In '97 def. was convicted of agg. assault. The victim was a family member. In 2003 same def. assaulted same family member (class A). Is the second assault enhanceable under 22.01 (b)(2) even though the first assault was not filed under 22.01 It seems logical and seems to be the intent of the family violence law, however, have been unable to find any case that discusses the meaning of "previously convicted.....under this section". The family status of the first assault will be able to be proven by extrinsic evidence.
Thanks,
Mike Hartman, Scurry County Atty.

This issue is addressed in The Perfect Plea, under a discussion of Special Issues (Family Violence) on pages 36-37. The discussions includes a reference to State v. Eakins, 71 SW3d 443, which describes the meaning of "previously convicted."

In short, you don't need a finding of family violence in the prior conviction. You simply need to prove it up during the trial of the subsequent offense.

Since the publication of The Perfect Plea by TDCAA, other courts of appeals have answered the same question the same way, and the Austin Court of Appeals has rejected a request to reconsider its position: Mitchell v. State, 102 S.W.3d 772 (Tex. App. Austin 2003).

Good luck.

I am worried about the limiting language of ...."under this section". The Mitchell case says "under this section" means 22.01. In the instant case my previous conviction is under section 22.02. Am I reading something wrong or perhaps I'm a little thick and have missed your point(it wouldn't be the first time)? Any further help you can provide would be appreciated. Proving that the prior Agg. Assault occurred against a family member will be easy in this case.

You are right. The statute may be unnecessarily limited or specific, since the clear intent would be to include the more serious 22.02 conduct. Along the line of Parfait being discussed in another thread, I would argue that since 22.02 specifically requires that one commit an "assault as defined in Section 22.01" as one of its elements, that (b)(2) should surely be interpreted to include prior 22.02 convictions. If it is not subject to that interpretation, the language certainly should be amended.

There was an attempt to amend it in the regular session, but it died on the House Calendar in the waning days. SB 686 We read the current law to mean prior 22.01 convictions only.

[This message was edited by John Rolater on 08-21-03 at .]

And yet another victory for the User Forum. Case law meets statutory interpretation meets failed amendment. Thanks for everyone's input. I agree that the prior conviction is limited to a 22.01 assault. Stupid, but that's what it says.

Another argument which might work is the idea that the conviction for the greater offense of aggravated assault necessarily included a conviction for the lesser offense of assault. E.g., Herrin,(Tex.Crim.App. 2002). Thus, even though the prior judgment may refer only to the greater offense, it necessarily also qualifies as a conviction of the lesser offense.

Thanks for all the imput. This Def. is not a very nice guy and a "class A" doesn't seem like enough punishment given his prior record.

The example we have is a defendant who ended up murdering his two daughters while his ex-wife listened in horror on the telephone. Death row is too good for some defendants.

The statute specifically states "under this section." Tex. Penal Code Ann. Sec. 22.01. Even if you liberally interpret the code, seeTex. Penal Code Ann. Sec. 1.05(a), a reference to a section is still a reference to a section. See Tex. Penal Code Ann. Sec. 1.05(c)(1). A reference to a specific section necessarily excludes all other sections. Thus, a conviction under Section 22.02 is not a conviction under Section 22.01.

Martin has stated some arguments, but I would worry that you'll be on the receiving end of a pointed lecture from a court of appeals if you prosecute this case as a felony. And, arguably, it will be a retrial of the whole case, not punishment only, since you need a valid prior to allege a felony offense.

Can you seek a revocation of parole or probation for the prior felony family violence assault? If nothing else, what about seeking enhanced punishment under Tex. Penal Code Ann. Sec. 12.43(a) since he has a prior felony? Granted it isn't much, but who knows what might make the critical difference in a defendant's mind? Would felony probation have made a difference to our child murdering defendant? Maybe, maybe not.

Allege the prior conviction in an indictment. Surely the defendant will file a motion to quash that portion. Tell the judge you would just as soon the motion be granted so you can get the issue resolved before incurring the risks mentioned by John R, and then appeal under 44.01(a)(1). Now, I realize the sufficiency of the State's evidence cannot be challenged by a motion to quash, but there is no dispute about the evidence, only whether as a matter of law it meets (on its face) the terms of the statute.

I am in trial on a felonize A assault (his is habitualized also by the way). The victim in my prior assault is the same victim in my current assault. The Judgement in the prior states he was convicted of Assault (Family Violence) by assaulting a family member. The problem is this, the victim has stated in our case that she does not meet any of the definitions of family member. She is clearly a member of the defendant's household and that is what we are proceeding on in the felony case, but the Judge is saying he wants to direct us out because clearly from the evidence she is not a family member today and was not a family member at the time the defendant pled guilty on the prior. Any advice?