                         NUMBERS 13-15-00430-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


ADAM ANDERSON,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

             Before Justices Benavides, Perkes and Longoria
                Memorandum Opinion by Justice Perkes
      Appellant Adam Anderson appeals his convictions for one count of continuous

family violence, a third-degree felony, see TEX. PENAL CODE ANN. 25.11 (West, Westlaw

through 2015 R.S.), and two counts of assault family violence, third-degree felonies. See

id. § 22.01(b)(2)(A) (West, Westlaw through 2015 R.S.). All counts were enhanced by

Anderson’s status as a habitual felony offender.     See id. § 12.42(d).   A jury found
appellant guilty, and the trial court imposed concurrent sentences of fifty years’

imprisonment in the Texas Department of Criminal Justice-Institutional Division. By two

issues, Anderson argues: (1) “[t]he trial court abused its discretion by disallowing the

Defense from making its motion for directed verdict once the State rested[;]” and (2) “[t]he

trial court erred by allowing extrinsic evidence to prove that [Anderson’s] 2012 conviction

involved family violence.” We affirm.

                                         I. BACKGROUND1

        Vanessa Shaw, Anderson’s wife, testified that Anderson assaulted her on October

10 and December 17, 2014. Law enforcement officers responded to emergency calls on

both occasions, and the State introduced photographs of Shaw’s injuries. The State also

introduced evidence of a prior 2012 assault conviction by way of a certified copy of the

judgment. See id. § 22.01(b)(2)(A) (enhancing assault causing bodily injury to third-

degree felony based on a prior conviction involving assault family violence).                    Shaw

testified that she was in a dating relationship with Anderson when he assaulted her in

2008, which resulted in Anderson’s 2012 conviction.                     The trial court overruled

Anderson’s objection to Shaw’s testimony regarding the prior assault conviction.

        After the State’s case-in-chief, the following exchange took place:

        [Trial Court]:                  All right. Call your next witness.

        [Prosecutor]:                   At this time, Your Honor, the State rests.

        [Trial Court]:                  What is the preference of the defense?



         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
                                                   2
       [Defense Counsel]:          At this time, Judge, we have a motion for a
                                   directed verdict.

       [Trial Court]:              Well, first of all, we don't entertain such motions
                                   until after the evidence has been concluded, so
                                   you have to make—could you determine
                                   whether or not you're going to go forward on the
                                   evidence?

       [Defense Counsel]:          Yes, Judge, I am.

       [Trial Court]:              Call your next witness—or your first witness I
                                   guess I should say.

       [Defense Counsel]:          Mr. Adam Anderson.

       Anderson denied that he assaulted Shaw, but admitted that he was in a dating

relationship with Shaw at the time of his prior assault conviction. After the close of all

evidence, Anderson’s attorney again raised a motion for directed verdict, arguing that the

State failed to prove a prior assault conviction involving family violence. See TEX. PENAL

CODE ANN. § 22.01(b)(2)(A).       The trial court denied Anderson’s motion.        The jury

returned a guilty verdict, and this appeal followed.

                                  II. DIRECTED VERDICT

       By his first issue, Anderson argues “[t]he trial court abused its discretion by

disallowing the Defense from making its motion for directed verdict once the State rested.”

Anderson maintains that by refusing to rule on his motion after the State rested, the trial

court shifted the burden of proof to the defendant and violated Anderson’s right to remain

silent. Anderson reasons that he was harmed by the trial court’s refusal because he

decided to testify “without being armed with the knowledge of the trial court’s opinion on

the strength or weakness of the evidence.”


                                             3
        To preserve error, a party must, among other things, obtain a ruling on the

complaint or object to the trial judge’s refusal to rule. See TEX. R. APP. P. 33.1(a)(2) (“As

a prerequisite to presenting a complaint for appellate review, the record must show. . .

the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly;

or (B) refused to rule on the request, objection, or motion, and the complaining party

objected to the refusal.”). Here, the trial court declined to rule on Anderson’s motion for

directed verdict until after the evidence was concluded; Anderson did not thereafter object

to the trial court’s failure to rule. Anderson therefore did not preserve error for review on

appeal. See Thierry v. State, 288 S.W.3d 80, 85 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d) (“In order to preserve error for appeal, a complaining party must not only object,

but must obtain an adverse ruling on the record or object to the trial court's refusal to rule

on the objection.”)

