COLUMBUS v. STATE (2025)

OPINION

Opinion on En Banc Reconsideration

A jury convicted appellant Bryan William Columbus with the offense of assault causing bodily injury. On appeal, Columbus argues the evidence is legally insufficient to disprove he acted in self-defense, and the judgment should be modified to delete the family violence finding. We affirm the judgment.¹

Background

Columbus was charged by information with assault causing bodily injury after police arrested him for striking Amber Estrada with his hand. At trial, the jury heard testimony from San Antonio Police Officer Todd M. Kalk and Detective Victoria Jimenez, who had been dispatched to Amber's apartment after she had called 911. Amber told the 911 operator Columbus had “put his hands on [her]” multiple times and was refusing to leave her apartment. The jury also heard the audio recording of Amber's 911 call, saw pictures depicting bruising and scratches around her neck and cheeks, and heard testimony from Columbus, who claimed he and Amber were “common-law,” lived together at the time of the incident, and was defending himself from her.

The jury found Columbus guilty, and the trial court sentenced him to one-year confinement, probated for one year. The judgment also contained an affirmative finding of family violence. Columbus now appeals.

Self–Defense

Columbus contends the evidence is legally insufficient to disprove he acted in self-defense. For support, he relies on his testimony that he acted in self-defense after Amber woke him up in the middle of the night, pushed him out of bed, and yelled at him “to get out.” He testified when she struck him with closed fists, he grabbed her and pushed her away. According to Columbus, the State did not produce any evidence to refute this self-defense evidence.

Standard of Review

“[I]n a claim of self-defense ․ the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). “The defendant's burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defense issue,” whereas the State's burden of persuasion “requires only that the State prove its case beyond a reasonable doubt.” Id. at 608–09 (quoting Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)) (internal quotations omitted). This means:

[i]n resolving the sufficiency of the evidence issues, we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.

Id. at 609 (alterations in original) (quoting Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)).

Additionally, self-defense is a fact issue for the jury to determine, and “[a] jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory.” Id. (alteration in original) (quoting Saxton, 804 S.W.2d at 914) (internal quotation marks omitted). Moreover, under the general principles governing legal sufficiency, we remain mindful of “the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence,” and we defer to the trier of fact's credibility and weight determinations. Id. at 608 (quoting Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)) (internal quotation marks omitted). We also presume “the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution.” Id.

Applicable Law

“[Texas] Penal Code Section 9.31 provides that, subject to certain exceptions, a person is justified in using force against another ‘when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.’ ” Id. at 606 (quoting Tex. Pen. Code § 9.31(a)). “The use of force is not justified in response to verbal provocation alone, or if the actor provoked the other's use or attempted use of unlawful force.” Id. (citing Tex. Pen. Code § 9.31(b)). “A ‘reasonable belief’ in this context is defined as ‘one that would be held by an ordinary and prudent man in the same circumstances as the actor.’ ” Id. (quoting Tex. Pen. Code § 1.07(a)(42)).

Application

Here, the jury heard testimony from Officer Kalk, who testified he had been dispatched to Amber's apartment after she had called 911 and reported Columbus had “put his hands on [her]” multiple times and was refusing to leave her apartment. Officer Kalk testified when he arrived at Amber's apartment, he detained Columbus and found Amber outside her apartment visibly upset with noticeable bruising around her neck and cheeks. The jury watched a recording of Officer Kalk's body camera, which showed Amber telling him Columbus had been staying with her when he slapped her twice with an open hand.

The jury also heard the recording of Amber's 911 call. During the call, Amber tells the 911 operator Columbus “put his hands on [her]” and slapped her multiple times. The jury also heard Amber and Columbus arguing while Amber was speaking to the 911 operator and Amber screaming, “Get off of me.” During the call, Amber tells the operator Columbus was “still slapping me.”

Detective Victoria Jimenez testified she was also dispatched to the scene, and when she arrived, she spoke to Columbus and Amber and took photographs of them to document any injuries. Detective Jimenez testified she did not observe any injuries on Columbus, but she observed blood underneath one of his fingernails on his right hand. She also testified she asked Columbus whether he had any injuries or was in any pain, and he stated he was not. As to Amber, Detective Jimenez testified she observed several bruises and scratches on Amber's face and neck, and she testified one of the scratches had broken the skin. The photographs she took of Columbus and Amber were admitted into evidence.

Finally, the jury heard testimony from Columbus, who testified Amber woke him up in the middle of the night and started pushing him out of the bed and throwing his cell phone at him. Columbus testified he left the bedroom and went to the living room to distance himself from her, but Amber came into the living room and continued to scream at him. Columbus stated Amber started “tugging on me and pushing me,” and then “she closed her hands and [ ] started hitting me” with closed fists. He testified he tried to avoid her and told her to stop hitting him until “I kind of grabbed her by her face and nudged her away, more or less.” At that point, Amber called the police.

