          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00137-CR



                                       Roderick Stoker, Appellant

                                                      v.

                                      The State of Texas, Appellee




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
            NO. 2010840, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING



                               MEMORANDUM OPINION


                 After his Amotion to quash indictment and plea to the jurisdiction of the court@ was

overruled, appellant Roderick Stoker pleaded guilty to an indictment accusing him of assaulting, and of

having twice before been convicted of assaulting, Aa member of [his] family and household.@ Tex. Pen.

Code Ann. ' 22.01(a), (b)(2) (West Supp. 2003). After accepting the plea and hearing Stoker=s testimony

admitting the truth of the indictment=s allegations, the district court adjudged him guilty.1 As called for in a

plea bargain agreement, the court assessed punishment at imprisonment for four years, suspended

imposition of sentence, and placed Stoker on community supervision.


   1
     The guilty plea proceeding was before the Honorable Tom Blackwell. Pre- and post-trial
proceedings were before the Honorable Frank W. Bryan, Jr., who also signed the judgment of
conviction.
                 Stoker filed a motion for new trial contending: (1) the evidence was legally insufficient to

sustain the conviction; (2) he was Aactually innocent of the charge@; (3) he was denied effective assistance of

trial counsel; (4) the district court did not have jurisdiction; and (5) his conviction violated several

constitutional guarantees. A hearing was held on the motion, at which Stoker abandoned the actual

innocence claim. The district court overruled the motion Ain its entirety@ at the conclusion of the hearing.

Then, apparently concerned about the abandoned actual innocence claim, the court granted Stoker a new

trial on its own motion and Ain the interest of justice.@ Two weeks later, the court announced in open court

that it had reconsidered its action and determined that it was without authority to grant a new trial on its own

motion.

                 In his first point of error, Stoker contends the district court erred by Arescinding its order

withdrawing and setting aside appellant=s guilty plea and conviction.@ The court announced that it was

granting Stoker a new trial on its own motion on January 22, 2002, the seventy-fifth day after

sentence was suspended. Stoker argues that the court could not thereafter rescind the order and reinstate

the conviction. See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) (trial court=s

authority to rescind order granting or denying motion for new trial expires seventy-six days after sentence is

imposed or suspended); see also Tex. R. App. P. 21.8 (court must rule on motion for new trial within

seventy-five days after imposing or suspending sentence). While we agree with Stoker that the district

court could not rescind an order granting a new trial after January 22, the district court also

recognized this and did not purport to do so. Instead, the court merely announced its conclusion that




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the January 22 order was unauthorized and void. Stoker also challenges this conclusion, and it is to this

question we now turn.

                 The appellate rules specify certain grounds for which a motion for new trial must be granted,

but a trial court has the discretion to grant a motion for new trial on other grounds in the interest of justice.

State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); see Tex. R. App. P. 21.3 (grounds for

new trial). A trial court may not, however, grant a new trial on its own motion. Dugard v. State, 688

S.W.2d 524, 528 (Tex. Crim. App. 1985). Stoker seeks to avoid the application of Dugard by

characterizing the January 22 order as one withdrawing his guilty plea rather than as one granting a new trial.

Under the circumstances presented, this is a distinction without a difference. See State v. Evans, 843

S.W.2d 576, 577-78 (Tex. Crim. App. 1992) (post-trial motion to withdraw plea was functionally

indistinguishable from motion for new trial, and was properly treated as such). The district court correctly

concluded that its order purporting to grant Stoker a new trial on its own motion was void. Point of error

one is overruled.

                 In point of error ten, Stoker contends the district court erred by overruling his pretrial

motion to quash and plea to the jurisdiction on the ground that the judgments in the two previous assault

convictions alleged pursuant to section 22.01(b)(2) did not contain affirmative findings that the cases

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

finding).2 He makes the same contention in point of error eleven with regard to the overruling of his motion

for new trial.