        Even if we were to address Anderson’s issue, we would not find error. “A ‘directed

verdict’ is commonly defined as the action taken by a trial judge in a jury trial to decide

the issues in the case without allowing them to be submitted to the jury because, as a

matter of law, the party with the burden of proof has failed to make a prima facie case for

jury consideration.”2 State v. Lewallen, 927 S.W.2d 737, 739 n. 2 (Tex. App.—Fort Worth

1996, no pet.). A motion for a directed verdict is a challenge to the legal sufficiency of

the evidence, but such a motion is not required to preserve the issue for appeal. See




        2 The Texas Code of Criminal Procedure does not explicitly address the trial court's power to grant

a directed verdict or the procedure necessary to seek such an action. Where the Code of Criminal
Procedure “fails to provide a rule of procedure in any particular state of case which may arise, the rules of
the common law shall be applied and govern.” TEX. CODE CRIM. PROC. ANN. art. 1.27 (West, Westlaw
through 2015 R.S.).
                                                     4
Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Williams v. State, 937 S.W.2d

479, 482 (Tex. Crim. App. 1996). The trial court’s inaction did not prevent Anderson from

challenging the legal sufficiency of the evidence by raising a motion for directed verdict

prior to submission of the case to the jury, or through an issue raised on appeal. Albeit

the trial court ultimately denied Anderson’s re-urged motion for directed verdict at the

close of all evidence, he has chosen not to raise a legal sufficiency challenge on appeal.

       Further, we disagree that the trial court’s failure to rule on the first motion somehow

required Anderson to testify or present evidence. Anderson alone made the decision to

testify at trial. See Johnson v. State, 283 S.W. 809, 810 (Tex. Crim. App. 1926) (finding

no error in trial court’s failure to rule on motion for a directed verdict and explaining

“[appellant] had the right to rest his case and have it then decided, and could have sought

a new trial in the court below or on appeal on the sufficiency of the testimony”); see also

Orr v. State, 61 S.W.2d 490, 493 (Tex. Crim. App. 1933) (“[The defendant] cannot compel

the trial of a case by piecemeal. When the State rests its case and the accused does

the same, then and then alone can the court be compelled to formulate and submit his

charge to the jury.”). We overrule Anderson’s first issue.

                              III. ASSAULT FAMILY VIOLENCE

       By his second issue, Anderson argues “[t]he trial court erred by allowing extrinsic

evidence to prove that [Anderson’s] conviction involved family violence.” Specifically,

Anderson maintains that the trial court should not have allowed testimony “to establish

that his 2012 conviction was actually a family violence assault.”

A.     Standard of Review


                                              5
       We review a trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011);

Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d).

We will uphold the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at 22. If the trial

court’s evidentiary ruling is reasonably supported by the record and correct on any theory

of applicable law, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref'd).

B.     Section 22.01(b)(2)

       Section 22.01(b)(2) enhances the offense of assault causing bodily injury from a

Class A misdemeanor to a third-degree felony. Agbogwe v. State, 414 S.W.3d 820, 840

(Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing TEX. PENAL CODE ANN. §

22.01(b)(2)(A)). The offense is a third-degree felony if it is committed against “a person

whose relationship to or association with the defendant is described by Section

71.0021(b) [defining dating relationship], 71.003 [defining family relationship], or 71.005

[defining household], Family Code,” and “it is shown on the trial of the offense that the

defendant has been previously convicted of an offense under this chapter . . . 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.” TEX. PENAL CODE ANN. § 22.01(b)(2)(A).

C. Analysis




                                            6
       Anderson argues the trial court abused its discretion by allowing extrinsic evidence

to prove that Anderson and Shaw were in a dating relationship at the time of his prior

conviction. Anderson contends that only the judgment of conviction should be reviewed

to determine whether the prior assault was one involving family violence.

       “Where [statutory language] is clear and unambiguous, we will give effect to its

plain meaning, unless that meaning would lead to absurd consequences that the

legislature could not have intended.” Reynolds v. State, 423 S.W.3d 377, 382 (Tex.

Crim. App. 2014) (citations omitted). Section 22.01(b)(2)(A) unambiguously provides

that the State must prove (1) the defendant has been previously convicted of assault, and

(2) the assault was committed against a member of the defendant's family or household

or someone with whom the defendant was in a dating relationship.          Mitchell v. State,

102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d) (citing TEX. PENAL CODE ANN.

§ 22.01). The statute contains no language requiring an affirmative finding regarding

family violence in the previous assault judgment. See Miller v. State, 33 S.W.3d 257,

260 (Tex. Crim. App. 2000) (“[I]t is not for the judiciary to add to or subtract from the

statute.”)   Accordingly, the State could meet its burden under section 22.01 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 or

was in a dating relationship with the defendant. See Tanner v. State, 335 S.W.3d 784,

785 (Tex. App.—Amarillo 2011, no pet.) (extrinsic evidence can be introduced to prove

prior offense involved family violence in a prosecution for felony family violence assault);

Mitchell, 102 S.W.3d at 775 (same); Goodwin v. State, 91 S.W.3d 912, 919 (Tex. App.—


                                             7
Fort Worth 2002, no pet.) (same); State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.—Austin

2002, no pet.) (same). The trial court did not abuse its discretion in allowing Shaw’s

testimony concerning her relationship to Anderson. We overrule Anderson’s second

issue.

                                       IV. CONCLUSION

         We affirm the trial court’s judgment.


                                                     GREGORY T. PERKES
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of November, 2016.




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