Aflirrned; Opinion Issued October 10, 2012




                                                In The
                                 (itiiirt nf ippeaIs
                          Fifth 1istrirt uf xwi at allas
                                        No. 05-i 1-00839-CR


                                WILLIAM HUGG INS, Appellant

                                                  V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
                             Trial Court Cause No. F10-51870-l


                               MEMORANDUM OPINION
                             Before Justices Bridges, Francis, and Lang
                                    Opinion By Justice Francis

        William Huggins appeals his conviction for felony assault family violence. After the jury

found him guilty, the trial court assessed punishment at ten years in prison. In three issues, appellant

claims the evidence is insufficient to prove he was previously convicted of a family violence offense

and the trial court erred in charging the jury. We affirm.

       Loquitta Howard and appellant dated for several years. On February 1, 2010, the two gave

appellants mother, Ms. Freddie, a ride to B&G. the neighborhood “stop and shop,” to buy some

cigarettes. I-toward knew Ms. Freddie would not be able to get out of the car because the back seat

doors had child-proof locks which were engaged. Once they arrived at the B&G, Howard got out

of the car and opened the back door for Ms. Freddie. Appellant became upset and started yelling and
cursing at her because she opened the door up for his mother.’

        When Ms. Freddie got back in the car. appellant was still yelling and fussing. Howard told

her appellant acted this way when he was    upset   and had been drinking, and appellant responded h

hitting Howard in the flice. I-Ic also took her phone from her. When they arrived home, Howard told

appellant she was going to open the door for Ms. Freddie. He threatened to kick her if she did.

Despite appellant’s threats, Howard got out and opened the back car door for Ms. Freddie.

       Appellantjumped out of the car and knocked Howard down. He stomped on her glasses and

kicked her, leaving bruises and boot prints on her body. Howard managed to find her cell phone and

called the police who arrested appellant.

       During trial, the State introduced evidence that appellant had been charged with assaulting

a woman named Anita Henderson in 2004. Appellant pleaded guilty. and the trial court deferred

adjudication of guilt. The deferred adjudication order contained an affirmative finding of family

violence.

       In his first issue. appellant claims the evidence is insufficient to support his conviction of

felony assault fhmily violence because the State failed to prove a prior conviction for assault family

violence. Specifically, he argues the evidence shows the conviction was for assaulting “another

girlfriend” and a dating assault was not family violence at the time of the prior conviction.

       We review a challenge to the sufficiency ofthe evidence under well established standards.

See Jackson v. Virginia. 444 U.S. 307, 319(1979); Brooks v. Slate, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). A person commits an assault if he intentionally, knowingly, or recklessly causes bodily

injury to another. TEx. PENAL CODE ANN.      §   22.0 l(a)(1) (West 2011). Although usually a Class A

misdemeanor. the offense is elevated to a third degree felony if it is committed against a person

whose relationship with the defendant is described in sections 71 .0021(b) (dating). 71 .003 (family),




                                                    —2—
or 71 .005 (household) of the fiimilv code and the detendant has been convicted previously of an

iss   wit   UT\   oR Ing I ImIl\   ‘   iolenct Id   22 01 (b)(2)(I\) see I I \ I   \M   ODE ANN   71 0021(b)

71 .003. 71 .005 (West 2008 & Supp. 2012). lfthe trial court determines the offense “involved flimily

violence, as defined by Section 71 .004, Family Code, the court shall make an affirmative finding of

that fact and enter the affirmative finding in thejudgmentofthe case.” TEx. CoDE CRIM. PROC. ANN.

art. 42.013 (West 2006); TEx. FAM. CODE ANN.                § 71 .004 (West 2008).
            To prove the defendant had been previously convicted of an assault involving family

violence, the State may introduce the prior judgment containing the affirmative finding of family

violence. See         Stale   v. Eakins. 71 S.W.3d 443, 444 (Tex. App.—Austin 2002. no pet.) (“Article

42.0 13 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 defendanfs previous

assault was a family member.”). For purposes of penal code section 22.01 (b)(2)(A). a defendant was

“previously convicted’” of an assault involving family violence if he “was adjudged guilty of the

offense or entered a plea of guilty or nob contendere in return for a grant of deferred adjudication.

regardless of whether the sentence for the offence was ever imposed or whether the sentence was

probated and the defendant was subsequently discharged from community supervision...                 .“   TEx.

