PD-1339-18 03/20/2019
“Is a prior conviction for family violence under Tex. Penal Code § 22.01(b)(2)(A) always a guilt issue simply because it can be, and often is, used as a jurisdictional element?”
Holoman was indicted for felony assault by impeding a household member’s breath or circulation. Assaulting a household member can also be a felony if the defendant has a prior family-violence conviction, which Holoman had. Rather than charging Holoman with this alternate felony, the State set out the prior in an enhancement notice. In the jury charge, the trial court submitted misdemeanor assault (plus the victim’s status as a family/household member) as a lesser-included offense, and the jury convicted on this lesser. Then for the first time at punishment, the State offered the family-violence prior, which the judge found true, returning the punishment range to a third-degree felony. Holoman was then sentenced as a habitual offender on proof of two other prior sequential felonies.
On appeal, Holoman argued that the family-violence prior was an element of third-degree felony assault that had to be proven at the guilt phase. The court of appeals agreed and held that the jury had only convicted Holoman of misdemeanor assault and thus his 25-year prison sentence was illegal.
The State contends that the prior is ordinarily a guilt issue when the State charges recidivist family-violence assault. Tex. Code of Crim. Proc. Article 36.01 authorizes treating prior offenses as elements of the offense unless they are “alleged for enhancement only” and are “not jurisdictional.” Here, the prior met both these conditions because the assault by impeding was what vested jurisdiction in the district court. The State contends that, contrary to the court of appeals’s holding, a prior offense does not immutably belong to one phase of trial or the other. Instead, as Article 36.01 indicates, it should depend on how it is used in the case.