When viewing this evidence in the light most favorable to the prosecution and deferring to the jury's assessment of the credibility of the witnesses, the jury could have disbelieved Columbus's testimony and rejected his self-defense claim. See id. at 608–09. The jury could have also reasonably inferred Columbus assaulted Amber based on Officer Kalk and Detective Jimenez's testimony detailing Amber's injuries, the photographs depicting Amber's injuries, and the 911 recording revealing Columbus was assaulting Amber while she was on the phone with the police. And to the extent Columbus contends the State was required to produce evidence to refute his self-defense claim, we remain mindful our standard of review does not require us “to look to whether the State presented evidence which refuted appellant's self-defense testimony.” Id. at 608. Rather, we must determine, after viewing all the evidence in the light most favorable to the prosecution, whether “any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Id.

Here, the record does not indicate the jury was irrational in rejecting Columbus's testimony about his self-defense claim, and we may not substitute the jury's credibility determination of Columbus's testimony with that of our own. See id. Having viewed the evidence under the appropriate standard of review, we conclude the jury could have rationally rejected Columbus's self-defense claim and found a verdict of guilty beyond a reasonable doubt. See id. We therefore overrule Columbus's self-defense argument.

Affirmative Finding of Family Violence

Columbus next complains the trial court erred by including an affirmative finding of family violence in the judgment because the trial court did not orally pronounce an affirmative finding of family violence during sentencing, as required by the statute. Moreover, he argues when there is a conflict between the oral pronouncement of the sentence and the sentence in the written judgment, the oral pronouncement controls. Therefore, the judgment should be reformed to delete the finding.

The Record

Here, the trial court pronounced the following sentence: “I will accept the state's recommendation of a $500 fine, costs of court, one year probated for a period of a year, the BIPP program. I will ask that he participate in 40 hours of community service. Parenting class.” Thereafter, the trial court entered judgment including an affirmative finding of family violence.

Applicable Law

To determine whether it was proper to include the affirmative finding of family violence in the judgment if it was not orally pronounced in the sentence, we need to determine whether an affirmative finding of family violence is a part of the sentence. Columbus's contention therefore requires us to construe Article 42.013 of the Code of Criminal Procedure which addresses an affirmative finding of family violence. “Statutory construction is a question of law that we review de novo.” State v. Heath, 696 S.W.3d 677, 689 (Tex. Crim. App. 2024). “In interpreting the text of a statute, we must presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if possible.” Id. “We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts.” Id. “[W]e look to the entire act in determining the legislature's intent with respect to a specific provision.” Id. “We may also consult standard or legal dictionaries in determining the fair, objective meaning of undefined statutory terms, and legal dictionaries to determine the meaning of undefined legal terms.” Id.

Article 42.013 of the Code of Criminal Procedure identifies what constitutes a finding of family violence: “[i]n the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, 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. art. 42.013.² Title 5 includes Section 22.01—the provision for misdemeanor assault for which Columbus was convicted. Section 71.004 defines family violence as actions by one family or household member against another family or household member “intended to result in physical harm, bodily injury, [or] assault ․ but does not include defensive measures to protect oneself.”³ Shall means “mandatory”; i.e., it “imposes a duty.” See, e.g., State v. Stephens, 663 S.W.3d 45, 55 (Tex. Crim. App. 2021).

“Affirmative finding” is not defined in the statute. Black's Law Dictionary defines “affirmative” as “[s]upporting the existence of certain facts,” “[i]nvolving or requiring effort,” or “[g]iving assent.” Affirmative, Black's Law Dictionary (12th ed. 2024), available at Westlaw. In other words, a finding is affirmative if it supports the existence of certain facts or gives assent to those facts. This is consistent with the Court of Criminal Appeals’ jurisprudence construing “affirmative finding” in the context of an affirmative finding of a deadly weapon where the jury acts as trier of fact. See Duran v. State, 492 S.W.3d 741, 746, 747 (Tex. Crim. App. 2016) (providing Court of Criminal Appeals has “allowed for entry of a deadly-weapon finding in scenarios where the trier of fact does not directly express that it has determined that a deadly weapon was used or exhibited in commission of a felony offense or during immediate flight therefrom.” (citing Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985)). See generally Tex. Code Crim. Proc. art. 42A.054.