   2
       The judgment of conviction in Travis County cause number 454658, one of the two previous

                                                       3
assault convictions, states that Stoker was found guilty of Aassault B family violence.@ We will assume,
as Stoker contends, that this does not constitute an affirmative finding of family violence. See State v.
Eakins, 71 S.W.3d 4443, 444 n.1 (Tex. App.CAustin 2002, no pet.).


                                                   4
                 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 committed against a family

member. Id.

                 The indictment in this cause alleged two previous assault convictions involving offenses

against a member of Stoker=s family and household. This was sufficient to allege a felony pursuant to

section 22.01(b)(2) and vest jurisdiction in the district court. The absence of family violence findings in the

earlier judgments did not preclude extrinsic proof of this fact at Stoker=s trial and thus did not divest the

district court of jurisdiction. Points of error ten and eleven are overruled.

                 In points of error two and three, Stoker contends the district court erred by overruling his

pretrial motion to quash and plea to the jurisdiction on the ground that the State was barred by double

jeopardy principles from relitigating the issue of family violence with respect to his previous assault

convictions. He cites both the United States and Texas constitutions, but does not argue that they differ in

any relevant respect. See U.S. Const. amend. V; Tex. Const. art. I, ' 14.


                                                      5
                 Double jeopardy does not apply to noncapital sentencing enhancements because an

enhanced sentence imposed on a persistent offender is not a new jeopardy or an additional penalty for the

earlier offense. See Monge v. California, 524 U.S. 721, 728 (1988); Bell v. State, 994 S.W.2d 173,

175 (Tex. Crim. App. 1999). Using Stoker=s previous family violence assault convictions to enhance his

punishment in this cause did not constitute a retrial or additional penalty for the earlier offenses. State v.

Cagle, 77 S.W.3d 344, 347 (Tex. App.CHouston [14th Dist. 2002, pet. ref=d). Nor did the use of his

previous convictions violate the collateral estoppel component of double jeopardy. See Ashe v. Swenson,

397 U.S. 436, 443 (when issue of ultimate fact has been determined by valid and final judgment, it cannot

be relitigated between same parties). The absence of a family violence finding in the previous assault

judgments did not necessarily mean that the issue was determined against the State at the earlier trials.

Eakins, 71 S.W.3d at 445. In fact, Stoker states that family violence was not an issue at the earlier trials.

If that is true, and if the relationship between Stoker and the victims of the earlier assaults was not litigated at

the earlier trials, collateral estoppel did not prevent that issue from being litigated in the present case. See

Cagle, 77 S.W.3d at 348. Points of error two and three are overruled.

                 Stoker=s remaining points of error are not properly before us because they neither assert

jurisdictional defects nor were raised by pretrial motion, and because Stoker=s notice of appeal did not

state that he had the trial court=s permission to raise other issues. See Tex. R. App. P. 25.2(b)(3), 60

Tex. B.J. 434 (Tex. Crim. App. 1997, repealed 2003). In points of error four and five, Stoker makes the

same double jeopardy arguments he made in points two and three, but with regard to the overruling of his

motion for new trial. In point of error six, Stoker contends the district court erred by overruling his motion


                                                         6
for new trial on the ground that the State waived a family violence finding in Travis County cause number

458093, the second of the two previous assault convictions alleged pursuant to section 22.01(b)(2), as part

of a plea bargain.3 In points of error seven, eight, and nine, Stoker contends the district court erred by

overruling his motion for new trial on the ground that the use of his previous family violence assault

convictions in this cause violated the constitutional guarantees against ex post facto and retroactive laws.

See U.S. Const. art. I, ' 9; Tex. Const. art. I, ' 16. Points of error four through nine are dismissed.

                 The judgment of conviction is affirmed.




                                                 __________________________________________

                                                 Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: February 21, 2003

Do Not Publish




   3
       Section 22.01(b)(2) requires only one previous family violence assault conviction.


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