Byron Denell Vaughn v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00040-CR
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BYRON DENELL VAUGHN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 32903-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Byron Denell Vaughn appeals from his conviction for assault involving family violence enhanced by a prior conviction for assault involving family violence. The jury found Vaughn guilty of assaulting his girlfriend, Melinda Williams. (1) The jury assessed punishment at seven years' confinement, and the trial court sentenced Vaughn consistent with the jury's verdict. On appeal, Vaughn argues that the evidence of his prior conviction for assault involving family violence is legally insufficient.

The charges in this case result from a domestic dispute occurring on or about November 26, 2004. Vaughn's daughter, who was approximately four or five years old at the time, and several other children, Williams's children and two of Williams's nieces, were arguing over the television. The children were turning the television set off and on. In addition, one of Williams's children had eaten some cookies belonging to Vaughn's daughter. When Vaughn's daughter complained to Vaughn that the other children were picking on her, Vaughn told Williams to get control of the kids. Williams, who was cooking at the time, ignored Vaughn and continued cooking. In response, Vaughn pushed Williams and a struggle ensued. In her statement to the police, Williams stated, after Vaughn "jumped" her and pushed her to the floor, that Vaughn choked her and struck her in the face. When she entered the kitchen, S.B., one of Williams's nieces who was thirteen at the time, testified Williams was pinned against the wall and Vaughn had his hands around Williams's throat. Out of concern for her aunt's safety, S.B. jumped on Vaughn's back. After she jumped on Vaughn's back, S.B. testified Vaughn pinned her to the floor and started hitting her in the mouth. During the melee, one of Williams's shoulders was injured and her lip was cut. S.B.'s lip was cut and was bleeding on the left side when the police arrived. (2)

Assault with bodily injury is ordinarily a class A misdemeanor, but can be enhanced to a third-degree felony if the offense is committed against a member of the defendant's family or household and 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. Tex. Penal Code Ann. 22.01(b)(2) (Vernon Supp. 2006); see Tex. Fam. Code Ann. 71.003-.005 (Vernon 2002). "Household" is defined as "a unit composed of persons living together . . . without regard to whether they are related to each other." Tex. Fam. Code Ann. 71.005.

The copy of the judgment introduced by the State does not contain an affirmative finding of family violence other than adjudicating Vaughn guilty of assault family violence. In his sole point of error, Vaughn argues that the lack of an affirmative finding in the judgment renders the evidence legally insufficient. According to Vaughn, the judgment merely shows Vaughn pleaded guilty to assault. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

If the trial court determines that an offense involved family violence as defined by Section 71.004 of the Texas Family Code, the trial court is required to make an affirmative finding and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006); see Tex. Fam. Code Ann. 71.004; Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). In a subsequent prosecution for felony assault on a family member, the State may meet its burden to prove the defendant has been previously convicted of an offense involving family violence with extrinsic evidence of that fact. See Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.--Austin 2003, pet. ref'd); Goodwin v. State, 91 S.W.3d 912, 919 (Tex. App.--Fort Worth 2002, no pet.); State v. Cagle, 77 S.W.3d 344, 349 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). "The failure of the trial court . . . to affirmatively find that family violence was involved in [the prior] offense does not necessarily mean that the court considered the issue and determined that family violence was not involved." State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.--Austin 2002, no pet.).

Vaughn cites Ellis v. State, No. 02-02-00416-CR, 2004 Tex. App. LEXIS 914 (Tex. App.--Fort Worth Jan. 29, 2004, pet. ref'd) (mem. op., not designated for publication), and Crawford v. State, No. 12-05-00293-CR, 2006 Tex. App. LEXIS 6520 (Tex. App.--Tyler July 26, 2006, no pet.) (mem. op., not designated for publication). While unpublished opinions are not precedent, they may be persuasive on occasion. In Ellis, the only evidence that the defendant had been convicted of an offense involving family violence was that the case had been heard in a court that primarily dealt with family violence cases. Ellis, 2004 Tex. App. LEXIS 914. In Crawford, the State offered a certified copy of the prior judgment which found the defendant guilty of assault. Crawford, 2006 Tex. App. LEXIS 6520. The judgment in that case did not contain an affirmative finding of family violence and there was no other indication that the offense involved family violence. Id. Both of these cases are clearly distinguishable from this case.

In this case, the State offered considerably more evidence that Vaughn's prior conviction involved family violence than in Ellis or Crawford. To prove that Vaughn had been previously convicted of an assault on a family member, the State offered without objection a copy of the complaint, information, waiver of rights, judgment, and docket sheet from cause number 2001-2468 in the County Court of Gregg County. The information charges Vaughn with causing bodily injury to Tonya Love, a family member. Unlike the judgment in Crawford, the judgment in this case adjudicates Vaughn guilty of the offense "ASSAULT-FAMILY VIOLENCE" as charged in the information. While the judgment does not contain an affirmative finding, the docket sheet contains an affirmative finding that "THIS IS AN OFFENSE OF VIOLENCE AGAINST A FAMILY MEMBER AS DEFINED IN 71.01, FAMILY CODE." The affirmative finding on the docket sheet was signed by the presiding judge. When asked if he was convicted of assault family violence in 2001, Vaughn replied in the affirmative. Williams testified Vaughn was convicted of striking his "common law" wife, Love. A rational juror could have concluded beyond a reasonable doubt that Vaughn had previously been convicted of an offense involving family violence. The evidence is legally sufficient.

For the reasons stated, we affirm the judgment of the trial court.

 

Bailey C. Moseley

Justice

 

Date Submitted: January 24, 2007

Date Decided: May 11, 2007

 

Do Not Publish

1. Williams testified she and Vaughn had a common-law marriage. The record is not clear concerning whether all the requirements of a common-law marriage had been met. Williams testified she and Vaughn were residing together and that Vaughn was a member of her household. Vaughn testified that he and Williams had been residing together for "[m]aybe a year" at the time of the events in question.

2. In a related appeal, Vaughn v. State, No. 06-06-00055-CR, also decided this day, we likewise affirm Vaughn's conviction for injury to a child.