Accordingly, Article 42.013 provides that in an assault trial, if the court determines that the assault involved actions by one family or household member against another family or household member intended to result in physical harm other than through self-defense, the court has a duty to assent to a finding or support the existence of certain facts in a finding and enter that finding in the judgment.⁴ In other words, “the trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial, the court determines that the offense involved family violence.” Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). Therefore, other than in the judgment, nothing in Article 42.013 requires the documentation of the “affirmative finding” in the record or its oral pronouncement. Cf. Tex. Code Crim. Proc. art. 42A.105 (providing if judge places defendant charged with certain offenses on deferred adjudication community supervision, judge shall make affirmative finding of fact and “file statement of that affirmative finding with the papers in the case”).

By contrast, “[t]he sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” Tex. Code Crim. Proc. art. 42.02. “[A] sentence ‘consists of the facts of the punishment itself, including the date of commencement of the sentence, its duration, and the concurrent or cumulative nature of the term of confinement and the amount of the fine, if any.’ ” Burg v. State, 592 S.W.3d 444, 450 (Tex. Crim. App. 2020) (State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004)). As the Burg court explained:

These things are clearly “in” the closed curve of things that can make a “sentence” legal or illegal: a term of years; a fine; the fact of shock or regular probation; and enhancements. These things are “out”: restitution; an Article 37.07 election for the jury to assess punishment; deadly-weapon findings; the terms of community supervision (including restitution when it is a condition of probation); court costs; sex-offender registration; and forfeiture of contraband.

Id. at 451 (footnotes omitted). In general, “[a] defendant's sentence must be pronounced orally in his presence.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). “When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls.” Id.

Analysis

But nothing in Article 42.013 makes it a part of the sentence or subjects it to the statutory requirements of a sentence. Specifically, the finding of family violence is not the “punishment itself” or the part of the judgment that orders the punishment to “be carried into execution.” See Tex. Code Crim. Proc. art. 42.02; cf. Tex. Code Crim. Proc. art. 42.01, § 1 (addressing how judgment should reflect sentence in subsections (9)–(10), (15), (17)-(19)) & § 5 (addressing how judgment should reflect Article 42.013 finding).⁵ At best, it would clearly fall “out” of a sentence like a deadly weapons finding. See Burg, 592 S.W.3d at 451.

Accordingly, an Article 42.013 finding of family violence is not a sentencing issue; instead, it is an issue determined by the trial court based on the evidence admitted during the guilt-innocence phase of trial. See Tex. Code Crim. Proc. art. 42.013 (requiring trial court to enter affirmative family violence finding if court determines offense involved family violence); see also Butler, 189 S.W.3d at 302 (holding trial court is statutorily obligated under article 42.013 to enter affirmative finding of family violence if during guilt phase of trial, it determines offense involved family violence). And neither the statute nor the Texas Court of Criminal Appeals have signaled an oral rendition of the trial court's family violence determination during sentencing is mandatory.⁶

Even so, our opinion should not be read to suggest it is not a better practice for trial courts to orally pronounce the affirmative finding of family violence. Cf. Duran v. State, 492 S.W.3d 741, 747 n.3 (“Indeed, we have noted that submitting a special issue at punishment may be the better practice, but we have never held that a purely ‘express’ finding though a special issue at punishment is the only scenario that authorizes the trial court's entry of a deadly-weapon finding.”). Nor do we address the remedies available to a defendant wishing to challenge the affirmative finding of family violence in the judgment. See Tex. R. App. P. 47.1.

Columbus cites our opinion in Sequiera v. State in support of his argument, but Sequiera is distinguishable. No. 04-14-00361-CR, 2015 WL 4554334 (Tex. App.—San Antonio July 29, 2015, no pet.) (mem. op., not designated for publication).⁷ In Sequiera, Anthony John Sequiera was charged with and found guilty of the offense of terroristic threat of a family/household member. See id. at *1. During sentencing, the State recommended “a $1,500 fine, court costs, one year in the Bexar County jail, time and money to run concurrent, credit for time served and an affirmative finding of family violence.” But the trial court rejected that recommendation and “pronounced a sentence of forty-five days in jail, time served.” Id. at *5. The judgment, however, reflected the State's rejected recommendation, including the affirmative finding of family violence. Id. at *5. Sequiera argued “the trial court violated his due process rights,” and the State conceded “the trial court erred in its judgment.” Id. at *5. In other words, the trial court indicated on the record it would not follow the State's recommendation and not include the affirmative finding of family violence, but the judgment reflected otherwise. The parties did not dispute it violated his right to due process. See id. at *5–6. We agreed with Sequiera the “oral pronouncement of sentence controls,” and we struck the fine, modified the sentence to forty-five days, and struck the affirmative finding of family violence. Id. However, at no point in the opinion did we address whether the affirmative finding formed a part of the sentence; indeed, Article 42.013 of the Code of Criminal Procedure is not even cited in the opinion. Instead, we plainly accepted the parties’ contention that the trial court erred by first rejecting the State's recommended sentence and finding and then ultimately imposing them anyway.

