Rance Keith Crawford v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00293-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANCE KEITH CRAWFORD, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

  Rance Keith Crawford appeals his conviction for the felony offense of assault, family violence. In two issues, he contends that the evidence is legally and factually insufficient to prove that he assaulted a family member or that he had been previously convicted of an assault involving a family member. We reverse, order the entry of a reformed judgment, and remand for further proceedings.

Background

On March 30, 2005, Appellant assaulted Connie Crawford, his wife. Crawford sustained a laceration to her head. A Smith County grand jury indicted Appellant for the offense of assault, family violence, and further alleged that he had previously been convicted of an assault involving a family member.

The case was tried to a jury, and Appellant was found guilty as charged. The jury assessed punishment at ten years of imprisonment and a fine of $5,000.00. This appeal followed.

Sufficiency of the Evidence

In two issues, Appellant argues that the evidence is legally and factually insufficient to prove that he was the person who assaulted the victim and that he had previously been convicted of an assault involving a family member or member of his household.

Standard of Review Legal Sufficiency

The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). Evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). For legal sufficiency review, the evidence is examined in the light most favorable to the jury s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.

The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

As authorized by the indictment, the State was required to prove that (1) Appellant intentionally, knowingly, or recklessly caused bodily injury to another, (2) the offense was committed against a member of Appellant s family or household, and (3) Appellant had previously been convicted of an assault against a member of his family or household. See Tex. Pen. Code Ann. 22.01 (a)(1), (b)(2) (Vernon 2005).

Standard of Review Factual Sufficiency

In reviewing factual sufficiency of the evidence, we review all of the evidence neutrally and determine whether a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis Assault

In support of his argument that he was not the person who assaulted the victim, Appellant has marshaled the evidence that suggests that the victim did not wish to testify or want the prosecution to go forward. Furthermore, he asserts that the victim was an unreliable witness. Nevertheless, the victim testified that Appellant struck her in the head with a slapjack and kicked her while she was on the ground. The deputy who responded to the 9-1-1 call testified that she was still bleeding when he arrived, that there was fresh blood on the driveway, and that she told him Appellant had struck her. Finally, the emergency room doctor testified that the victim told her Appellant had hit her in the head. A rational finder of fact could have concluded beyond a reasonable doubt that Appellant was the one who assaulted his wife. Furthermore, the evidence is neither too weak to support the verdict nor is there contrary evidence that makes the jury conclusion unjust or manifestly unfair. We overrule Appellant s first issue.

Analysis Family Violence

In his second issue, Appellant argues that the evidence was legally insufficient to show that he had been convicted previously of an assault involving family violence.

Assault causing bodily injury is a class A misdemeanor. Tex. Pen. Code Ann. 22.01 (a)(1), (b) (Vernon 2005). However, the offense is a third degree felony if the victim is a family member, as that is defined, and the actor has a previous conviction for assault and the victim of that assault was a family member, a member of the person s household, or a person in a dating relationship with the actor. Id. at 22.01(b), (c)(2); Tex. Fam. Code Ann. 71.0021(b), 71.003, 71.005 (Vernon 2005).

When entering a judgment, a trial court is to make an affirmative finding that the offense involved family violence, as defined by Texas Family Code Section 71.004, if the trial court determines that to be the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2005); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006).

The lack of an affirmative finding does not settle the issue, however. In a subsequent prosecution, the State may meet its burden to prove that the defendant has previously been 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, 348 (Tex. App. Houston [14th Dist.] 2002, pet. ref d). This may be done, for example, with the testimony of the victim from the first conviction. See, e.g., Mitchell, 102 S.W.3d at 775; Goodwin, 91 S.W.3d at 920.

To prove that Appellant had been previously convicted of an assault involving family violence, the State introduced evidence of Appellant s prior conviction for assault. Specifically, the State offered a certified copy of a Judgment and Community Supervision Order from Appellant s 1996 conviction for assault along with the complaint and charging information from that case. The judgment showed that Appellant had pleaded guilty to assault. There is no finding of family violence and no other indication that the offense involved family violence, although the judgment does direct Appellant to stay away from Janet Whitworth. The only other place the name Janet Whitworth appears is in the complaint and charging information where it alleges that she was the victim of the assault.

