OPINION
ANN CRAWFORD McCLURE, Justice.
The State of Texas appeals from an order dismissing the indictment for lack of jurisdiction.
See
Tex.RApp.P. 44.01(a)(1). We reverse and remand the cause for Meadows to answer the indictment.
FACTUAL SUMMARY
A grand jury indicted Meadows for assaulting Jacqueline Milton by hitting and kicking her and by throwing her into a wall. For enhancement purposes, the indictment included an allegation that Meadows had previously been convicted of an assault offense against a member of his family or household in Cause Number 20020D05960. Meadows filed a motion to dismiss the indictment for lack of jurisdiction. Meadows alleged in the motion that his assault conviction in Cause Number 20020D05960 was not a case involving family violence, and therefore, it could not be used to enhance the current assault of
fense to a felony. He further argued that the district court lacked jurisdiction to hear the primary assault because it was only a misdemeanor.
At the hearing on the motion to dismiss, Meadows offered into evidence the judgment from Cause Number 20020D05960. The judgment reflected that Meadows entered a negotiated plea of guilty to the lesser-included offense of misdemeanor assault. It did not contain an affirmative “family violence” finding. According to the reporter’s record of the guilty plea hearing, Meadows testified that the victim had been his next door neighbor and he had known her for three or four months prior to the assault. At the conclusion of the hearing below, the trial court made a specific factual finding that “[t]he judgment that has been relied upon for the enhancement for the case at bar ... is not a family violence case.” The prosecutor argued that whether the prior conviction involved family violence was a factual matter to be determined at trial, not in a pretrial hearing, and that the court lacked authority to make the factual finding or dismiss the indictment due to claimed insufficiency of the evidence at this stage of the proceedings. The trial court disagreed and granted the motion to dismiss for lack of jurisdiction because the State had not offered any evidence to prove that the prior assault offense involved family violence. The State timely filed its notice of appeal.
STANDARD OF REVIEW
The sufficiency of an indictment is a question of law.
State v. Moff,
154 S.W.3d 599, 601 (Tex.Crim.App.2004). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in an appreciably better position to make the determination, and appellate courts are to conduct a
de novo
review.
Id.; see Guzman v. State,
955 S.W.2d 85, 89 (Tex.Crim.App.1997).
IMPROPER DISMISSAL OF THE INDICTMENT
In its sole issue on appeal, the State contends that the trial court erred by dismissing the indictment for lack of jurisdiction for two reasons: (1) proof of the enhancement allegation is an evidentia-ry matter to be determined at trial and is not a jurisdictional issue to be determined pre-trial; and (2) even if the State is unable to prove at trial that the prior assault conviction involved family violence, the trial court is not deprived of jurisdiction of the misdemeanor offense. We agree with both arguments.
An assault offense may be enhanced from a class A misdemeanor to a third-degree felony if the offense is committed against:
[A] member of the defendant’s family or household, if it is shown
on the trial
of the offense that the defendant has previously been convicted of an offense against a member of the defendant’s family or household under this section. [Emphasis added].
Tex.Penal Code Ann. § 22.01 (b)(2)(Vernon Supp.2004-05). In a subsequent proceeding, the State may rely on extrinsic evidence to prove that a previous assault was committed against a family or household member.
See Manning v. State,
112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd);
Mitchell v. State,
102 S.W.3d 772, 775 (Tex.App.-Austin 2003, pet. ref'd);
Goodwin v. State,
91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.);
see also State v. Cagle,
77 S.W.3d 344, 348 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd)(holding notation on prior judgment that family violence was “not applicable or not available” did not amount
to a determination that prior assault was not committed against household or family member; therefore State was not collaterally estopped from litigating that issue at trial).
The indictment in this case alleged that Meadows:
[W]as previously convicted of an offense against a member of defendant’s family or household under Section 22.01 of the Texas Penal Code, to wit: on the 10th day of March, 2003, in cause number 20020D05960 in the 168th District Court, of El Paso County, Texas....
The presentment of an indictment vests a district court with jurisdiction. Tex. Const, art. V, § 12(b). District courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). When the face of the indictment charges a felony, the district court does not lose jurisdiction if the State is only able to prove a misdemeanor at trial.
See
Tex.Code Crim.Proc.Ann. art. 4.06;
Jones v. State,
502 S.W.2d 771, 773-74 (Tex.Crim.App.1973).
A charging instrument that is valid on its face and returned by a legally constituted grand jury is sufficient to mandate trial of the charge on its merits. While no witnesses testified at the hearing on Appellant’s motion to dismiss, the sufficiency of an indictment cannot be supported or defeated by evidence at a pretrial hearing.
State v. Rosenbaum,
910 S.W.2d 934, 948 (Tex.Crim.App.1994)(dissenting op. adopted on reh’g);
State v. Boado,
8 S.W.3d 15, 17 (Tex.App.-Houston [1st Dist.] 1999),
pet. dism’d improvidently granted,
55 S.W.3d 621 (Tex.Crim.App.2001). An indictment must be facially tested under the law as a pleading.
Rosenbaum,
910 S.W.2d at 948.
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OPINION
ANN CRAWFORD McCLURE, Justice.
The State of Texas appeals from an order dismissing the indictment for lack of jurisdiction.
See
Tex.RApp.P. 44.01(a)(1). We reverse and remand the cause for Meadows to answer the indictment.
FACTUAL SUMMARY
A grand jury indicted Meadows for assaulting Jacqueline Milton by hitting and kicking her and by throwing her into a wall. For enhancement purposes, the indictment included an allegation that Meadows had previously been convicted of an assault offense against a member of his family or household in Cause Number 20020D05960. Meadows filed a motion to dismiss the indictment for lack of jurisdiction. Meadows alleged in the motion that his assault conviction in Cause Number 20020D05960 was not a case involving family violence, and therefore, it could not be used to enhance the current assault of
fense to a felony. He further argued that the district court lacked jurisdiction to hear the primary assault because it was only a misdemeanor.
