Ismiatou Othman v. State ( 2010 )

Affirmed as Reformed and Memorandum Opinion filed July 22, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-00444-CR

Ismiatou Othman, Appellant

v.

The State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1076355

MEMORANDUM OPINION

Appellant Ismiatou Othman seeks modification of the trial court’s judgment in which she was convicted of the offense “Aggravated Assault-Family Member.”  We reform the trial court’s judgment and affirm as reformed. 

Background

Appellant was charged in 2006 with the felony offense of aggravated assault, stemming from an incident involving a member of appellant’s family or household as defined by the Texas Family Code.[1]  Appellant pleaded “guilty” to the charged offense.  The trial court sentenced appellant to two years’ deferred adjudication and made an affirmative finding that the offense “involved family violence,” as contemplated by title 5 of the Texas Penal Code.[2]

In 2008, the State moved to adjudicate appellant’s guilt, alleging that appellant had failed to abide by court-ordered conditions of her probation.  Appellant pleaded “not true” to the allegations in the motion.  Following a hearing on the motion, in which the State presented evidence, the trial court adjudicated appellant’s guilt.  The trial court’s judgment reflects appellant was convicted of “Aggravated Assault—Family Member,” a second degree felony; however, the trial court did not enter an affirmative finding that the offense involved family violence.  The trial court sentenced appellant to three years’ confinement. 

Issue and Analysis

In a single issue, appellant seeks reformation of the trial court’s judgment to reflect a conviction for aggravated assault, noting that the Texas Penal Code does not recognize an offense entitled “Aggravated Assault—Family Member.”  The State agrees that the trial court’s judgment should be reformed to reflect a conviction for aggravated assault.  The parties also agree that an affirmative finding of family violence should be incorporated into the trial court’s judgment

An appellate court may reform a trial court’s judgment to allow the record to “speak the truth” when that court has the “necessary date and information to do so, or make any appropriate order as the law and nature of the case may require.”  French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Article 42.013 of the Texas Code of Criminal Procedure, entitled “Finding of Family Violence,” requires a trial court to enter an affirmative finding of family violence in its judgment if the trial court determines that an offense involves family violence.  See Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006); Butler v. State, 189 S.W.3d 299, 301 n.2 (Tex. Crim. App. 2006) (providing that assault is an offense under article 42.013 that may require an affirmative finding that the offense involved family violence); State v. Eakins, 71 S.W.3d 443, 444 (Tex. App.—Austin 2002, no pet.); see also Tex. Fam. Code Ann. § 71.004 (Vernon 2008) (defining “family violence” as “an act by a member of a family or household against another member of the family or household”).  Mere reference in a trial court’s judgment to the named offense followed by the phrase “family member” is not sufficient to constitute an affirmative finding of family violence under article 42.013.  See Ex parte Hughes, 739 S.W.2d 869, 870–71 (Tex. Crim. App. 1987) (pertaining to affirmative findings involving the phrase “deadly weapon” following recitation of an offense).  Rather, a separate, specific affirmative finding must be entered in addition to the recitation of the offense for which a defendant has been convicted.  Id. at 871.  However, when a judgment is silent regarding family violence, the silence does not necessarily mean that the trial court considered the issue and determined that family violence was not involved.  See Eakins, 71 S.W.3d at 445.

A person commits the offense of assault if that person intentionally, knowingly, or recklessly causes bodily injury to another person.  Tex. Penal Code Ann. § 22.01(a)(1) (Vernon 2003).  The offense becomes aggravated assault if that person commits the offense of assault and causes serious bodily injury or uses or exhibits a deadly weapon during the commission of the assault.  Id. § 22.02(a) (Vernon 2003).  The record reflects that appellant was charged with aggravated assault for causing bodily injury to another by use of a deadly weapon, namely a knife.  See id. §§ 22.02(a)(2), 22.02(b)(1) (defining respectively “assault” and “aggravated assault”).  According to the charging instrument, appellant committed the offense of aggravated assault against a family member or household member, as defined by the Texas Family Code.[3]  See id. §§ 22.02(a)(2), 22.02(b)(1); Tex. Fam. Code Ann. §§ 71.003, 71.005 (defining respectively a member of a family or household).  Appellant pleaded “guilty” to the charged offense, and the trial court, in accepting the plea and ordering deferred adjudication, made an affirmative finding that the charged offense involved family violence, as contemplated by article 42.013 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 42.013; see also Butler, 189 S.W.3d at 301 n.2.  However, the trial court’s judgment adjudicating appellant’s guilt does not include an affirmative finding of family violence and instead reflects improper nomenclature of a conviction for “Aggravated Assault—Family Member.”  See Tex. Penal Code Ann. § 22.02(a); Hughes, 739 S.W.2d at 870–71 (involving judgment that omitted a required affirmative finding).  For this reason, the judgment should be reformed.  We sustain appellant’s sole issue on appeal.

Accordingly, we reform the trial court’s judgment to omit the reference to “Aggravated Assault-Family Member” and to insert in its place language reflecting appellant’s conviction for the offense of aggravated assault and the trial court’s affirmative finding of family violence.  See Tex. R. App. P. 43.2(b); French, 830 S.W.2d at 609. 

The trial court’s judgment is affirmed as reformed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Frost, Boyce, and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] See Tex. Fam. Code Ann. §§ 71.003, 71.005 (Vernon 2008) (defining respectively a member of a “family” and a member of a “household”).

[2] See Tex. Penal Code Ann. § 22.02(a) (Vernon 2003) (reflecting that “aggravated assault” is an offense under title 5 of the Texas Penal Code).

[3] Under the Texas Penal Code, a person commits a first-degree felony offense if that person uses a deadly weapon during the commission of an assault and causes serious bodily injury to another person who is a family or household member, as defined by sections 71.003 or 71.005 of the Texas Family Code.  See Tex. Penal Code Ann. § 22.02(b)(1) (involving aggravated assault against a family member).  However, appellant was charged with causing bodily injury against the complainant by use of a deadly weapon; the record does not reflect that the complainant sustained serious bodily injury as contemplated by section 22.02(b)(1) to convict appellant of an offense under section 22.02(b)(1).  Moreover, the record reflects that appellant was convicted of the second-degree felony of aggravated assault instead of a first-degree felony.  See id. § 22.02(a) (defining aggravated assault).