Collesano, Kevin Michael v. State

Opinion issued August 29, 2002 In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00984-CR ____________ KEVIN MICHAEL COLLESANO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 872,883 O P I N I O N Appellant, Kevin Michael Collesano, was charged with assault of a family member and pleaded: (1) nolo contendere, with an agreed recommendation, to assault on a member of appellant's household; and (2) not true to the enhancement paragraph for a previous assault on a member of appellant's household. (1) After finding the enhancement paragraph true, (2) the trial court deferred the adjudication of appellant's guilt, placed appellant under conditions of community supervision for five years, assessed a $400 fine, and granted appellant permission to appeal the denials of the motions to quash and to exclude relitigation of evidence from a previous conviction. Appellant, in four points of error, contends: (1) the trial court erred by denying his first motion to quash the indictment; (2) the trial court erred by denying his motion to exclude "re-litigation" evidence; (3) the evidence was legally insufficient to support the trial court's finding of true to the enhancement paragraph; and (4) the trial court erred in overruling his second motion to quash the enhancement paragraph. We affirm. Background The enhancement paragraph referred to appellant's conviction in cause number 9701177 in the County Criminal Court at Law No. 4 of Harris County for a Class C misdemeanor assault. The information in cause number 9701177 did not allege that appellant assaulted a household or family member, and the trial court did not enter an affirmative finding of family violence in the judgment in that cause. (3) See Tex. Code Crim. P. Ann. art. 42.013 (Vernon Supp. 2002) (if offense involves family violence, trial court shall make affirmative finding of family violence and enter finding in judgment). Instead, the trial court circled "N/A" in reference to a family-violence finding. During the plea proceedings, appellant stipulated to the State's summary of the testimony of the arresting officer in cause number 9701177, which was that the assault victim in that cause was appellant's wife. Motion to Quash Enhancement In point of error one, appellant contends the trial court erred in denying his motion to quash the enhancement paragraph of the indictment because the judgment in cause number 9701177 does not contain an affirmative finding of family violence. We disagree. We review a trial court's ruling on a motion to quash under an abuse-of-discretion standard. See Goldsberry v. State, 14 S.W.3d 770, 772 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). A trial court abuses its discretion if it acts without reference to any guiding rules and principles, or acts in an arbitrary or unreasonable manner. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Penal Code section 22.01(b)(2) provides that an assault against a member of the defendant's family or household is a felony of the third degree 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." (4) Code of Criminal Procedure article 42.013 provides that "[i]n 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 the fact and enter the affirmative finding in the judgment of the case." Tex. Code Crim. Proc. Ann. art 42.013 (Vernon Supp. 2002) (emphasis added). The Code Construction Act provides that "'shall' imposes a duty." Tex. Gov't Code Ann. § 311.016(2) (Vernon 1998). The State relies on the Austin Court of Appeal's decision in State v. Eakins, 71 S.W.3d 443 (Tex. App.--Austin 2002, no pet.), to argue that extrinsic evidence is allowed to prove appellant's prior conviction for assault committed against a family or household member. In Eakins, the defendant was charged with assault committed against a family member. Id. at 443. The defendant's indictment alleged that a previous assault was committed against a family member, resulting in an upgrade of punishment (for the current assault charge) from a Class A misdemeanor to a felony of the third degree. Id.; see also Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon Supp. 2002). In Eakins, the required affirmative finding of family violence was absent. Id. However, the State urged that it could prove that the victim of the prior assault was a family member by extrinsic evidence; namely through the victim's testimony. Id. The court framed the issue as follows: "[D]oes article 42.013 preclude the State from proving the nature of the previous assault in some other manner, as it had necessarily done previously?" Id. at 444. The court then answered its question by holding "the absence of an article 42.013 affirmative finding in a judgment of conviction for a previous assault does not in itself preclude the introduction of extrinsic evidence that the previous assault was committed against a family member." Id. at 445. We agree with Eakins that an article 42.013 affirmative finding of family violence is not the exclusive means of proving a previous conviction for assault against a member of the defendant's family or household. Here, the State proved the identity of the previous assault victim by oral stipulation that the arresting officer (for the previous assault) would testify that the victim was appellant's wife at the time the prior offense was committed. It is the better practice for trial courts to make and enter the required family violence finding in appropriate cases. Id. at 445. However, we hold that the trial court did not err in denying appellant's first motion to quash his indictment because "the absence of an article 42.013 affirmative finding in a judgment of conviction for a previous assault does not in itself preclude the introduction of extrinsic evidence that the previous conviction assault was committed against a family member." Id. Because we conclude that the State's offer of proof, through extrinsic evidence, established appellant's