Texas Stamp


PD-0800-23 01/31/2024

“Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?”

When granting Zapata deferred for assault family violence, the trial court entered an affirmative family violence finding over Zapata’s objection. 

On appeal, Zapata challenged the finding, arguing that because there is no judgment in deferred cases, there was no judgment to enter the finding into.  See Tex. Code Crim. Proc. art. 42.013 (requiring in “the trial of an offense” that an affirmative family-violence finding be entered in the judgment of the case).  In response, the State first asserted that it was proper because family violence deferred is considered a “conviction” for enhancement purposes in the event of a subsequent family violence case.  See Tex. Penal Code § 22.01(f)(1).  The court of appeals sided with Zapata.  Despite the possible future status of the deferred case, its present status does not qualify as a “judgment,” as defined in Tex. Code Crim. Proc. art. 42.01 § 1 as a “conviction or acquittal.”  And, notably, Tex. Code Crim. Proc. art. 42A.105, which lists authorized affirmative findings for deferred, does not include family violence.  

Alternatively, the State argued that the trial judge had the discretionary authority to enter the finding as a “reasonable condition” of deferred.  See Tex. Code Crim. Proc. art. 42A.104(a).  The court rejected this argument, too.  The affirmative finding isn’t a condition that could be “violated” by Zapata as a basis for revocation.  However, applying the “any theory applicable” to uphold a trial court’s decision, the court held that the finding has significance independent of a direct violation of a term of supervision.  Because Tex. Code Crim. Proc. art. 42A.504(b) requires a defendant to pay $100 to a family violence center in supervision cases in which there has been a court determination of family violence, articles “42A.104(a) and 42A.504(b), operating together, gave the trial court discretion to make an affirmative finding of family violence in this case.”

Zapata contends that the lower court’s combined reading of articles 42A.104(a) and 42A.504(b) is wrong, given the plain language of articles 42.01 § 1 and 42A.105.  He maintains that a condition of supervision has nothing to do with an affirmative finding, which is a factual finding attached to a judgment.

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