
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00210-CR


State of Texas, Appellant

v.


Jesse Lee Eakins, Appellee





FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-01-0078-S, HONORABLE CURT STEIB, JUDGE PRESIDING





	Assault with bodily injury, ordinarily a class A misdemeanor, is a third degree felony
if the offense is committed against "a member of the defendant's family or household, if 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."  Tex. Pen. Code Ann.
§ 22.01(b)(2) (West Supp. 2002).  The question presented in this appeal is how the State may prove,
in a prosecution for assaulting a family member, that the defendant has previously been convicted
of assaulting a family member and is therefore guilty of a felony pursuant to section 22.01(b)(2). 
The answer to this question requires us to construe code of criminal procedure article 42.013, which
reads: 

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. Ann. art. 42.013 (West Supp. 2002).  
Appellee Jesse Lee Eakins is under indictment for assault with bodily injury.  The
indictment alleges that the person injured is a member of Eakins's family and that Eakins was
previously convicted of assaulting a family member in Tom Green County cause number 97-02089L2.  Eakins moved to suppress all evidence regarding his conviction in cause number 97-02089L2 at the guilt/innocence stage of trial because the judgment of conviction in that cause does
not contain an article 42.013 family violence finding. (1)  At a hearing on the motion, the State
conceded the absence of the affirmative finding but urged that it may prove that the victim of the
earlier assault was a family member by extrinsic evidence; by calling the victim to testify, for
example.  
The district court granted Eakins's motion to suppress.  The court ruled that the State
could not offer, at the guilt/innocence stage, any extrinsic evidence showing that the victim in cause
number 97-02089L2 was a member of Eakins's family. (2)  In effect, the court concluded that to prove
the felony offense under section 22.01(b)(2), the only permissible evidence that a previous assault
conviction involved family violence is an article 42.013 affirmative finding in the judgment.  The
State appeals.  See id. art. 44.01(a)(5).  We will reverse the district court's order.
The legislature first prescribed a harsher punishment for defendants guilty of repeated
acts of domestic assault in 1989, when it amended section 22.01 to add language similar to that now
found in subsection (2)(b).  Act of May 27, 1989, 71st Leg., R.S., ch. 739, §§ 1 & 2, 1989 Tex. Gen.
Laws 3304, 3305 (Tex. Pen. Code Ann. § 22.01(c)(4), (d)(2), since amended). Article 42.013 was
adopted four years later.  Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 9.01, 1993 Tex. Gen. Laws
3586, 3764.  Article 42.013 was obviously intended to simplify the prosecution of subsequent family
assault cases by making it unnecessary to relitigate the details of the previous assault.  Instead, the
State may rely on the affirmative finding in the prior judgment to prove that the victim of the
defendant's previous assault was a family member.  But does article 42.013 preclude the State
from proving the nature of the previous assault in some other manner, as it had necessarily done
previously?
We apply the literal language of a statute unless that language is ambiguous or would
lead to an absurd result the legislature could not possibly have intended.  Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991).  There is nothing in the language of either statute that requires an
article 42.013 affirmative finding in the previous assault judgment in order to invoke section
22.01(b)(2).  There is no indication that the legislature, by adopting article 42.013, intended to
disallow the continued use of extrinsic evidence of prior family violence in prosecutions pursuant
to section 22.01(b)(2).  Considering that the apparent purpose of article 42.013 was to facilitate
prosecutions pursuant to section 22.01(b)(2), it is more likely that the legislature intended article
42.013 to provide an additional method, not the only method, for proving a previous conviction for
family assault.
The district court reasoned that the admission of extrinsic evidence would constitute
a collateral attack on the previous assault judgment, an argument Eakins reurges in his brief to this
Court. (3)  But the State does not seek to attack the validity of the judgment in cause number 97-02089L2 or to offer proof contrary to any recital contained in that judgment.  Rather, the State
merely proposes to prove a fact - that the victim of the previous assault was a member of Eakins's
family - that is extrinsic to the judgment as recorded.
Article 42.013 requires an affirmative finding in the judgment whenever the trial court
determines that family violence was involved in a Title 5 offense.  See Curry v. State, 720 S.W.2d
261, 263 (Tex. App.--Austin 1986, pet. ref'd) (construing Tex. Code Crim. Proc. Ann. art. 42.12,
§ 3g(a)(2)).  But if a judgment is silent regarding family violence, this means only that no
determination was made and entered by the court.  The failure of the trial court in cause number 97-02089L2 to affirmatively find that family violence was involved in that offense does not necessarily
mean that the court considered the issue and determined that family violence was not involved.
Eakins further argues that, in some prosecutions pursuant to section 22.01(b)(2), the
introduction of extrinsic evidence that the victim of the previous assault was a member of the
defendant's family might violate the terms of a plea bargain in the previous case.  We first note that
there is no evidence of a plea bargain in cause number 97-02089L2 and Eakins does not contend that
there was.  Whether the terms of a plea bargain agreement in a family assault prosecution might
preclude the use of that conviction as evidence in a subsequent prosecution pursuant to section
22.01(b)(2) is not the question before us. (4)  That the State might bargain away its right to offer
extrinsic evidence of a previous family assault in a particular case is no reason to construe article
42.013 so as to exclude extrinsic evidence of previous family assaults in every prosecution pursuant
to section 22.01(b)(2).
It is certainly the better practice for trial courts to make and enter the required family
violence finding in appropriate cases.  Compliance with article 42.013 avoids the need for extrinsic
evidence and the possible complications attendant to its introduction.  We hold, however, that in a
prosecution pursuant to section 22.01(b)(2), the absence of an article 42.013 affirmative 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.  The district
court's suppression order is reversed and the cause is remanded for further proceedings.


				__________________________________________
				Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Puryear
Reversed and Remanded
Filed:   January 31, 2002
Publish
1.        The judgment in cause number 97-02089L2 recites that Eakins was convicted in 1997 of
"assault causes bodily injury - DV."  Although the designation "DV" suggests that the assault
involved domestic violence, the judgment does not contain a separate and specific affirmative
finding to that effect.  See Ex parte Hughes, 739 S.W.2d 869, 871 (Tex. Crim. App. 1987)
(construing what is now Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2002)).
2.        The court ruled, however, that the State would be permitted to introduce the extrinsic
evidence at the punishment stage.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp.
2002).  
3.        This reasoning is inconsistent with the court's ruling that the State would be permitted to offer
the extrinsic evidence at the punishment stage.
4.        For that reason, we express no opinion as to whether an agreement not to seek a family
violence finding in a prosecution for assaulting a family member constitutes an agreement not to
prosecute the defendant pursuant to section 22.01(b)(2) should he later commit another assault
against a family member. 

