A trial judge’s finding of fact must be supported by credible evidence. A family- violence finding is a finding of fact. Here, there was no admissible evidence to support the trial court’s inclusion of a family-violence finding in Appellant’s deferred adjudication order. Moreover, the charging instrument to which Appellant pled “no contest” did not allege any kind of relationship between Appellant and Complainant, and the plea paperwork signed by Appellant and his attorney alleged only “Abi”—assault bodily injury; it did not list the offense to which Appellant pled as an assault involving family violence. Further, Appellant made no admissions regarding the nature of his relationship with Complainant, and the record shows two separate home addresses for the two of them. Accordingly, even assuming that the trial court had authority to enter such a finding generally, the family-violence finding in this case was unsupported, and the trial court had no discretion to enter the unsupported factual finding. We reverse the judgment of the court of appeals which upheld the trial court’s family-violence finding, and we strike the family- violence finding from the trial court’s deferred adjudication order. Background Trial Proceedings On August 18, 2020, the State filed an information charging Appellant with assault. The information contained the caption “assault bodily injury — married/cohab,” but the body of the information contained no allegation regarding the relationship between Appellant and Complainant: On or about the 12th Day of December, 2019, RUDY ZAPATA, hereinafter referred to as defendant, did then and there intentionally, knowingly, and recklessly cause bodily injury to another, namely: ANGELITA GONZALEZ, hereinafter referred to as complainant, by STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, PUSHING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, DRAGGING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, SLAMMING THE HEAD OF THE COMPLAINANT INTO A STAIRCASE WITH THE HAND OF THE DEFENDANT and PULLING THE HAIR OF COMPLAINANT WITH THE HAND AND FINGERS OF DEFENDANT. The supporting probable cause affidavit recited the above paragraph and included a summary of the responding officer’s offense report. That summary alleged that the Complainant reported that she was Appellant’s “girlfriend.” There is no sworn testimony of the Complainant to this effect, nor is there any additional description of the nature of the relationship between Appellant and the Complainant. Additionally, the home address listed for Complainant was different from Appellant’s address, indicating that they did not live together. On May 3, 2022, Appellant signed a sworn “Application for Deferred Adjudication,” which listed the charged offense as “Abi.”[1] That same day, the State, defense counsel, and Appellant signed a separate document entitled “Plea Bargain.” The parties agreed that the State would recommend a sentence of twelve months of community supervision with deferred adjudication, a probated fine of $650, and “CC,” which presumably meant court costs. This document does not list the offense. It provides that Appellant “agree[s] to the following plea bargain terms in exchange for accepting responsibility for the charged offense by way of a guilty or nolo contendere plea.” The bottom of this page, after the signature block, contains a list of additional community supervision terms but states that “[t]he following recommendations do not constitute part of the formal plea agreement” and notes that they are not binding. The State checked six of the twelve “non-binding recommendations,” including a “Family Violence Finding,” a “Family Violence Course (BIPP),” and a “$100 fee to a Battered Women’s Shelter.” The exchange between the State and defense counsel reflected in the plea hearing’s record indicates that the State checked the non-binding recommendations after defense counsel and Appellant signed the document and that they did not learn of the State’s additional recommendations until after Appellant entered his “no contest” plea. At the start of the plea hearing, held by Zoom, the following exchange occurred between Appellant and the trial judge: The Court: Are you the same Rudy Zapata who’s been charged with an assault bodily injury-married offense alleged to have occurred on or about the 12th day of December of 2019? Defendant: Yes, ma’am. The Court: Mr. Zapata, that is a Class A misdemeanor. It’s punishable by up to one year of incarceration at the Bexar County jail. In addition to that, you could face up to a $4,000 fine. And for this offense, your second amendment constitutional right to bear firearms and have guns can be taken away from you for the rest of your life. Mr. Zapata, do you understand the charge? Defendant: Yes, ma’am. The Court: How do you plead to the charge? Defendant: No contest. They then turned to a document entitled “Defendant’s Waiver of Constitutional Rights and Court’s Admonitions.” This document stated: I, RUDY ZAPATA, THE DEFENDANT, BEING PRESENT IN COURT IN PERSON,[2] HEREBY WAIVE THE READING OF THE INFORMATION IN THE ABOVE NUMBERED AND STYLED CAUSE. I UNDERSTAND THAT I AM CHARGED WITH THE OFFENSE OF: Abi I HEREBY ENTER A PLEA OF NO CONTEST TO THIS CHARGE. The judge ensured that: (1) before the hearing, defense counsel and Appellant reviewed this waiver, and (2) Appellant understood the terms of his plea. After confirmation, Appellant, defense counsel, and the judge signed the document in which Appellant pled “no contest” to assault bodily injury. After Appellant entered his plea on the record, the State informed the trial court that the agreement was for twelve months of community supervision with deferred adjudication, a probated $650 fine, and court costs. But the prosecutor continued by recommending, among other things, an affirmative family-violence finding. Defense counsel responded that the family-violence finding should be held in abeyance because “the affirmative family-violence finding only attaches to a judgment, and there is no judgment on this cause.” The court denied the request for an abeyance, stating: The allegation is as follows: That, Mr. Zapata, referred to as Defendant, did then intentionally, knowingly, recklessly cause bodily injury to another, namely Angelita Gonzalez, hereinafter referred to as the Complainant, by striking the complainant with the hand of the Defendant, pushing the Complainant with the hand of the Defendant, slamming the head of the Complainant into a staircase with the hand of the Defendant, and pulling the hair of the Complainant with the hand and fingers of Defendant. The officer further wrote in his offense report that the Complainant reported that an argument had ensued between she and Defendant. That Defendant then struck, pushed, dragged, pulled the hair of the Complainant and slammed Complainant’s head into a staircase. The officer in his report observed one or more red marks on Complainant, which Complainant stated was the result of the assault by the Defendant. That strongly concerns the Court that that is the extent of the allegation. We can go to trial or—or you can accept the Affirmative Finding of Family Violence. After further discussions, the judge maintained that Appellant could either move forward with the plea agreement, which would result in the court including the family- violence finding in the deferred order, or Appellant could go to trial. Ultimately, defense counsel opened the plea to the court and stated that she would leave it to the court to decide the terms. The court then entered the family-violence finding in Appellant’s deferred adjudication order. But the judge agreed to allow Appellant to appeal because she was “not too sure what it is that [Appellant] wanted . . . And so [she was] not sure that [she] followed the agreement.” Court of Appeals’ Opinion On appeal, the Fourth Court of Appeals affirmed the trial court’s inclusion of the family-violence finding in the deferred adjudication order. Zapata v. State, 678 S.W.3d 325 (Tex. App.—San Antonio 2023). Appellant had argued that, under the circumstances, the trial court could not enter an affirmative family-violence finding because, pursuant to Article 42.013 of the Texas Code of Criminal Procedure,[3] such a finding cannot be entered absent a judgment. Id. at 327. Given that the trial court issued an order of deferred adjudication, there was no “judgment” in the case, and so, according to Appellant, the trial court lacked authority to enter the finding. Id. The court of appeals agreed with Appellant that an order of deferred adjudication is not a “judgment” and, therefore, Article 42.013 of the Texas Code of Criminal Procedure could not apply. Id. at 328 (noting that Article 42.013 applies only to “judgments”). The court of appeals further noted that Texas Penal Code section 22.01(f)(1), which treats a prior deferred adjudication order for an assault involving family violence as a conviction for enhancement purposes, could not transform Appellant’s current deferred adjudication into a conviction. Id. It also noted that “the Texas Legislature has established a list of affirmative findings a court must make when it places on deferred adjudication community supervision a defendant charged with certain offenses,” and “an affirmative finding of family violence is not included in this list.” Id. at 329 (citing TEX. CODE CRIM PROC. ART. 42A.105). Thus, the court determined that the Legislature “did not intend to require an affirmative finding of family violence to be entered in an order of deferred adjudication in an appropriate case.” Id. (emphasis added). Despite its agreement with Appellant on the foregoing issues, the court of appeals nevertheless held that the trial court still had discretion to enter a family-violence finding in the order of deferred adjudication here. See id. at 329–30. This determination was based on two provisions in Chapter 42A of the Texas Code of Criminal Procedure. First, the court cited Article 42A.104(a), which allows the trial court to impose reasonable conditions of community supervision. Id. at 329. The court of appeals initially noted that a family- violence finding is a “finding of fact, not a condition of community supervision that could be violated,” and so this provision, taken on its own, could not justify the trial court’s inclusion of the family-violence finding. Id. But the court then further cited Article 42A.504(b), which requires the trial court to impose a fine on individuals “convicted of an offense under Title 5, Penal Code, that the court determines involves family violence.” Id. (citing TEX. CODE CRIM. PROC. art. 42A.504(b)). This provision, the court reasoned, meant that a