previous conviction for family assault, we hold that the trial court did not act without reference to guiding rules and principles, or in an arbitrary or unreasonable manner. We overrule point of error one. Motion to Exclude Re-litigation of Evidence In point of error two, appellant argues that the trial court erred by denying his "Motion to Exclude Re-litigation of Evidence." Appellant specifically contends that, because the issue of violence against a family or household member was determined in the prior proceeding, the State is collaterally estopped in this case from attempting to prove that the earlier case involved the assault of a family member. Texas law does not support appellant's argument. Under the doctrine of collateral estoppel, when an issue of ultimate fact has already been determined by a valid and final judgment, then the issue cannot again be litigated between the same parties in any future lawsuits. Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 1194 (1970); Headrick v. State, 988 S.W.2d 226, 228 (Tex. Crim. App. 1999). In Cagle v. State, 77 S.W.3d 344 Tex. App.--Houston [14th Dist.] 2002, no pet.), the defendant was charged with assault of a family member. Id. at 346. The defendant's indictment included an enhancement paragraph alleging a prior assault against a family member. Id. However, because the judgment in the prior case did not include an affirmative finding of family violence, the trial court granted the defendant's motion to suppress any evidence showing that the prior assault was committed against a household member. Id. at 346-47. Reversing the trial court's decision, the Fourteenth Court of Appeals held that, because the relationship between the defendant and the victim of the previous assault was not litigated or determined in the prior prosecution, collateral estoppel did not prevent that issue from being litigated in the later case. Id. at 348. The information, in Cagle, charging the defendant for a previous assault did not allege family violence. Cagle, 77 S.W.3d at 348. As a result, the judgment had a "N/A" circled next to family violence, i.e. rather than "Yes" or "No." Id. Under these circumstances, an "N/A" notation for family violence could only be interpreted to signify that family violence was not an issue in the prior case. Id. Therefore, since the issue had clearly not been litigated, collateral estoppel did not apply. Here, as in Cagle, appellant's information from the prior case does not allege family violence. Thus, the "N/A" notation on appellant's judgment cannot be interpreted to mean that family violence was an issue in the prior assault case. We conclude the trial court did not err by denying appellant's motion to suppress, thus allowing the State to prove in this case that the prior assault was for family violence. We overrule point of error two. Sufficiency of Evidence Appellant argues, in point of error three, that the evidence is legally insufficient to support the trial court's finding of true to the enhancement paragraph. Specifically, appellant alleges that the State's oral stipulation supporting the enhancement allegation "fails as proof beyond a reasonable doubt" that his prior assault was committed against a household member. We disagree. The State is required to prove the allegations in an enhancement paragraph beyond a reasonable doubt. Williams v. State, 980 S.W.2d 222, 226 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd); cf. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt). The purpose of an enhancement paragraph is to give a defendant notice of the prior convictions the State intends to use to enhance punishment. Id. However, enhancement paragraphs need not be pleaded with the same specificity as the primary offense. Earl v. State, 870 S.W.2d 669, 671 (Tex. App.--Houston [1st Dist.] 1994, no pet.). The State offered an oral stipulation in support of the enhancement paragraph, to which appellant agreed without objection. It provided: [D]eputy Thomas Swartz with the Harris County Sheriff's Department was also prepared to present testimony under oath that he's familiar both with the defendant and his ex-wife and Glori Marshal-I mean Morales. And that he was the arresting officer in the underlying family violence case in trial cause number 9701177 where the defendant was found guilty of Class C assault. And he would testify that he was familiar with Miss Marshal [sic] as being the wife of the defendant Kevin Collesano [appellant] on January 9, 1997. In support of his argument, appellant contends that the State's evidence failed to establish: (1) that Glori Morales was the same person as named in the 1997 complaint; (2) that appellant was the same person previously convicted for assault; (3) that Glori Morales was a household member in 1997 (or anytime); (4) that Glori Morales was the wife of appellant on November 9, 1997 (the date of the prior assault as listed on appellant's information); and (5) that the date of the prior assault conviction was accurate (date listed on the judgment-in trial cause number 9701177- is February 21, 1997, while the date alleged in the enhancement paragraph is March 21, 1997). (5) We first address issues one and two of appellant's offer of proof. It is the rule that stipulations are reasonably and liberally construed with a view to effectuate the party's intentions. Bolin v. State, 475 S.W.2d 241, 243 (Tex. Crim. App. 1972). The trial court, as trier of fact, may draw reasonable inferences and deductions from stipulated facts. Moore v. State, 981 S.W.2d 701, 705 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd) (citing Yorko v. State, 699 S.W.2d 224, 226 Tex. Crim. App. 1985)). Here, the stipulation included testimony that the arresting officer for the 1997 assault was familiar with appellant and Glori Morales, and that Morales was appellant's wife on January 9, 1997 (date which the State claims the prior assault was committed). Thus, viewing the evidence in the light most favorable to the verdict, we conclude that the trial court, as trier of fact, could reasonably deduct that appellant and Morales were the same people involved in the 1997 assault. We now turn to issues three, four, and five of appellant's offer of proof. It is well settled that a defendant has the right to notice of acts he is alleged to have committed. See Daniels v. State, 754 S.W.2d 214, 217 (Tex. Crim. App. 1988). The text of the indictment must provide, in plain and intelligible language, information upon which a defendant may prepare his defense. See State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon Supp. 2002) (defining sufficiency required in an indictment). If the proof fails to correspond with the enhancement allegations, the punishment cannot be legally enhanced. Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981). However, a variance between the allegations in the indictment (which includes the enhancement paragraph), and the proof presented at trial is material and fatal only if the defendant shows surprise or prejudice. Earl v. State, 870 S.W.2d at 671. Absent proof of prejudicial surprise, a variance will not require reversal. Williams, 980 S.W.2d at 226. A variance is a disagreement or discrepancy between the allegations of the charging instrument and the State's trial proof. 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.151 (2001). A variance arises when the State's evidence proves that the defendant committed the crime as defined in the statute creating it but proves the commission of the crime in a manner that varies from the specific allegations in the charging instrument. Id. We hold that issues three, four, and five of appellant's offer of proof comprise a class of variances. After considering all the evidence, we conclude appellant has offered no evidence to show surprise or prejudice, and thus he fails to show grounds for reversal. Williams, 980 S.W.2d at 226. We overrule point of error three. Second Motion to Quash Enhancement Appellant, in point of error four, argues that the trial court erred by denying his second motion to quash the enhancement paragraph of his indictment. Because the complaint and information in trial cause number 9701177 (appellant's prior assault case) alleged that the assault occurred on November 9, 1997, (6) but the plea and judgment were entered on February 21, 1997 (eight months earlier), appellant contends that his judgment was void. (7) A defect of substance in a charging instrument does not automatically render a judgment void. Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998). An indictment or information flawed by a defect of substance, but which purports to charge an offense, is not fundamentally defective and, in the absence of a pretrial objection, will support a conviction. Id. at 19; Thompson v. State, 44 S.W.3d 171, 176, (Tex. App.--Houston [14th Dist.] 2001, no pet.). Here, appellant's prior complaint and information charged him with assault on or about November 9, 1997, while his plea and judgment were entered on February 21, 1997. Appellant concedes that he did not object to the defect (impossible date) in the indictment (now used for enhancement purposes) before his trial began in 1997. Accordingly, appellant has waived his right to object on appeal. See Tex. Code Crim. Proc. art. 1.14(b) (Vernon Supp. 2002). We conclude the trial court did not err in denying appellant's second motion to quash the indictment. We overrule point of error four. Conclusion We affirm the trial court's judgment. Sherry J. Radack Justice Panel consists of Justices Nuchia, Radack, and Price. (8) Do not publish. Tex. R. App. Proc. 47. 1. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2002). 2. The effect of the enhancement paragraph was to upgrade the punishment from a Class A misdemeanor to a felony of the third degree. Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon Supp. 2002). The trial court denied appellant's motions to quash the enhancement paragraph of the indictment and to exclude relitigation of evidence from a previous conviction. 3. In trial cause number 9701177, appellant pleaded no contest pursuant to a plea bargain recommendation of a Class C Misdemeanor and $200 fine. 4. Section 22.01 includes Class C Misdemeanor assault by offensive physical contact. Tex. Pen. Code. Ann § 22.01(b)(2) (Vernon Supp. 2002). 5. See Benton v. State, 770 S.W.2d 946 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd) (citing Thompson v. State, 563 S.W.2d 247, 251 (Tex. Crim. App. 1978) for the proposition that a discrepancy between date in the allegation and the date in the State's proof is not fatal). 6. The information and indictment prepared for appellant's 1997 offense reflect a process date of January 9, 1997. 7. For over one hundred years Texas courts held that defects of substance contained in an indictment rendered it "fundamentally defective" and could be raised at any time. Fisher v. State, 887 S.W.2d 49, 54 (Tex. Crim. App. 1994); see. e.g., Studer v. State, 799 S.W.2d 263, 266-67 (Tex. Crim. App. 1990). However, frustration over the ability of a defendant to raise substantive defects in the indictment for the first time on appeal led to the passing of an amendment to the Texas Code of Criminal Procedure, effective December 1, 1985. Fisher, 887 S.W.2d at 54. Prior to the 1985 amendments, an indictment alleging the date of an offense that was subsequent to date of indictment was fundamentally defective. Fisher, 887 S.W.2d 49, 62 n.8 (citing Ex Parte Chance, 601 S.W.2d 356 (Tex. Crim. App. 1980)). However, the Texas Court of Criminal Appeals has since construed the amendment to article 1.14(b) as providing that the defects of substance or form contained in an indictment must be objected to at trial or are waived. Fisher, 887 S.W.2d 49, 54; see Tex. Code Crim. Proc. art. 1.14(b) (Vernon Supp. 2002). 8. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.