Kenneth L. Cade v. State ( 2003 )

NO. 07-02-0409-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 10, 2003
______________________________
KENNETH L. CADE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 98-460593; HON. RUSTY B. LADD, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant Kenneth L. Cade appeals from an order revoking his community
supervision. Two issues are before us. The first involves whether the trial court abused
its discretion in affirmatively finding that appellant’s commission of the underlying offense
involved domestic violence. The second issue concerns whether the trial court erred by
stating, in its order revoking community supervision, there existed a plea bargain and that
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
the punishment assessed did not exceed that recommended by the State. We modify the
order of the trial court and, as modified, affirm it.
Background
Appellant pled guilty to the offense of assault on April 13, 2000. At that time, he
was adjudicated guilty and sentenced to confinement for 365 days in the Lubbock County
Jail. However, the trial court suspended the sentence and placed appellant on community
supervision for 24 months. Thereafter, the State moved to revoke appellant’s community
supervision, which motion was followed by an amendment. Appellant pled true to all of the
allegations in the motion. Then, the trial court revoked his probation and sentenced him
to confinement for 345 days in the Lubbock County Jail.
Issue One - Affirmative Finding of Domestic Violence
As previously mentioned, appellant argues that the trial court abused its discretion
when it purportedly found that the underlying conviction involved domestic violence. We
overrule the issue.
The purported finding appears in the opening paragraph of the order revoking
community supervision and consists of the following passage: “. . . community supervision
heretofore granted by this Court in this Cause on April 13, 2000, wherein the Defendant
was convicted for the offense of Assault/Domestic Violence . . . .”2 (Emphasis in
original). According to appellant, the italicized phrase constituted an affirmative finding
that he committed domestic violence and, more importantly, the trial court lacked
2
The trial court made no oral pronouncement that the assault was one of domestic violence at the
time it revoked appellant’s probation and assessed his punishment.
2
evidentiary basis to so find. We need not reach the issue for the passage does not
constitute an affirmative finding of domestic violence.
Statute dictates that, in the trial of an offense under Title 5 of the Penal Code (which
includes assault), if the court determines that the offense involved family violence as
defined in §71.01 of the Family Code, then the trial court must make an affirmative finding
of that fact and enter the affirmative finding in the judgment of the case.3 TEX . CODE CRIM .
PROC . ANN . art. 42.013 (Vernon Supp. 2003). However, the mention in a judgment or order
of the offense followed by the phrase “domestic violence” does not constitute an affirmative
finding for purposes of art. 42.013 of the Code of Criminal Procedure. See Ex parte
Hughes, 739 S.W.2d 869, 870-71 (Tex. Crim. App. 1987) (holding that an affirmative
finding with respect to the use or exhibition of a deadly weapon is not merely a recitation
of the offense in the judgment with the words “deadly weapon” attached to the offense);
State v. Eakins, 71 S.W.3d 443, 444 n.1 (Tex. App.--Austin 2002, no pet.) (stating that
although the designation “assault causes bodily injury - DV” suggests the assault involved
domestic violence, the passage did not constitute an affirmative finding of domestic
violence); Tucker v. State, 61 S.W.3d 446, 448-49 (Tex. App.--Amarillo 2001, pet. ref’d)
(holding that the mere recitation of the offense accompanied by the words “deadly weapon”
did not constitute the inclusion in a judgment of an affirmative finding concerning the use
3
Former §71.01 of the Family Code is now found in §71.004 of the Family Code and is defined as
an act by a member of a family or household against another member of the family or household that is
intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably
places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not
include defensive measures to protect oneself. TEX. FAM. CODE ANN. §71.004(1) (Vernon 2002). It also
includes dating violence as defined in §71.0021 of the Family Code. Id. §71.004(3).
3
of a deadly weapon). Rather, there must be a separate and specific affirmative finding
entered in addition to the recitation of the offense for which the defendant has been
convicted. Ex parte Hughes, 739 S.W.2d at 871. That is missing here, and, since it is,
we need not address appellant’s first issue.4
Issue Two - Finding of Plea Bargain
In his second issue, appellant argues that the trial court erred when it included
certain language in its order revoking community supervision. The language in question
appears in the last paragraph of the order above appellant’s fingerprint and states that:
”[t]his plea is the result of plea bargaining between the Defense and the State, and the
punishment herein assessed does not exceed the punishment recommended by the
Prosecutor and as agreed to by the Defendant with advice of his counsel.” According to
appellant, there was no plea bargain nor recommendation as to punishment. The State
agrees with the representation.
A reviewing court has the power to modify incorrect judgments when the necessary
data and information are available to do so. Abron v. State, 997 S.W.2d 281, 282 (Tex.
App.--Dallas 1998, pet. ref’d); Williams v. State, 911 S.W.2d 788, 791 (Tex. App.--San
Antonio1995, no pet.). The language about which appellant complains does not warrant
reversal of the cause. However, given the concession by the State, we have before us the
necessary data and information to correct the error. Thus, we sustain issue two and redact
the verbiage quoted above from the order.
4
The failure of the trial court to make an affirmative finding that family violence was involved in the
offense does not necessarily mean the offense did not involve family violence, and the fact may be proved
at the trial of a subsequent offense for family violence. State v. Eakins, 71 S.W.3d at 445.
4
We modify the order revoking community supervision and delete the following
passage from it: ”[t]his plea is the result of plea bargaining between the Defense and the
State, and the punishment herein assessed does not exceed the punishment
recommended by the Prosecutor and as agreed to by the Defendant with advice of his
counsel.” As modified, the order is also affirmed.
Brian Quinn
Justice
Do not publish.
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