However, we are aware Sequiera has created confusion. Therefore, to the extent Sequiera can be read to mandate that a trial court must orally pronounce an affirmative finding of family violence, it is overruled. See, e.g., Cody Texas, L.P. v. BPL Expl., Ltd., 619 S.W.3d 735, 746 (Tex. App.—San Antonio 2019, pet. denied) (“An erroneous opinion that is not expressly overruled threatens to ‘cause[ ] some confusion regarding the issue’ it purports to resolve.” (quoting Kingston v. Helm, 82 S.W.3d 755, 760 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied))).

We therefore reject Columbus's final argument.

Conclusion

Based on the foregoing, we affirm the trial court's judgment of conviction.

CONCURRING OPINION

I join the majority opinion in full and write separately to address why the $100 fine required by article 42A.504(b) does not alter the analysis as to whether an affirmative finding of family violence is part of the sentence and to address why the failure to assess the fine does not result in a void sentence. I respectfully submit that our statutory analysis must consider this $100 fine and the interplay of articles 42.013 and 42A.504.

Statutory construction requires us to harmonize provisions that work together. See State v. Heath, 696 S.W.3d 677, 689 (Tex. Crim. App. 2024) (“We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts.”); Murray v. State, 302 S.W.3d 874, 877 (Tex. Crim. App. 2009) (“It is apparent from a reading of articles 4.06 and 37.09 [of the Texas Code of Criminal Procedure] that the Legislature intended the provisions to work together[.]”).

Article 42.013 requires an affirmative finding of family violence be included in the judgment. See Tex. Code Crim. Pro. Ann. art. 42.013 (“In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.”). Article 42A.504(b) requires, with a family-violence finding, that a defendant pay a $100 fine to a family violence center. See Tex. Code Crim. Proc. Ann. art. 42A.504(b) (“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[.]”).

The $100 fine required by article 42A.504(b) — as a mandatory, collateral consequence of a family-violence finding — could make the finding itself be a punishment, requiring oral pronouncement, as appellant argues in his en banc brief. Moreover, as here, the failure to assess a fine with a family-violence finding raises void-sentence concerns if the fine is indeed a punishment.¹ See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal ․ There has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence.”).

However, for me, consideration of article 42A.504 does not change the majority's interpretation of article 42.013. Texas Code of Criminal Procedure Chapter 42 concerns “Judgment and Sentence.” See Tex. Code Crim. Proc. Ann. Ch. 42 (Judgment and Sentence). “The sentence is that part of the judgment ․ that orders that the punishment be carried into execution in the manner prescribed by law.” Id. art. 42.02. Within Chapter 42 is found the requirement that a sentence generally must be pronounced in a defendant's presence. See id. art. 42.03.

Code of Criminal Procedure Chapter 42A concerns “Community Supervision.” See id. Ch. 42A (Community Supervision). “ ‘Community supervision’ means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which: (A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.” Id. art. 42A.001(1). Article 42A.053 allows: “A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may: (1) suspend the imposition of the sentence and place the defendant on community supervision; or (2) impose a fine applicable to the offense and place the defendant on community supervision.” Id. art. 42A.053(a).

Together these provisions provide 1) that community supervision is a continuum of programs and sanctions, see id. art. 42A.001(1), 2) which may be imposed prior to sentence or after sentence, see id. arts. 42A.001(1), 42A.053(a), and 3) such community-supervision programs and sanctions are separate from the punishment ordered to be carried out by a sentence. See id. art. 42.02; see also Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999) (“[C]ommunity supervision is an arrangement in lieu of the sentence, not as part of the sentence.”).

Thus, the $100 fine required by a defendant if a judge grants community supervision and makes a family-violence finding, is not a fine imposed as part of the punishment. See Tex. Code Crim. Proc. Ann. art 42A.504(b); see also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (“Fines are punitive, and they are intended to be part of the convicted defendant's sentence as they are imposed pursuant to Chapter 12 of the Texas Penal Code, which is entitled ‘Punishments.’ ”). Instead, the $100 fine, which is included in Chapter 42A in a section entitled “Community Supervision for Certain Offenses Involving Family Violence; Special Conditions,” is part of the continuum of sanctions that makes up community supervision. See Tex. Code Crim. Proc. Ann. arts. 42A.001(1), 42A.504(b). A trial judge is specifically authorized to impose this $100 fine — not as a part of the punishment assessed, see Tex. Penal Code Ann. § 12.01(a); Tex. Code Crim. Pro. Ann. art. 42.02 — but pursuant to article 42A.504, as a condition of probation. See id. art. 42A.504(b). More generally, a trial court is allowed to impose the fine as a condition of community supervision under article 42A.651(a), which allows as a condition of community supervision a “fine,” see id. art. 42A.651(a)(1),² or a “payment ordered as a condition that relates personally to the rehabilitation of the defendant or that is otherwise expressly authorized by law.” See id. art. 42A.651(a)(3) (emphasis added).