At the hearing on the motion to dismiss, Meadows offered into evidence the judgment from Cause Number 20020D05960. The judgment reflected that Meadows entered a negotiated plea of guilty to the lesser-included offense of misdemeanor assault. It did not contain an affirmative “family violence” finding. According to the reporter’s record of the guilty plea hearing, Meadows testified that the victim had been his next door neighbor and he had known her for three or four months prior to the assault. At the conclusion of the hearing below, the trial court made a specific factual finding that “[t]he judgment that has been relied upon for the enhancement for the case at bar ... is not a family violence case.” The prosecutor argued that whether the prior conviction involved family violence was a factual matter to be determined at trial, not in a pretrial hearing, and that the court lacked authority to make the factual finding or dismiss the indictment due to claimed insufficiency of the evidence at this stage of the proceedings. The trial court disagreed and granted the motion to dismiss for lack of jurisdiction because the State had not offered any evidence to prove that the prior assault offense involved family violence. The State timely filed its notice of appeal.
STANDARD OF REVIEW
The sufficiency of an indictment is a question of law.
State v. Moff,
154 S.W.3d 599, 601 (Tex.Crim.App.2004). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in an appreciably better position to make the determination, and appellate courts are to conduct a
de novo
review.
Id.; see Guzman v. State,
955 S.W.2d 85, 89 (Tex.Crim.App.1997).
IMPROPER DISMISSAL OF THE INDICTMENT
In its sole issue on appeal, the State contends that the trial court erred by dismissing the indictment for lack of jurisdiction for two reasons: (1) proof of the enhancement allegation is an evidentia-ry matter to be determined at trial and is not a jurisdictional issue to be determined pre-trial; and (2) even if the State is unable to prove at trial that the prior assault conviction involved family violence, the trial court is not deprived of jurisdiction of the misdemeanor offense. We agree with both arguments.
An assault offense may be enhanced from a class A misdemeanor to a third-degree felony if the offense is committed against:
[A] member of the defendant’s family or household, if it is shown
on the trial
of the offense that the defendant has previously been convicted of an offense against a member of the defendant’s family or household under this section. [Emphasis added].
Tex.Penal Code Ann. § 22.01 (b)(2)(Vernon Supp.2004-05). In a subsequent proceeding, the State may rely on extrinsic evidence to prove that a previous assault was committed against a family or household member.
See Manning v. State,
112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd);
Mitchell v. State,
102 S.W.3d 772, 775 (Tex.App.-Austin 2003, pet. ref'd);
Goodwin v. State,
91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.);
see also State v. Cagle,
77 S.W.3d 344, 348 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd)(holding notation on prior judgment that family violence was “not applicable or not available” did not amount
to a determination that prior assault was not committed against household or family member; therefore State was not collaterally estopped from litigating that issue at trial).
The indictment in this case alleged that Meadows:
[W]as previously convicted of an offense against a member of defendant’s family or household under Section 22.01 of the Texas Penal Code, to wit: on the 10th day of March, 2003, in cause number 20020D05960 in the 168th District Court, of El Paso County, Texas....
The presentment of an indictment vests a district court with jurisdiction. Tex. Const, art. V, § 12(b). District courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). When the face of the indictment charges a felony, the district court does not lose jurisdiction if the State is only able to prove a misdemeanor at trial.
See
Tex.Code Crim.Proc.Ann. art. 4.06;
Jones v. State,
502 S.W.2d 771, 773-74 (Tex.Crim.App.1973).
A charging instrument that is valid on its face and returned by a legally constituted grand jury is sufficient to mandate trial of the charge on its merits. While no witnesses testified at the hearing on Appellant’s motion to dismiss, the sufficiency of an indictment cannot be supported or defeated by evidence at a pretrial hearing.
State v. Rosenbaum,
910 S.W.2d 934, 948 (Tex.Crim.App.1994)(dissenting op. adopted on reh’g);
State v. Boado,
8 S.W.3d 15, 17 (Tex.App.-Houston [1st Dist.] 1999),
pet. dism’d improvidently granted,
55 S.W.3d 621 (Tex.Crim.App.2001). An indictment must be facially tested under the law as a pleading.
Rosenbaum,
910 S.W.2d at 948. In the pretrial setting, there is neither constitutional nor statutory authority for a defendant to test — or for a trial court to determine — the sufficiency of evidence to support or defeat an element alleged in the indictment.
Id.; Boado, 8
S.W.3d at 17;
State v. Habern,
945 S.W.2d 225, 226 (Tex.App.-Houston [1st Dist.] 1997, no pet.). If the trial court conducts such a hearing, it errs.
Rosenbaum,
910 S.W.2d at 948.
The indictment against Meadows alleged all of the elements of assault and contained a facially valid enhancement allegation. The trial court lacked authority to conduct a hearing to determine whether the offense used for enhancement purposes was, in fact, an offense involving family violence. The court could not require the State to marshal its proof in order to avoid dismissal of the indictment. The trial court erred in making a factual determination regarding the sufficiency of the evidence to prove the enhancement allegation and by dismissing the indictment. Despite the lack of an affirmative finding in the prior judgment, the State will be permitted to offer extrinsic evidence at trial that the assault was committed against a member of Meadows’ family or household. In the event that the evidence adduced at trial is insufficient to prove the enhancement paragraph, the district court will not be deprived of jurisdiction. The State’s sole issue on appeal is sustained. We reverse and remand the cause to the trial court for Meadows to answer the indictment.