Texas Stamp


PD-1211-20 03/31/2021

“The Beaumont Court of Appeals erred in finding the evidence legally sufficient to prove Petitioner had a qualifying prior conviction for purposes of Texas Penal Code § 22.01(b)(2)(A).


A. Petitioner was entitled to a directed verdict; and

B. Petitioner’s objections to the § 22.01(b)(2)(A) jury charge were erroneously denied.”

Johnson was charged with family-violence impeding-breath assault enhanced to a second-degree felony by a prior family-violence conviction. At the time of the offense in 2018, this was codified in Tex. Penal Code § 22.01(b-2); it now appears in § 22.01(b-3). The enhancement applies if it is shown that the defendant has a prior conviction for certain Texas offenses, including assault. Under § 22.01(f)(2), a conviction under the laws of another state with elements substantially similar to a qualifying Texas offense “is” a conviction under that Texas offense.

In addition to the other elements of the offense, the State introduced a docket sheet showing Johnson was convicted of third-degree domestic battering in Arkansas. Both the Arkansas arresting officer and the victim testified about the parties’ dating relationship at the time of the offense. No witness testified to the similarities between the Arkansas offense and a qualifying Texas offense. The jury convicted.

On appeal, Johnson argued that the State failed to prove that the Arkansas conviction was for one of the qualifying Texas offenses and that a Texas offense was required. Without acknowledging Penal Code § 22.01(f)(2), he argued in the alternative that the jury had no evidence before it to conclude that the Arkansas battery was the equivalent of one of the qualifying Texas offenses. The State argued this was a legal issue for the judge—not a fact issue for the jury. It also asked the court of appeals to take judicial notice of the Arkansas statute, Ark. Code § 5-26-305, which it argued was substantially similar to Texas’s bodily injury assault statute against a family/household member. The court of appeals did not address judicial notice. It pointed to the docket sheet, the two witnesses to Johnson’s arrest and conviction, and that § 22.01(f)(2) permits out-of-state convictions if they are substantial similar to a qualifying Texas offense. It then determined that a rational factfinder could have found all the elements beyond a reasonable doubt.

In its petition for discretionary review, Johnson acknowledges § 22.01(f)(2) and argues the State failed to prove either that he had a qualifying Texas offense or that the Arkansas offense was substantially similar to a qualifying Texas offense. He contends the court of appeals’s conclusion that the jury could have found all the elements beyond a reasonable doubt is “not only erroneous but incredible.” He faults the court of appeals for failing to analyze whether third-degree domestic battery contains substantially similar elements to the relevant Texas offenses.


Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724