In short, the $100 fine required by article 42A.504(b) as a condition of community supervision upon a trial court's family-violence finding is not part of the punishment that must be included in a sentence. Consequently, article 42A.504 does not suggest that a family-violence finding under article 42.013 is a punishment. As neither the fine nor the finding are punishments, this case raises no void-sentence issues. Cf. Steele v. State, No. PD-0427-24, 2024 WL 5148573, at *4 (Tex. Crim. App. Dec. 18, 2024) (holding defendant waived appellate issue regarding imposition of $100 payment to women's shelter, which trial court required as condition of community supervision).

CONCURRING OPINION

Based on the current state of the law, the majority decides that the affirmative finding of family violence is not a part of the sentence. I concur, but write separately to draw attention to the mandatory fine and collateral consequences associated with the affirmative finding of family violence.

In this case, after a jury trial, an affirmative finding of family violence was included in the judgment despite there being no oral pronouncement by the trial court. The relevant facts follow. Appellant was charged with an assault on his common-law wife, Amber. Appellant testified and asserted a self-defense claim. Amber did not testify. Appellant was found guilty of the charge. At the conclusion of the punishment phase, the trial court imposed a detailed sentence,¹ including a fine and court costs, and a probated term of incarceration. The trial court also required appellant to complete several programs, including a batterer intervention prevention program and a parenting class. However, no affirmative finding of family violence was orally pronounced by the trial court, and the trial court did not impose the $100 mandatory fine imposed when there is an affirmative finding of family violence, and the terms of the sentence are probated. See Tex. Code Crim. Proc. art. 42A.504(b).

Under article 42A.504 of the Code of Criminal Procedure, when a defendant is placed on community supervision for certain offenses involving family violence as defined in the Family Code, “the judge shall require the defendant to pay a fine of $100 to a family violence center[.]” id. (emphasis added). Because the legislature used mandatory language in requiring the $100 punitive fine when an affirmative finding of family violence is imposed, and because a fine is undoubtedly part of the sentence, it only makes sense that an affirmative finding of family violence should be a part of a trial court's oral pronouncement of the sentence in the presence of the defendant. See Tex. Code Crim. Proc. art. 42.02 (“The sentence is that part of the judgment ․ that orders that the punishment be carried into execution in the manner prescribed by law.”); Anastassov v. State, 664 S.W.3d 815, 820 (Tex. Crim. App. 2022) (“A fine is punitive in nature and is part of a defendant's sentence.”); see also Tex. Gov't Code § 311.016(2) (“ ‘Shall’ imposes a duty.”).

The majority, based on Burg, rightly illustrates that there are certain things that make a sentence legal or illegal. See Burg v. State, 592 S.W.3d 444, 450–51 (Tex. Crim. App. 2020). The Burg Court refers to the things that make a sentence legal as things “in” a closed curve, as opposed to things that render a sentence illegal, which are things “out” of the same closed curve. See id. Among the things that are clearly “in” the closed curve enumerated by the Court is a punitive fine. See id. Therefore, I would hold that, under Burg, the mandatory punitive fine that accompanies the affirmative finding of family violence renders the finding itself akin, if not with–“in” the curve of what constitutes a legal sentence.

Nevertheless, I cannot ignore that the Burg Court's list, albeit informative, does not specifically include an affirmative finding of family violence. I do, however, find it instructive that the Court chose to use a curve as the divider as opposed to a rigid “line in the sand” or “fork in the road,” which would have created a clear demarcation on both sides. On this point, I disagree with the majority's simple comparison of a jury's affirmative finding of a deadly weapon after punishment and a judge's finding of family violence after guilt or innocence. And, reaching beyond the facts of this single case and into potentially countless analogous cases, the critical difference between the two findings is that a deadly weapon finding does not carry the same mandatory punitive fine outlined by statute.

Using the facts in Columbus as an example, a trial court could choose not to make an oral pronouncement of an affirmative finding of family violence for an endless number of reasons, including, but not limited to, an appellant's assertion of self-defense or the lack of testimony from a complainant. A trial court could believe that the threshold for family violence was not met as defined by the Family Code, where the trial court finds an act was intended to cause the injury, but does not include defensive measures to protect oneself. See Tex. Fam. Code § 71.004(1). Whatever the reason, we cannot assume a trial court's intentions. Nor should we.

