Manning Jr., Charles Edward v. State

Court of Appeals of Texas·Decided July 24, 2003·No. 14-02-00892-CR·Published

Opinion

Affirmed and Opinion filed July 24, 2003

Affirmed and Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00892-CR

____________

CHARLES EDWARD MANNING, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________________

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 909,673

___________________________________________________________

O P I N I O N

            Appellant Charles Edward Manning, Jr. appeals his felony assault conviction, arguing: (1) the trial court erred by denying appellant’s motion to quash the indictment; and (2)-(3) the evidence is legally and factually insufficient to prove he assaulted a household member.  We affirm.


                              I.  Factual and Procedural Background

            Appellant and the complainant, Mary Pearl Vallery, were involved in an “off and on” romantic relationship for at least twelve years before his arrest for the present offense.  The record shows appellant lived with Vallery whenever they were romantically involved.  According to trial testimony, a few days before Thanksgiving of 2001, appellant severely beat Vallery because he believed she was involved with another man.

            Appellant was arrested and charged with assault of a household member.  In the indictment, the State also alleged that appellant was convicted in 1996 of an assault committed against a household member, to enhance the present assault from a misdemeanor to a third-degree felony under section 22.01(b)(2) of the Penal Code.  See Tex. Pen. Code § 22.01(b)(2).  Uncontroverted trial testimony showed appellant committed the 1996 assault against Vallery.

            The jury found appellant guilty and the trial court sentenced him to fifty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. 

II.  Issues Presented

            Appellant presents the following issues for review:

(1)       Did the trial court erroneously deny appellant’s motion to quash the indictment because the 1996 conviction used for enhancement occurred before the effective date of the enhancement statute and because the judgment supporting the 1996 conviction does not include an affirmative finding of family violence?

(2)       Is the evidence legally sufficient to prove appellant and the complainant were members of the same household at the time of the instant offense, and at the time of the 1996 assault?

(3)       Is the evidence factually sufficient to prove appellant and the complainant were members of the same household at the time of the instant offense, and at the time of the 1996 assault?

III.  Analysis and Discussion

A.        Motion to Quash Indictment

            Appellant argues the trial court lacked jurisdiction and should have granted his motion to quash the indictment for two reasons: (1) because the 1996 conviction used to enhance under section 22.01 (b)(2) of the Penal Code occurred before the September 1, 1999, effective date of the enhancement statute; and (2) because the  judgment supporting the 1996 conviction lacks an affirmative finding of family violence.  We review a trial court’s ruling on a motion to quash an indictment for an abuse of discretion.  State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). 

            In 1999, the Legislature amended section 22.01(b)(2) of the Penal Code to provide that an assault is a third-degree felony if it is committed against a member of the defendant’s family or household, and “it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.”  See Act of June 18, 1999, 76th Leg., R.S., ch. 1158, § 2, 1999 Tex. Gen. Laws 4063.  The statute also included a clause making its application prospective:

The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1999] of this Act.  For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

Id. at 4064.  According to appellant, this clause prohibits the State from using a conviction that predates September 1, 1999, for enhancement under section 22.01(b)(2).  Appellant essentially argues the date of the previous conviction is an element of the current offense and that t

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