                                         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


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          John T. Boyd, Senior Justice, sitting by assignment.
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



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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



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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



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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.




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