Moreover, aside from the fine, a trial court could decide that the endless possible legal collateral consequences of the affirmative finding of family violence are not warranted given the facts and evidence presented at trial. For brevity, I will highlight a few of the possible consequences flowing from such a finding. An affirmative finding of family violence can be used to secure a protective order. Violating a protective order can lead to criminal consequences. Tex. Penal Code § 25.07; Tex. Fam. Code § 85.022. Those criminal consequences potentially include fines and incarceration. A person's civil case, including custody and spousal maintenance, could be altered. Singularly, but especially when combined, these collateral consequences could affect a person's future, including but not limited to, child custody, possession of a weapon, fines, and incarceration. Therefore, the weight of the affirmative finding of family violence exceeds a mere finding. It is a part of the sentence. See Tex. Code Crim. Proc. art. 42.02.

The Texas Court of Criminal Appeals has decided that the deadly weapon finding is not part of a sentence. See Ex parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim. App. 2005) (“A deadly-weapon finding may affect how the sentence is served, but it is not part of the sentence.”). Although synonymous in some ways to the deadly weapon finding, as outlined above, the affirmative finding of family violence can be distinguished and warrants separate review. I invite the Texas Court of Criminal Appeals to evaluate this specific issue and provide guidance and clarity to this court, our sister appellate courts, and the many trial courts that face this issue daily throughout this State. For this reason, I concur.

DISSENTING OPINION

An affirmative finding of family violence should be orally pronounced when that finding leads directly to the imposition of a nondiscretionary, mandatory fine. When a court makes an affirmative finding of family violence and grants probation, it triggers a mandatory family violence fine of $100—not as a condition of probation, restitution, court costs, or other civil penalties, but as a critical part of the sentence—as punishment for that finding.¹ This fine distinguishes an affirmative finding of family violence from other findings the Court of Criminal Appeals has held are not part of the sentence.²

In this case, the jury found Bryan William Columbus guilty of the offense of assault causing bodily injury. The evidence established that Columbus had a prior or current dating relationship with the complainant. The trial court sentenced Columbus to one year confinement in the Bexar County Jail but suspended the imposition of the jail sentence and placed him on probation for one year. Sometime after the sentencing hearing had concluded, the court entered an affirmative finding of family violence in the judgment of the cause. The court did not orally pronounce the finding or assess the mandatory fine. And the fine could not be added as a condition of probation since, as noted above, it is not a condition of probation: it is a part of the sentence.³ ,⁴

Considering this distinction and the record before us, I would affirm the judgment of conviction. However, because the mandatory fine was not imposed, I would vacate the sentence and remand for a new punishment trial.

1. The Legislature Created This Fine to Partially Fund Family Violence Centers

Prior to the current statutory scheme, “a court [could] only order a probationer to pay fines, court costs, restitution to the victim, or other payments expressly authorized by statute.”⁵ The Legislature, in enacting Article 42.12, § 11(g) of the Texas Code of Criminal Procedure,⁶ created a method of funding family violence centers using fees collected from individuals convicted of certain offenses involving family violence. The legislative history suggest the Legislature considered this a solution to simultaneously deter individuals from committing acts of family violence and to help fund family violence centers that “afford victims a safe place to go and often also provide counseling services.”⁷

To this day, the issue of funding family violence centers persists in Texas. In 2024, the Texas Council on Family Violence reported that 66,000 Texans, including 23,047 children, sought family violence services.⁸ Notably, of those who were turned away, 60% had no safe alternative—many ended up living outside, in vehicles, or returning to violent homes.⁹ The dangers that families and individuals face when family violence centers turn them away “highlights the urgent need for increased shelter capacity and housing solutions for survivors.”¹⁰ Simply put, family violence centers throughout Texas need more funding and they need it now.¹¹

When originally enacted, the statute required that “[i]f a judge grants community supervision to a person convicted of an offense under Title 5, Penal Code, that the court determines involves family violence, the judge may require the person to make one payment in an amount not to exceed $100 to a family violence shelter center.”¹² When the statute was recodified in 2017, the Legislature replaced the words “may require” with “shall,” removing the court's discretion to assess the payment.¹³ Finally, in 2019, the Legislature reclassified the $100 payment to a family violence center as a “fine.”¹⁴

By specifically including the word “fine” within Article 42A.504—rather than fee or cost—the Legislature intended that the punitive $100 “be part of the convicted defendant's sentence.”¹⁵ Despite being codified within Chapter 42A, “Community Supervision,” and entitled “Community Supervision for Certain Offenses Involving Family Violence; Special Conditions,” Article 42A.504’s headings bear no weight nor restrict the punitive nature of its $100 fine.¹⁶ Accordingly, by reclassifying the $100 payment as a “fine,” the Legislature intended for it to be a part of a defendant's sentence, rather than a condition of probation.¹⁷

2. Because the Trial Court Failed to Impose the Fine, Columbus's Sentence is Void

Because the statute mandates the fine in this case, the trial court erred in not assessing it.¹⁸ An oral pronouncement of a defendant's sentence in open court is considered the official sentence in Texas. Oral pronouncements ensure due process, provide clarity for appellate review, and control over inconsistencies that may later appear in a written judgment. So, when a trial court imposes a fine tied to an affirmative finding—like this $100 fine in favor of a family violence center—such finding should ideally be made on the record.