family-violence finding was relevant to the imposition of such a condition. Id. Therefore, the court of appeals found that these two articles, “operating together, gave the trial court discretion to make an affirmative finding of family violence in this case.” Id. at 330. Thus, while the family-violence finding was not required, it was permissible. Id. The court of appeals then concluded that “the finding in this case is supported by Zapata’s plea of no contest to the information which specifically alleged an assault with bodily injury married/cohabitating.” Id. The court reasoned that “the trial court recited the evidence of the assault” during the plea hearing and that Appellant ultimately pled “open” to the trial court. Id. The court of appeals stated that “going open to the court makes all the difference” in this case and that, by “going open,” Appellant “ultimately left the decision to make this finding to the court.” Id. The court concluded, “Although we agree with Zapata that a trial court is not required to enter a family violence finding and that a family violence finding is not a condition of deferred adjudication community supervision, we disagree that the trial court, in an open plea, wholly lacked discretion to enter a finding before adjudication.” Id. We then granted Appellant’s petition for discretionary review to examine the appellate court’s holding that the trial court had discretion to enter a family-violence finding under these circumstances. The question on which we granted review asks, “Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?” Analysis We do not ultimately resolve here the purely legal question of whether a trial judge has discretion to enter a family-violence finding in a deferred adjudication order. This is because, even assuming that a trial judge has such authority or discretion in the abstract, in a given case, there must still be adequate evidence to support such a finding. A review of the record in this case demonstrates that there was, in fact, no evidence whatsoever to support the trial court’s family-violence finding. Contrary to the court of appeals’ holding, Appellant’s plea to ordinary assault bodily injury cannot support the court’s entry of that finding. When a factual finding is unsupported, a trial court lacks discretion to enter it. Because the issue on which we granted review in this case is intertwined with the underlying question of whether any evidence could support the trial court’s finding, we will resolve this case on that narrower basis, and we do not reach the broader legal question presented. Accordingly, we reverse the court of appeals’ judgment upholding the affirmative family-violence finding, and we strike that finding from the trial court’s deferred adjudication order. A family violence affirmative finding, as a finding of fact, must be supported by adequate evidence. Such evidence may come from stipulated facts, judicial confessions, the introduction of other competent evidence, or (under certain circumstances) by virtue of the defendant’s plea itself. See Menefee v. State, 287 S.W.3d 9, 13–14 (Tex. Crim. App. 2009); Ex parte Williams, 703 S.W.2d 674, 678–82 (Tex. Crim. App. 1986). The scope of what constitutes family violence is governed by statute. “Family violence” is defined as: an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or dating violence, as that term is defined by Section 71.0021. TEX. FAM. CODE § 71.004. “Family” is defined as: ndividuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Id. § 71.003. “Household” is a “unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Id. § 71.005. Finally, “dating violence,” is defined as follows: “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that: is committed against a victim or applicant for a protective order: with whom the actor has or has had a dating relationship; or because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: the length of the relationship; the nature of the relationship; and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b). Id. § 71.0021. Based on these statutory definitions, to support the trial court’s inclusion of an affirmative family-violence finding here, there had to be some evidence to establish that Complainant and Appellant were members of the same family or household, or that they were or had been in a dating relationship. But, as is apparent from our discussion of the record above, there was no evidence identifying any kind of relationship between Appellant and Complainant that would support a family-violence finding, and the judge did not hold an evidentiary hearing.