PENAL CODE ANN.            § 22.01(0(1).
            In this case, the indictment and jury charge alleged appellant intentionally, knowingly, or

recklessly caused bodily injury to Howard, a member of his household or familyor with whom he

had a dating relationship. In addition, the indictment and charge alleged he had been convicted

previously of aggravated assault with a deadly weapon of a person who was a member of appellant’s

household and family and with whom he had a dating relationship, and that the offense, cause
number F04—74 140 ftom the 283rd Judicial District Court on November 2, 2005. constituted a family

violence offense under   section   22.01 (h)(2) of the penal code.

        During the testimony of Deputy Margaret Brown. the State introduced, without objection.

exhibit #2. the trial court s order of deferred adjudication in cause number F04—74 140 from the 283rd

Judicial District Court. in which appellant pleaded guilty to aggravated assault. Brown testified she

was an expert in fingerprint analysis and took appellant’s fingerprints before trial.           She then

compared those prints to the prints taken at the time of thejudgment in cause number F04-74 140 and

determined the fingerprints from the judgment were appellant’s. The November 2, 2005 deferred

adjudication order contains an affirmative finding of family violence. This evidence is sufficient to

establish a prior conviction lbr assault involving family violence. See Flowers’ v.   State, 220   S.W.3d

919. 921 (Tex. Crim. App. 2007).

        In reaching this conclusion, we necessarily reject appellanfs argument that the law in effect

at the time of his prior conviction did not provide for a dating relationship to constitute “family

violence.” At the time of appellant’s first assault charge, article 42.0 13 of the code of criminal

procedure provided that, in a trial of an offense under Title 5 (including assault), the trial court shall

make an affirmative findings of family violence if the court determines ‘the offense involved family

violence, as defined by Section 71.004, Family Code.” TEx. CODE CRIM. PROC. ANN. art. 42.013.

Section 71.004 of the family code defined family violence as “an act by a member of a family or

household against another member of the family or household” or “dating violence, as that term is

defined b Section 71.0021.” TEx. FAM. CODE ANN.             § 71.004. Section 71.0021 defined dating
violence as an act committed against a victim with whom the actor has or has had a dating

relationship. Act of April 27, 2001. 77th Leg.. R.S.. ch. 91, 2001 Tex. Gen Laws 176, 176 (current

version at TEX. F.\M. CODE ANN.       71.0021(a)). As noted, all three provisions were in effect at the




                                                   -4-
time appellant was charged with assaulting I lenderson, thereby allowing a finding of flimily violence

whether appellant assaulted a member of his family or household or someone with whom appellant

had a dating relationship. Because the law at the time allowed for a finding offamily violence based

on a dating relationship and the State properly established the prior conviction for assault family

violence, we overrule appellant’s first issue.

        In his second issue, appellant claims the trial court erred by instructing thejury to consider

whether there was a dating relationship” with respect to the prior 2005 offense involving Henderson

because. under the law in effect at the time, dating violence could not be used to enhance an assault.

        As noted above, the law in effect at the time of appellant’s prior conviction allowed for a

dating relationship to form the basis of a finding of family violence. Thus, his claim ofjury charge

error lacks merit. We overrule his second issue.

        In his third issue. appellant claims the trial court erred by commenting on evidence of dating

violence in the prior case. Although he concedes the trial court made no such comment, appellant

argues the “jury would have assumed     .   .   .   dating violence” occurred. To the extent he complains

about specific wording in the charge. we note the charge does not contain the phrase ‘dating

violence” or “violence.” Furthermore, because the trial court did not err in instructing the jury, the

proper instruction tracking the language of a relevant statute could not have constituted a comment

on the weight of the evidence. See Riddle v. State, 888 S.W.2d 1,8 (Tex. Crim. App. 1994). We

overrule appellant’s third issue.

       We affirm the trial court’s judgment.




I)o Not Publish
TEX. R. App. P. 47
I 10839F.U05
                                (tntrt nf   ijzth
                        FiftIi Dhtrirt uf cxa at Oa1tai

                                         JUDGMENT
WILLIAM HUOCIINS. Appellant                          Appeal from the Criminal District Court No.
                                                     2 of Dallas County. Texas. ( Fr.Ct.No. F 10-
No. 05-1 1-00839-CR           V.                     51870-I).
                                                     Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                         Justices Bridges and Lang participating.

       Based on the Courts   opinion   of this date, the judgment of the trial court is AFFIRMED.




Judgment entered October 1 0, 201 2.




                                                     MOLLY F NCIS
                                                     JUSTICE