The State also introduced a copy of a Criminal Docket that was obtained by the detective who investigated the case. The document, to which Appellant objected when it was offered, is not certified and does not appear to be the docket of a court. The detective testified that it was a copy of what I printed out of the computer out of the Smith County computer system. When Appellant s counsel probed further, the detective testified that the document was not certified and was something he had printed from a computer. At another time, the witness said that was taken from the computer that s prepared by the court.

This one page document relates to the 1996 conviction. It bears Appellant s name and has the same cause number as is contained in the certified records. Near the top it has an entry that reads as follows Off/Date: ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE. Lower on the form, the disposition is recorded as guilty, and the form includes a list of probation terms and conditions. At the very top, the document shows a time and date of 11:02 a.m. on May 2, 2005, which corresponds to the time of the investigation into the current matter.

The detective testified that he was satisfied that Appellant had been previously convicted of assault involving family violence. But his testimony was based on the one page document outlined above. The detective testified that he did no investigation into who Janet Whitworth was and was asked, Do you know if she fits under the legal definition of family or household member, as it existed in 1996, involving [Appellant]? The detective answered, No.

The State was required to prove either that there had been an affirmative finding of family violence for the 1996 conviction or that Janet Whitworth was a member of Appellant s family or household. The evidence is insufficient to show either. The Criminal Docket may suggest that the case involved family violence, but we cannot determine who made that assertion.1 It is certainly not and the State does not allege that it is an affirmative finding of family violence made by the court. It is also not an assertion made by the State in a charging information. Had it been, Appellant s plea of guilty might have been an admission of that fact.

Viewed in the light most favorable to the verdict, the document contains assertions made by an unknown person that the case involved family violence. Without knowing who that person is, the basis of the person s knowledge, or some notion of what it was the person was trying to express, we cannot conclude that the 1996 case involved family violence, especially in light of the burden to prove that fact beyond a reasonable doubt. The document is some kind of a summary of events surrounding the 1996 conviction. As with the detective s testimony, we cannot credit the conclusions reached without some understanding of the underlying components.

This case is similar to Ellis v. State, No. 2-02-416-CR, 2004 Tex. App. LEXIS 914 (Tex. App. Fort Worth 2004, pet. ref d) (not designated for publication). In Ellis, the only evidence to show that a previous conviction involved family violence was that the case had been heard in a court that primarily dealt with family violence cases. Id., at *4. The State conceded error in Ellis. There is no concession of error in this case, but we reach the same conclusion.

Viewing the evidence in a light most favorable to the jury s verdict, we are unable to conclude that the exhibit was sufficient to prove that the court made an affirmative finding of family violence or that the assault involved family violence.2 We accept Appellant s suggestion that the appropriate remedy is to remand the case so that he can be punished for a class A misdemeanor. See, e.g., Getts v. State, 156 S.W.3d 593, 596 (Tex. App. Tyler 2003), aff d, 155 S.W.3d 153 (Tex. Crim. App. 2005).3 We sustain Appellant s second issue.

Conclusion

There is no evidence that Appellant had been previously convicted of an assault involving family violence. Accordingly, we reverse the judgment of the trial court and remand this matter for the entry of a reformed judgment of conviction for a class A misdemeanor offense and for assessment of an appropriate punishment.

SAM GRIFFITH

Justice

Opinion delivered July 26, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 Appellant has not complained on appeal that the document was wrongly admitted, and we may consider hearsay evidence in our sufficiency analysis. Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).

2 We have considered and rejected the State s argument that Appellant s failure to offer evidence that Janet Whitworth was not a member of his family or household is evidence that she was a member of his family or household. A defendant may not be compelled to give evidence against himself, and the State bears the burden of proof in criminal matters. Tex. Const. art. I, 10; Tex. Pen. Code Ann. 2.01 (Vernon 2005).

3 The jury was charged on the lesser offense of misdemeanor assault. Cf. Collier v. State, 999 S.W.2d 779, 782 83 (Tex. Crim. App. 1999).