[4] We therefore look to the allegations to which Appellant pled “no contest.” When a defendant pleads “guilty” or “no contest” to the offense as charged, he is admitting to all the material facts alleged in the charge. Williams, 703 S.W.2d at 682 (citing United States v. Bendicks, 449 F.2d 313, 314–15 (5th Cir. 1971)). Here, according to the sworn plea paperwork signed by Appellant, Appellant pled “no contest” to the offense of “assault bodily injury.” Even assuming that he, in fact, pled “no contest” to the information which was captioned “assault bodily injury — married/cohab,” the body of the information does not allege a family, household, or dating relationship between the Complainant and Appellant: On or about the 12th Day of December, 2019, RUDY ZAPATA, hereinafter referred to as defendant, did then and there intentionally, knowingly, and recklessly cause bodily injury to another, namely: ANGELITA GONZALEZ, hereinafter referred to as complainant, by STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, PUSHING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, DRAGGING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT, SLAMMING THE HEAD OF THE COMPLAINANT INTO A STAIRCASE WITH THE HAND OF THE DEFENDANT and PULLING THE HAIR OF COMPLAINANT WITH THE HAND AND FINGERS OF DEFENDANT. The body of the information includes every element of assault, as defined by Texas Penal Code section 22.01(a)(1), but does not include the elements necessary to support a charge of assault family violence under Penal Code Section 22.01(b)(2). See TEX. PENAL CODE § 22.01(a)(1) (bodily injury assault); 22.01(b)(2) (assault family violence). Because none of the allegations in the body of the information establish any kind of family or dating relationship between Appellant and the Complainant, Appellant’s admission to the material facts set forth in the information do not provide any evidence to support a family-violence finding. Appellant’s nolo contendere plea admitted every element of assault causing bodily injury, and nothing more. Williams, 703 S.W.2d at 678. Because Appellant’s plea to the information cannot supply the evidence necessary to support the family-violence finding, we must look elsewhere. The only possible evidence regarding the relationship between Appellant and the Complainant was the inadmissible hearsay statement in the officer’s probable cause affidavit, which stated that the Complainant told the officer that Appellant was her “boyfriend.”[5] This statement, however, does not constitute adequate evidence to support the finding. The Complainant never provided a sworn statement or testimony describing her relationship with Appellant, and Appellant never admitted that he was the Complainant’s boyfriend. Moreover, the mere mention to the officer of Appellant being the Complainant’s “boyfriend” does not satisfy the statutory definition for what constitutes a dating relationship. The applicable statutes provide that the existence of a dating relationship “shall be determined based on consideration of” the length and nature of the relationship and the frequency and type of interactions between the individuals, and there was nothing in the record to establish those facts. See TEX. FAM. CODE § 71.0021; Edward v. State, 635 S.W.3d 649, 657–59 (Tex. Crim. App. 2021) (finding sufficient evidence of a dating relationship when: (1) the responding officer testified that the complainant called the defendant her boyfriend, (2) the assault occurred in the complainant’s apartment, (3) the defendant was found sitting on complainant’s bed, and (4) the complainant completed and signed a family violence form). Here, the probable cause affidavit contained an inadmissible hearsay statement in which the officer reported that the Complainant called herself Appellant’s girlfriend. Not only did that fail to establish a dating relationship for purposes of a family-violence finding, but the trial court did not even refer to that statement when declaring the reasoning behind its decision. Even assuming the trial court relied on the Complainant’s hearsay statement, there is still no evidence of the other factors that must be considered. Edwards, 635 S.W.3d at 657 (noting that the fact finder must at least “consider the listed factors”). The record also does not support an affirmative family-violence finding under section 71.004(1) of the Texas Family Code (stating that “family violence” is “an act by a member of a family or household against another member of the family or household”). There is no evidence of the Complainant and Appellant being family members, and no evidence of them being current or former members of the same household. Therefore, after examining the totality of record, we conclude that the trial court’s family-violence finding was unsupported by any evidence. For the reasons explained above, the court of appeals erred by concluding that the finding was supported by Appellant’s plea of “no contest” because he did not plead to any allegations that could establish a family or dating relationship between him and Complainant. And there is no other evidence in the record that could support the existence of such a relationship. The absence of any evidence to support the family-violence finding results in the judge’s lack of discretion to enter the finding. Accordingly, the finding must be deleted from Appellant’s order of deferred adjudication. Fann v. State, 702 S.W.2d 602, 603 (Tex. Crim. App. 1985) (“[B]ecause the trial judge should not have made the affirmative finding, we will reform and correct the judgment of conviction by deleting [the finding].”). Conclusion We conclude that the trial court erred by entering a family-violence finding in Appellant’s order of deferred adjudication because, even assuming that a court has general authority to make such a finding, no facts supported the finding here. We reverse the judgment of the court of appeals that had upheld the trial court’s finding, and we strike the affirmative family-violence finding from the trial court’s deferred adjudication order. Delivered: October 23, 2024 Publish