In this case, because the mandatory $100 fine was not made part of Columbus's sentence, orally or otherwise, his “sentence [is] outside the statutory limits [and] is void.”¹⁹ We “have no authority to reform the sentence by adding a punishment of any amount, even in the interest of judicial economy and fairness or even if the addition is de minimis.”²⁰ Consequently, the only appropriate remedy is a new punishment trial where the sentence, including any affirmative findings and mandatory fines, can be lawfully imposed.²¹

For these reasons, I respectfully dissent.

FOOTNOTES

1.   On May 22, 2024, a panel consisting of Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, and Justice Irene Rios issued an opinion and judgment affirming the trial court's judgment of conviction. On June 6, 2024, Columbus filed a motion for en banc reconsideration. On January 28, 2025, within its plenary power, we voted to grant en banc reconsideration of this appeal. See Tex. R. App. P. 41.2(c), 49.5. On reconsideration en banc, we withdraw our previous opinion and judgment and substitute this opinion and judgment in their place.

2.   The Article has not been altered since it became law in 1993, except to update the cross-reference to the Family Code in 2003. See Acts 2003, 78th Leg., ch. 1276, § 7.002(h) (codified at Tex. Code Crim. Proc. art. 42.013); Heath, 696 S.W.3d at 689 (“We construe an amended statute as if it had originally been enacted in its amended form, mindful that the legislature, by amending the statute, may have altered or clarified the meaning of earlier provisions.”).

3.   The provision also includes “abuse” and “dating violence” as defined in Section 71.0021. See Tex. Fam. Code § 71.004.

4.   The Judgment is defined by the Code of Criminal Procedure as “the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.” Tex. Code Crim. Proc. art. 42.01 § 1.

5.   Section 1 of article 42.01 of the Texas Code of Criminal Procedure, which addresses judgments, provides “[t]he judgment shall reflect,” among other things, “[t]he term of sentence.” Tex. Code Crim. Proc. art. 42.01 § 1. Section 5 separately provides “[i]n addition to the information described by Section 1 of this article, the judgment should reflect affirmative findings entered pursuant to Article 42.013 of this code.” Id. § 5.

6.   An affirmative finding of family violence undoubtedly carries with it serious collateral consequences for a defendant. See generally Office of Court Administration, The Texas Family Violence Benchbook, Ch. 10.4 (Sept. 2011), https://www.txcourts.gov/media/478288/domesticviolencebenchbook.pdf (listing collateral consequences). But collateral consequences do not make it part of the sentence.

7.   Sequiera is unpublished and therefore has no precedential value. See Tex. R. App. P. 47.7(a) (“Opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, ‘(not designated for publication).’ ”); cf. Ex parte Sanders, 663 S.W.3d 197, 204 (Tex. Crim. App. 2022) (providing under stare decisis courts “ ‘should not frivolously overrule established precedent’ ” (emphasis added) (quoting Ex parte Thomas, 623 S.W.3d 370, 381 (Tex. Crim. App. 2021))); Stare Decisis, Black's Law Dictionary (12th ed. 2024), available at Westlaw (“The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.”).

1.   The Texas Court of Criminal Appeals has previously indicated that the label “fines” suggests something “clearly punitive in nature.” See Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (discussing fines imposed pursuant to Texas Penal Code Chapter 12, entitled “Punishments”); see also Burg v. State, 592 S.W.3d 444, 451 (Tex. Crim. App. 2020) (listing fines as something “clearly ‘in’ the closed curve of things that can make a ‘sentence’ legal or illegal”).

2.   Like restitution, which can be punitive or a condition of probation, here the $100 “fine” is not punitive but is a condition of probation. See Tex. Code Crim. Proc. Ann. art. 42A.504(b); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (“We have held that restitution is punishment[.]”); Burg, 592 S.W.3d at 451 (excluding from items that must be in a sentence: “terms of community supervision (including restitution when it is a condition of probation)”).

1.   For example, when specifically asked about the imposition of a no contact order for Amber, the trial court responded, “You know, [Amber] didn't show up and didn't cooperate with you. So, if she needs a no contact order I will let her contact you all and you all can ask the [trial court] to amend it.”

1.   A “sentence” is defined in the Texas Code of Criminal Procedure as “that part of the judgment that orders that the punishment be carried into execution in the manner prescribed by law.” See Burg v. State, 592 S.W.3d 444, 451 (Tex. Crim. App. 2020) (cleaned up).

