Case on appeal is challenging the family violence finding. The information stated family member or member of the household but jury charge expanded that definition to include dating relationships. Challenge is that jury did not find family member/househould member but instead found dating relationship. The appeal is alleging insufficient evidence because the jury charge was changed from victim was assualted by a "family member or household member" to victim was subjected to family violence" No record who made the change although the judge told us verbally she made the change. The allegation seems to imply that the jury didn't find family violence as in the information, but instead "changed" the wording to show they believed that it was the result of a dating relationship. Although no direct challenge to the variance between the information and jury charge it is implied through the insufficiency argument. Is it necessary to show the variance was not fatal especially since one tactic employed by defense counsel was to show he was not a family member/household member?

Patricia, I assume you are referring to a 42.013 finding. As I mentioned in the Blakely thread, I would not concede that any jury determination is required for the court to make this mandatory finding. Nor, indeed do I concede it must be alleged in the information (or would implicate the variance doctrine). In any event, unless it can be conclusively shown to be in error (i.e., untrue) how could it be said the court abused its discretion? Furthermore, in light of such cases as Manning, 112 S.W.3d at 744 and Mitchell, 102 S.W.3d at 774-5 (extrinsic proof always available to show identity of prior victim and that such use does not affect the outcome of the prior case), how will the defendant ever be harmed unless the finding is false? Obviously, if Apprendi applies to such a finding then I am wrong. But, to my knowledge no court has so held and no court should make that holding.

We are not trying to enhance this conviction, this is his first. The problem is conflict in the statutes. The assault charges define family violence as "family or household member" as defined in Fam Code 71.003 and 71.005. But the affirmative finding statute CCP 42.013 defines family violence as 71.004. So what do you do when you have a dating relationship? Under 71.004 it is family violence, but it cannot be used to enhance if you follow the definition of assault in 22.01. Therefore we have a finding of family violence which is essentially useless to enhance under 22.01. THe real question is whether if you charge "family or household member" but prove family violence through a dating relationship is the affirmative finding still valid. It meets the definition under 71.004 but doesn't agree with the charged offense in the information. It seems as if this needs clarification or we will have family violence affirmative findings which cannot be used to enhance because it doesn't meet the test under 22.01(b)(2) and (e)(1) and (2).

You have lost me. Isn't the "member of the 'family' or 'household'" mentioned in 71.004 referring to the same "family" as defined in 71.003 or the "household" defined in 71.005? I do not see where 22.01(e) conflicts with 42.013. I presume you are saying the "dater" was someone who "lived with" the defendant in the same dwelling for some period of time.

The defendant stayed with the victim about two to four nights out of the week but listed his residence as his mother's house and received all of his mail at his mother's house. I think we have enough evidence to show "member of household" but better evidence to show a "dating relationship". Counsel is arguing that affirmative finding is wrong because jury never specifically found "family or household member". Judge included dating relationship in definition of family violence under 71.004. Then judge had statement saying victim was subjected to family violence by defendant (Yes) or (NO). Yes was checked. That is the issue - did the jury find that defendant as a "family member or member of the household" or did the jury make the affirmative finding based on the dating relationship. We are arguing that the affirmative finding is correct because the definition used is in compliance with 42.013, but will we ever be able to use it for enhancement purposes since it doesn't meet the definition under 22.01. Will an affirmative finding of family violence ever be effective for enhancement if the definition includes dating relationship? We will never be able to determine from the record what relationship the jury found. Did the legislature intend for enhancement for "dating violence" under 22.01 and if so why did they not include 71.004 as a definition for enhancement purposes?

You are saying the judge strayed from (expanded upon) the statutory definition of "household" in the charge? But, in any event, I would argue the court can and should have entered the appropriate finding without regard to the jury finding and there is error in the judgment only if the appellant can show an abuse of discretion under 42.013 which would need to shown by proof in the record that the finding was false (under the correct definition). It sounds to me like the defendant and victim probably formed the necessary "unit" of persons living together in the same dwelling. Where you get your mail has nothing to do with it. Any collateral attack on the finding in the future will be even more problematic. I suppose someone will try to go behind the finding to prove the prior assault did not involve family violence, but I would certainly say the State will benefit from a presumption as to the finding, just like recitals in a judgment work. Basically you argue it is immaterial whether the jury received the correct definition of "household" because the court could independently enter the finding based on its understanding of the evidence.

But, maybe your case will give the court of appeals an opportunity to flesh out the meaning of 71.005 since it does not say how often or how long the persons must "live together".

A dating violence assault should be filed as Assault and not Assault-Family Violence. A protective order can be obtained for dating violence based on a recent legislative change, but the dating relationship does not fit within the defintion of Assault-Family Violence unless the victem is a member or the defendant's family or household. PC Sec. 22.01 (b) (2) should have been amended to include dating violence, but it was not.

I think you will lose the case on appeal although Assault is obviously a lesser included offense of Assault-Family Violence.

I think you have an affirmative finding of family violence that is valid but cannot be used to enhance another assault, so it is useless.

Family violence, by the definition in the Family Code, includes dating relationships. The prior assault that can be used to enhance under 22.01 must be against a member of the defendant's family or household (the term family violence isn't used). If the jury found a dating relationship but not that D was a member of the household or family, I don't think you can enhance with it, even with an affirmative finding of family violence.

Well, I guess I finally understand. Your judge decided to submit an issue to the jury as to whether the case involved family violence as defined in 71.004(3). I agree that that was a useless inquiry, since that definition of family violence is of no help in a later prosecution of someone "previously convicted of an offense against a member of the defendant's family or household". I guess the appellant has a point that such finding should be struck from the judgment since it is not the finding talked about in 42.013 (which was enacted prior to the 2001 amendment to 71.004). But, presumably the appellant is still guilty of Class A assault and striking the finding is the extent of the relief to which he is entitled. Maybe Ken is correct that 22.01(b)(2) now needs to be amended to read: "has previously been convicted of an offense under this section involving family violence as defined in Section 71.004 of the Family Code."

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Maybe Ken is correct that 22.01(b)(2) now needs to be amended to read: "has previously been convicted of an offense under this section involving family violence as defined in Section 71.004 of the Family Code."

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SB 686 (78th R.S.) would have done this (and more), but it died due to the redistricting walk-out last session. FV victims' groups will no doubt seek to pass it again next session, and we will lend support as needed. But until then, I think Patricia is s.o.l.