Columbus, Bryan William

10/16/25

PD-0538-25

  1. “Given the distinct ‘make’ and ‘enter’ textual requirements of Article 42.013, and the due process functions they serve, did the court of appeals err in deciding that an affirmative finding of family-violence [AFFV] may appear for the first time in a written judgment even if a defendant receives no opportunity to object before the finding is entered on a judgment? (2 RR 1-29).”
  2. “Given the largely irrevocable and undeniably harmful consequences that flow directly from the entry of an AFFV, did the court of appeals err in deciding that such a finding is not part of a defendant’s sentence? (2 RR 1-29).”

A jury found Columbus guilty of assaulting his common-law wife.  The trial court didn’t orally pronounce an affirmative family violence finding, but it was included in the judgment. 

On appeal, Columbus argued that the finding was improper.  He pointed to Tex. Code Crim. Proc. art. 42.013, which requires a trial court to make an affirmative finding of family violence and “enter” it in the judgment, and to art. 42.02, which requires a sentence to be pronounced in open court.  The court held that nothing in art. 42.013 requires the finding to be orally pronounced.  The court went on to hold that a family violence finding is not part of the sentence.

Columbus argues that the lower court failed to give effect to art. 42.013’s plain requirement that the trial court shall enter a finding only after making an affirmative finding. He also maintains that such a finding should not be entered unless the defendant is given the opportunity to object.  As applied here, he notes that an affirmative finding may be withheld when the charged conduct was not intentional’, or was defensively done.  He points out that his conduct was defensive; thus, a finding could have been withheld, and the opportunity to object should have been given. He adds that because a nunc pro tunc cannot be used to enter a finding omitted at sentencing, a family violence finding added without resorting to a nunc pro tunc should also be impermissible.

Next, Columbus contends that a family violence finding is like a deadly weapon finding.  As such, the trial court, as the factfinder, should have to make an express finding like a factfinder does with a deadly weapon finding.  He also argues that the finding should be treated, for appellate purposes, like an unauthorized license suspension.  Though not part of the sentence, the Court in Burg v. State, 592 S.W.3d 444 (Tex. Crim. App. 2020), reviewed the impropriety claim because Burg didn’t have an opportunity to object.  And here, a family violence finding is far more harmful and permanent than a license suspension