2.   See Burg, 592 S.W.3d at 451 (recognizing, for example, that an enhancement is part of the sentence, while a deadly-weapon finding is not)

3.   Tex. Code Crim. Pro. art. 42A.651(a)–(b) (restricting probation-related payments to fines, costs, and restitution, and clarifying that defendants are obligated to pay fines even after their probation expires).

4.   Anastassov v. State, 664 S.W.3d 815, 820 (Tex. Crim. App. 2022) (holding that “[a] fine is punitive in nature and is part of a defendant's sentence.”).

5.   House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 461, 76th Leg., R.S. (1999).

6.   Currently codified as Article 42A.504 of the Texas Code of Criminal Procedure.

7.   S. Rsch. Ctr., Bill Analysis, Tex. S.B. 461, 76th Leg., R.S. (as filed, Feb. 20, 1999).

8.   Tex. Council on Fam. Violence, 2024 Annual Report, 4 (2024), https://tcfv.org/wp-content/uploads/TCFV-2024-Annual-Report.pdf.

9.   Id.

10.   Id.

11.   The Legislature should strongly consider amending the statutory scheme to meaningfully carry out its intended purpose. The statute allows a trial court to make its affirmative finding of family violence for the first time in the written judgment. Tex. Code Crim. Pro. art. 42.013. Since the family violence fine is mandatory when probation is granted, the trial court must decide on the affirmative finding at or before sentencing—but as is the case here, courts often make the finding too late to properly impose the fine. Requiring trial courts to orally pronounce an affirmative finding of family violence at sentencing would fill this statutory pothole and promote equal application of law.Second, like the family violence fine, the Legislature created mandatory DWI fines to partially fund designated facilities that provide treatment to victims of collisions resulting from traffic offenses. Tex. Trans. Code § 709.002(e)(2). In contrast to the family violence fine, however, any person “finally convicted of an offense relating to the operation of a motor vehicle while intoxicated shall pay a fine”—regardless of whether probation was granted or incarceration imposed. Id. § 709.001(b). With domestic violence in Texas rising, imposing a mandatory family violence fine on all defendants convicted of certain offenses with a finding of family violence would more equitably deter domestic abuse and increase the consistency of this funding. See Jess Huff, Domestic violence is up in Texas. Survivors and supporters hope lawmakers will take action, Texas Tribune (Feb. 13, 2025), https://www.texastribune.org/2025/02/13/texas-domestic-violence-legislation/ (reporting that, as of February 2025, “domestic violence incidents have risen 26% since 2019”).

12.   Act of April 21, 1999, 76th Leg., R.S., ch. 27, § 1, sec. 42.12, 1999 Tex. Gen. Laws 42, 42 (repealed 2017).

13.   Act of May 29, 2015, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws 2350, 2350 (amended 2020) (current version at Tex. Code Crim. Pro. art. 42A.504); Brinkley v. State, 320 S.W.2d 855, 857 (Tex. Crim. App. 1958) (holding that the word “shall” deprives the trial court of discretion).

14.   See Act of May 25, 2019, 86th Leg., R.S., ch. 1352, § 2.14, 2019 Tex. Gen. Laws 3981, 3996–97.

15.   See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); see also Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (citing People v. Jones, 861 N.E.2d 967, 981 (Ill. 2006) (holding that a statutory “$100 Trauma Fund charge” is a punitive fine since it is referred to as a “fine”)).

16.   Tex. Gov't Code § 311.024.

17.   Rodriguez v. State, No. 01-23-00721-CR, 2025 WL 1373693, at *16 (Tex. App.—Houston [1st Dist.] May 13, 2025, no pet. h.) (mem. op., not designated for publication) (holding that when the Legislature reclassified a court cost to a fine, it is part of the sentence and needs to be orally pronounced).

18.   See Ibarra v. State, 177 S.W.3d 282, 284 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citation omitted); see also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding that “[a] sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.”).

19.   Ibarra, 177 S.W.3d at 284 (citation omitted).

20.   Id.; Gonzalez v. State, No. 05-14-00888-CR, 2015 WL 3899590, at *2 (Tex. App.—Dallas June 24, 2015, no pet.) (mem. op., not designated for publication).

21.   Ibarra, 177 S.W.3d at 284; see also Craven v. State, 350 S.W.2d 34, 35 (Tex. Crim. App. 1961) (holding that “because the punishment is less than that required by statute” a new punishment trial was required); see also Gilliland v. State, 342 S.W.2d 327, 328 (Tex. Crim. App. 1961) (reversing judgment and remanding for a new punishment trial since “[t]he punishment assessed” was “less than the minimum provided by law.”).

Opinion by: Lori Massey Brissette, Justice

Concurring Opinion by: Rebeca C. Martinez, Chief Justice