Court of Appeals of Texas, Eighth District, El Paso
from 168th District Court of El Paso County, Texas (TC#
Barajas, C.J., McClure, and Chew, JJ.
CRAWFORD McCLURE, JUSTICE
State of Texas appeals from an order dismissing the
indictment for lack of jurisdiction. See
Tex.R.App.P. 44.01(a)(1). We reverse and remand the cause for
Meadows to answer the indictment.
jury indicted Meadows for assaulting Jacqueline Milton by
hitting and kicking her and by throwing her into a wall. For
enhancement purposes, the indictment included an allegation
that Meadows had previously been convicted of an assault
offense against a member of his family or household in Cause
Number 20020D05960. Meadows filed a motion to dismiss the
indictment for lack of jurisdiction. Meadows alleged in the
motion that his assault conviction in Cause Number
20020D05960 was not a case involving family violence, and
therefore, it could not be used to enhance the current
assault offense to a felony. He further argued that the
district court lacked jurisdiction to hear the primary
assault because it was only a misdemeanor.
hearing on the motion to dismiss, Meadows offered into
evidence the judgment from Cause Number 20020D05960. The
judgment reflected that Meadows entered a negotiated plea of
guilty to the lesser-included offense of misdemeanor assault.
It did not contain an affirmative "family violence"
finding.  According to the reporter's record of
the guilty plea hearing, Meadows testified that the victim
had been his next door neighbor and he had known her for
three or four months prior to the assault. At the conclusion
of the hearing below, the trial court made a specificfactual
finding that "[t]he judgment that has been relied upon
for the enhancement for the case at bar . . . is not a family
violence case." The prosecutor argued that whether the
prior conviction involved family violence was a factual
matter to be determined at trial, not in a pre-trial hearing,
and that the court lacked authority to make the factual
finding or dismiss the indictment due to claimed
insufficiency of the evidence at this stage of the
proceedings. The trial court disagreed and granted the motion
to dismiss for lack of jurisdiction because the State had not
offered any evidence to prove that the prior assault offense
involved family violence. The State timely filed its notice
sufficiency of an indictment is a question of law. State
v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). When
the resolution of a question of law does not turn on an
evaluation of the credibility and demeanor of a witness, then
the trial court is not in an appreciably better position to
make the determination, and appellate courts are to conduct a
de novo review. Id.; see Guzman v.
State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
DISMISSAL OF THE INDICTMENT
sole issue on appeal, the State contends that the trial court
erred by dismissing the indictment for lack of jurisdiction
for two reasons: (1) proof of the enhancement allegation is
an evidentiary matter to be determined at trial and is not a
jurisdictional issue to be determined pre-trial; and (2) even
if the State is unable to prove at trial that the prior
assault conviction involved family violence, the trial court
is not deprived of jurisdiction of the misdemeanor offense.
We agree with both arguments.
assault offense may be enhanced from a class A misdemeanor to
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 previously been convicted of an offense against
a member of the defendant's family or household under
this section. [Emphasis added].
Code Ann. §22.01(b)(2)(Vernon Supp. 2004-05). In a
subsequent proceeding, the State may rely on extrinsic
evidence to prove that a previous assault was committed
against a family or household member. See Manning v.
State, 112 S.W.3d 740, 744 (Tex.App.--Houston [14th
Dist.] 2003, pet. ref'd); Mitchell v. State, 102
S.W.3d 772, 775 (Tex.App.--Austin 2003, pet. ref'd);
Goodwin v. State, 91 S.W.3d 912, 919 (Tex.App.--Fort
Worth 2002, no pet.); see also State v. Cagle, 77
S.W.3d 344, 348 (Tex.App.--Houston [14th Dist.] 2002, pet.
ref'd)(holding notation on prior judgment that family
violence was "not applicable or not available" did
not amount to ...