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State v. Eakins

The failure of the trial court to affirmatively find that family violence was involved in a previous offense does not necessarily mean that the court considered the issue and determined that family violence was not involved; thus, the absence of an affirmative finding in the previous assault does not preclude the introduction of extrinsic evidence that the previous assault was committed against a family member.

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Assault with bodily injury, ordinarily a class A misdemeanor, is a third degree felony if the offense is committed against “a member of the defendant’s family or household, if 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 under this section.” Tex. Pen. Code Ann. � 22.01(b)(2) (West Supp. 2002).

The question presented in this appeal is how the State may prove, in a prosecution for assaulting a family member, that the defendant has previously been convicted of assaulting a family member and is therefore guilty of a felony pursuant to section 22.01(b)(2). The answer to this question requires us to construe code of criminal procedure article 42.013, which reads:

In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.01, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (West Supp. 2002).

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