Rudy Zapata v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 23, 2023
• Docket: 04-22-00434-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00434-CR

Rudy ZAPATA, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 13, Bexar County, Texas Trial Court No. 644950 Honorable Rosie S. Gonzalez, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Sandee Bryan Marion, Chief Justice (Ret.) 1

Delivered and Filed: August 23, 2023

AFFIRMED

Rudy Zapata appeals the trial court’s affirmative finding of family violence entered after

the trial court ordered deferred adjudication for the offense of assault causing bodily injury-

married. Although the applicable statutes do not make entry of such a finding mandatory, and a

finding is not a “condition of deferred adjudication community supervision,” we nevertheless

1 The Honorable Sandee Bryan Marion, Chief Justice (Ret.) of the Fourth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE §§ 74.003, 75.002, 75.003. 04-22-00434-CR

conclude the trial court had the discretion to enter the finding under the circumstances in this case.

We therefore affirm the trial court’s order of deferred adjudication.

BACKGROUND

Zapata was charged with the offense of assault causing bodily injury-married, entered into

a plea agreement to receive deferred adjudication, pled nolo contendere, and went open to the court

on the other punishment terms. The State recommended, inter alia, an affirmative finding of family

violence; Zapata asked the court not to enter that finding. The trial court sentenced Zapata to the

agreed-upon terms and entered an affirmative finding of family violence in the order deferring

adjudication. The trial court also granted Zapata permission to appeal.

ANALYSIS

Zapata summarizes his sole argument on appeal as follows:

The trial court erred by entering an affirmative finding of family violence. To make an affirmative finding of family violence, the finding must be entered into a judgment. There is no judgment in deferred adjudication community supervision because the judgment is deferred. Thus, there is no judgment to enter the affirmative finding of family violence into.

The State responds that a grant of deferred adjudication in a family violence case is considered a

conviction and, by extension, a “judgment” into which an affirmative finding of family violence

can be entered. To resolve this question, we turn to the plain language of the governing statutes.

Standard of Review

Courts construe statutes according to their plain meaning, unless doing so would lead to

absurd results the legislature could not have intended. Butler v. State, 189 S.W.3d 299, 302 (Tex.

Crim. App. 2006). We determine the plain meaning of a statute by examining its wording and

structure, construing the words and phrases according to the rules of grammar and usage. Liverman

v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015). We presume that every word “has been

used for a purpose and that each word, phrase, clause, and sentence should be given effect if

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reasonably possible.” State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). Statutory

construction is a question of law we review de novo. Ramos v. State, 303 S.W.3d 302, 306 (Tex.

Crim. App. 2009).

Applicable Law and Application

A “judgment” is statutorily defined as “the written declaration of the court . . . showing the

conviction or acquittal of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1. If a court

determines, “in the trial of an offense under Title 5, Penal Code [governing offenses against the

person],” that the offense involved family violence, “the court shall make an affirmative finding

of that fact and enter the affirmative finding in the judgment of the case.” TEX. CODE CRIM. PROC.

ANN. art. 42.013; see also Butler, 189 S.W.3d at 302.

In contrast to signing a judgment of conviction or acquittal, the trial court may, “after

receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates

the defendant’s guilt, defer further proceedings without entering an adjudication of guilt and place

the defendant on deferred adjudication community supervision.” TEX. CODE CRIM. PROC. ANN.

art. 42A.101(a). “For most purposes, a deferred adjudication does not count as a conviction.”

Middleton v. State, 634 S.W.3d 46, 50 (Tex. Crim. App. 2021). This is because a conviction

generally involves the adjudication of guilt, which is specifically deferred when a court orders

deferred adjudication. See id. According to Zapata, because his adjudication was deferred, there

was no “judgment” in which the trial court could have properly entered an affirmative finding of

family violence.

The State responds that a deferred adjudication order in an assault involving family

violence constitutes a “conviction” as defined by Texas Penal Code section 22.01(f)(1). Under that

subsection, “a defendant has been previously convicted of an [assault involving family violence]

. . . if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere

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in return for a grant of deferred adjudication, regardless of whether the sentence for the offense

was ever imposed or whether the sentence was probated and the defendant was subsequently

discharged from community supervision[.]” TEX. PENAL CODE ANN. § 22.01(f)(1).

We agree with Zapata on this point. By its plain language, section 22.01(f) provides that a

plea of nolo contendere in return for a grant of deferred adjudication operates as a conviction solely

for the purposes of punishment enhancement in a future case. TEX. PENAL CODE § 22.01(f)(1); see

Ex Parte Cooke, 471 S.W.3d 827, 830–31 (Tex. Crim. App. 2015); Rogers v. State, 200 S.W.3d

233, 236 n.3 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). We see no language in section

22.01(f) that permits us to treat Zapata’s plea of nolo contendere as a present “conviction” that

constitutes a judgment in this case. See TEX. PENAL CODE § 22.01(f)(1); cf. Webb v. City of Dallas,

211 S.W.3d 808, 817–18 (Tex. App.—Dallas 2006, pet. denied) (section 22.01(f) “does not state

that a person who receives deferred adjudication for family violence assault has been convicted”

but instead establishes that a “person currently facing a criminal charge has a previous conviction

from a separate charge if the remaining conditions of paragraph (f) are met”). Accordingly, we

conclude the order of deferred adjudication is not a “judgment of the case” that required the trial

court to enter an affirmative finding of family violence. See TEX. CODE CRIM. PROC. art. 42.013.

This conclusion is supported by reference to other statutes that operate in this arena. Tex.

Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 808 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (“[T]o the extent possible, we must harmonize separate articles from the Texas Code of

Criminal Procedure.”); Michael B. Charlton, 6 TEXAS PRACTICE: TEXAS CRIMINAL LAW § 1.4 (2d

ed. 2021) (“Statutes that deal with the same person, thing, or class of persons or things, are

considered to be in pari materia even though they contain no reference to one another and were

passed at different times or at different sessions of the Legislature.”). In particular, the Texas

Legislature has established a list of affirmative findings a court must make when it places on

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deferred adjudication community supervision a defendant charged with certain offenses. TEX.

CODE CRIM. PROC. ANN. art. 42A.105. An affirmative finding of family violence is not included

in this list. See id. Further, this section provides that an affirmative finding shall be filed “with the

papers in the case,” whereas article 42.013 requires an affirmative finding of family violence be

entered “in the judgment of the case.” Compare id., with TEX. CODE CRIM. PROC. art. 42.013.

Because we must presume the legislature used each word intentionally, we conclude it did not

intend to require an affirmative finding of family violence to be entered in an order of deferred

adjudication in an appropriate case. See Hardy, 963 S.W.2d at 520.

The State argues alternatively that even if the trial court was not required to enter an

affirmative finding of family violence in the order of deferred adjudication, it had the discretion to

do so under article 42A.104(a), which provides that a trial judge who places a defendant on

deferred adjudication “may . . . require any reasonable condition of deferred adjudication

community supervision that a judge could impose on a defendant placed on community

supervision for a conviction that was probated and suspended[.]” TEX. CODE CRIM. PROC. ANN.

art. 42A.104(a). But an affirmative finding of family violence is a finding of fact, not a condition

of deferred adjudication community supervision that could be violated. To the extent the

affirmative finding of family violence operated as a condition that could be violated and lead to

adjudication, we agree the trial court lacked the discretion to enter it as a condition of Zapata’s

deferred adjudication. See TEX. CODE CRIM. PROC. ANN. art. 42A.108 (“(a) On violation of a

condition of deferred adjudication community supervision imposed under Article 42A.104, the

defendant may be arrested and detained as provided in Article 42A.751. (b) The defendant is

entitled to a hearing limited to a determination by the court of whether the court will proceed with

an adjudication of guilt on the original charge.”). But that does not mean that the trial court wholly

lacked discretion to enter the finding. And we are required to “uphold the trial court’s ruling if that

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ruling is reasonably supported by the record and is correct on any theory of law applicable to the

case.” Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010).

As the State notes, under article 42A.104(a), the trial court has the authority to “require

any reasonable condition of deferred adjudication community supervision that a judge could

impose on a defendant placed on community supervision for a conviction that was probated and

suspended. . . .” Article 42A.504 sets out such conditions for offenses involving family violence.

Subsection (b) provides, “If a judge grants community supervision to a defendant convicted of an

offense under Title 5, Penal Code, that the court determines involves family violence, the judge

shall require the defendant to pay a fine of $100 to a family violence center that: (1) receives state

or federal funds; and (2) serves the county in which the court is located.” TEX. CODE CRIM. PROC.

ANN. art. 42A.504(b). Thus, an affirmative finding has independent relevance even outside the

context of Texas Penal Code section 22.01(f)(1). Cf. Sampson v. State, 983 S.W.2d 842, 843, (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d) (holding affirmative finding of a deadly weapon “is

not applicable” to an order of deferred adjudication because the purpose of the finding is to aid

TDCJ in calculating parole eligibility only, and parole eligibility only applies to persons who are

imprisoned). We conclude 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.

Finally, the finding in this case is supported by Zapata’s plea of no contest to the

information which specifically alleged an assault with bodily injury married/cohabitating. See TEX.

FAM. CODE ANN. § 71.004 (defining “family violence” to include “an act by a member of a family

or household against another member of the family or household”). At the plea hearing, the trial

court recited the evidence of the assault upon which it made the family violence finding. When

questioned by the court as to why there was confusion about the trial court’s authority to enter the

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finding, Zapata’s counsel acknowledged that she had agreed to family violence findings in orders

for deferred adjudication in previous cases:

THE COURT: I don’t know why this is any different than any other plea, [counsel].

[COUNSEL]: Well, I think what makes this different, Your Honor, is that in previous pleas, we had not -- we had agreed to the Affirmative Finding of Family Violence, and so the -- the -- what makes this plea a little different is that the -- the State and I have gone open to the Court for sentencing.

We agree that going open to the court makes all the difference. By going open to the court, Zapata

ultimately left the decision to make this finding to the court. This is especially important because

Zapata was repeatedly given the opportunity to withdraw the plea, even after the trial court

informed him it was going to impose the affirmative finding. He ultimately acknowledged, “We

have had an agreement for the deferred adjudication, and we asked the Court to sentence Mr.

Zapata, and we asked the Court to find the terms of the sentence as they see fit.”

A deferred disposition is discretionary, not a matter of right. TEX. CODE CRIM. PROC. ANN.

art. 42A.101 (“if in the judge’s opinion the best interest of society and the defendant will be served,

the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding

that it substantiates the defendant’s guilt, defer further proceedings without entering an

adjudication of guilt and place the defendant on deferred adjudication community supervision”).

This is not a case where the trial court unilaterally added non-negotiated terms to a plea-bargain

agreement. Cf. Jones v. State, 600 S.W.3d 94, 101 (Tex. App.—Dallas 2020, pet. ref’d) (deleting

deadly-weapons findings in deferred-adjudication orders where written plea agreements specified

that there would be no deadly-weapon findings). Although we agree with Zapata that a trial court

is not required to enter a family violence finding and that a family violence finding is not a

condition of deferred adjudication community supervision, we disagree that the trial court, in an

open plea, wholly lacked discretion to enter a finding before adjudication.

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CONCLUSION

We affirm trial court’s order of deferred adjudication.

Beth Watkins, Justice

DO NOT PUBLISH

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