimony was so obviously weak or so greatly outweighed by contrary proof as to undermine

confidence in the jury=s determination. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)

(standard of review for factual sufficiency).

                 The evidence is legally and factually sufficient to sustain the jury=s finding that appellant had

previously been convicted for an assault against a member of his family or household. Points of error one

and two are overruled.

                 Appellant next contends the district court erred during the guilt phase by admitting evidence

of extraneous acts of misconductCassaults against his wife, and incidents of alcohol and cocaine

intoxicationCthat had no relevance other than to prove character conformity. See Tex. R. Evid. 404(b).

Appellant does not refer us to any place in the record where a rule 404(b) objection was made and

overruled. See id. 103(a)(1); Tex. R. App. P. 33.1(a). In fact, most of the testimony to which he refers

was admitted without objection of any kind. Point of error three presents nothing for review and is

overruled.


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                 Finally, appellant contends the court erred during the punishment phase by admitting

evidence of unadjudicated acts of misconduct that were not proved beyond a reasonable doubt. See Tex.

Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (court may admit evidence of extraneous crime or bad act that

is shown beyond reasonable doubt to have been committed by defendant). Appellant refers us to the

testimony of three police officers describing incidents involving appellant and Elva Mitchell for which

appellant was not prosecuted. With respect to each incident, appellant asked for a hearing outside the

presence of the jury Aso that [the State] can prove this offense beyond a reasonable doubt prior to

presenting it to the jury.@ The prosecutor made brief proffers of the anticipated testimony, but the court

overruled the requests for a hearing and did not expressly find that the incidents were proved beyond a

reasonable doubt before admitting the testimony. The court later charged the jury not to consider evidence

of extraneous crimes or bad acts in assessing punishment unless it was satisfied beyond a reasonable doubt

that appellant had committed those crimes or bad acts.

                 The procedure employed by the district court in these causes was substantially identical to

that approved by this Court in Mann v. State, 13 S.W.3d 89, 94 (Tex. App.CAustin 2000), aff=d, 58

S.W.3d 132 (Tex. Crim. App. 2001). Appellant argues that one of the incidents in question, during which

he was said to have pointed a gun at Elva Mitchell=s head, was not proved beyond a reasonable doubt

because she had testified at the guilt stage that she did not remember appellant ever pointing a gun at her. It

was for the jury, as trier of fact, to resolve the conflict in the testimony. The officers= testimony supports a

finding beyond a reasonable doubt that appellant committed each of the unadjudicated acts to which he

refers. Point of error four is overruled.


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               The judgments of conviction are affirmed.




                                               Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: February 27, 2003

Publish




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