RUDY ZAPATA v. THE STATE OF TEXAS (2024)

DISSENTING OPINION

The Court grants relief on the basis of sufficiency of the evidence, but that issue was not raised on appeal, on PDR, or in briefing to this Court. The court of appeals did comment in passing that the record supported Appellant's plea, but it perceived the matter to be uncontested. Even if that passing comment is enough for this Court to grant a sufficiency issue on its own, the Court has not done that and has not allowed briefing on it. Consequently, the State has not had an opportunity to address the sufficiency of the evidence to support the family-violence finding. In its briefing before us, the State argued an estoppel issue that touches on sufficiency, but it might have made other arguments if it had known that sufficiency was an issue, and the Court does not even address the State's estoppel argument. Unless and until we grant review of a sufficiency issue on our own, it is not properly before us. And we should not decide the issue without expressly giving the parties the opportunity to weigh in on it. Moreover, it appears that multiple colorable arguments for upholding the sufficiency of the evidence could be made in this case.

1. The issue was not raised on appeal to the court of appeals.

In Appellant's opening brief on appeal, he raised two claims: (1) “The trial court erred by entering an affirmative finding of family violence, as there is no judgment to enter the finding into.” (2) “The trial court erred by entering an affirmative finding of family violence, as the affirmative finding of family violence is not one of the findings specified by the code to be entered in a deferred adjudication.” Nowhere in that brief did he argue that the evidence was insufficient to support the family-violence finding. In his reply brief on appeal, Appellant claimed: (1) “The trial court was prohibited from entering an affirmative finding of family violence.” (2) “A judge does not have discretion to enter an affirmative finding.” Appellant continued his argument that there was no judgment, claimed that deferred adjudication was not a judgment or conviction, and claimed that, therefore, there was no authority to enter a family-violence finding in a deferred-adjudication order. He did not argue that the evidence was insufficient to support a family-violence finding.

2. The court of appeals did comment on the matter in passing, but did not address the issue as “unassigned error.”

A court of appeals can address an issue that was not raised on appeal as “unassigned error,” as long as the issue was preserved at trial or did not need to be preserved.¹ The court of appeals did comment in passing that the record supported Appellant's plea.² The court said, “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.”³ But it is clear from its opinion that the court of appeals took the sufficiency of the evidence on the family-violence finding as a given, an uncontested matter.⁴ The court of appeals never suggested that the sufficiency of the evidence to support the family-violence finding was being reviewed or called into question.⁵

“As a general proposition, this Court will review only the ‘decisions’ of the courts of appeals.”⁶ We have recognized exceptions to the practice of reviewing only decisions, but those exceptions have involved reviewing an outstanding issue that remains after reviewing the issue the court of appeals decided.⁷ But the sufficiency issue in the present case is not an outstanding issue implicated by the resolution of different issue. It is the only issue the Court decides.

3. We have not granted review of the issue.

Appellant did not raise the issue in his petition for discretionary review. Appellant's sole ground for review was: “Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?” In his “reasons for review” section, Appellant claimed that the court of appeals “inappropriately combined and misapplied two Texas Statutes, and attributed discretion to the Trial Court where no explicit statutory provision grants such discretion.” He further claimed: “A review by this Court is essential to determine whether the Trial Court possesses discretion to include an affirmative finding of family violence in the absence of a judgment.” His summary of argument and argument sections further amplified the only claim he raised: that the court of appeals erred to hold that a trial court ever has authority to make a family-violence finding in an order deferring adjudication of guilt. As with his prior briefing, in his PDR he did not, even in passing, make any claim that the evidence was insufficient to support a family-violence finding.

We do have the power to grant discretionary review “without a petition.”⁸ We can do so “at any time before the mandate of the court of appeals issues.”⁹ But we have not done so in this case. Until and unless we grant review of the sufficiency issue on our own (assuming we have authority to do so), the issue is not properly before us.

4. As part of an estoppel argument in its briefing before us, the State argued that Appellant's no-contest plea supported the family-violence finding, but the Court does not address the State's argument.

The State contended that Appellant was estopped from challenging the family-violence finding because of his no contest plea. The State argued that Appellant's oral plea of no contest embraced such a finding. The State pointed out that the trial court said during the plea colloquy:

Mr. Zapata, I'm going to accept your no contest plea for the assault bodily injury-married offense alleged to have occurred on the 12th day of December 2019 in Case No. 644950.10

The State argued that, by pleading no contest after the trial court's statement, Appellant embraced the “married” element, which was “the functional equivalence of family violence.” The State set out the information in full, including the caption that said “assault bodily injury-married/cohab.” The State further argued that “[e]ven if a caption isn't considered part of the alleged offense when the body alleges a complete offense and the body and caption differ, the trial judge understood that it did and thus included it as an element, and Appellant accepted it.”¹¹ The Court does not address this argument.

5. The State has not been given notice that sufficiency is an issue in the case.

Appellant's brief reiterated as his sole issue: “Does the trial court have the discretion to make an affirmative finding of family violence during sentencing prior to adjudication?” His summary of argument and argument sections reflected the same arguments he raised in his PDR. As with his earlier briefing, his briefing before us included no claim or argument suggesting that the evidence was insufficient to support the family-violence finding.

The State did raise its estoppel argument, and that argument does touch on sufficiency. If Appellant's plea conclusively estopped him from challenging the finding, then either the evidence was sufficient or Appellant is estopped from challenging its sufficiency.

But evidence could be sufficient for a reason short of one that gives rise to estoppel. The State made its estoppel argument as an effort to show that Appellant was barred from challenging the trial court's statutory authority to enter a finding. Had the State known that sufficiency was an issue, it might have made other arguments to support sufficiency.

For example, it might have relied upon the hearsay statement in a probable-cause affidavit that the complainant told a police officer that she was Appellant's girlfriend. The Court addresses that statement and rejects it as a basis for finding the evidence sufficient, but it is possible that the State could have marshaled arguments that would have persuaded the Court otherwise. We don't know, because the State has not been given that opportunity.

Or the State might have made an argument that we cannot yet anticipate.

6. There are colorable arguments for finding the evidence sufficient, which makes the Court's refusal to give the parties the opportunity to weigh in on the issue even less defensible.

As I alluded to earlier, the State argues that the oral colloquy provides support for the family-violence finding. There is at least an argument that the trial court adopted the caption when it asked Appellant what he was pleading to and that Appellant specifically pled no contest to the charge as explained by the judge. As the Court explains, the following happened:

The Court: Are you the same Rudy Zapata who's been charged with an assault bodily injury-married offense alleged to have occurred on or about the 12th day of December of 2019?

Defendant: Yes, ma'am.

The Court: Mr. Zapata, that is a Class A misdemeanor. It's punishable by up to one year of incarceration at the Bexar County jail. In addition to that, you could face up to a $4,000 fine. And for this offense, your second amendment constitutional right to bear firearms and have guns can be taken away from you for the rest of your life. Mr. Zapata, do you understand the charge?

Defendant: Yes, ma'am.

The Court: How do you plead to the charge?

Defendant: No contest.12

Further evidence that the trial court saw it this way was the following statement it made near the end of the plea proceedings:

Mr. Zapata, I'm going to accept your no contest plea for the assault bodily injury-married offense alleged to have occurred on the 12th day of December 2019 in Case No. 644950.13

No objection was made to this statement, and Appellant did not personally express any disagreement with it.

Another colorable argument is that the probable-cause affidavit included a statement by the complainant to a police officer that she was Appellant's “girlfriend.” “Family violence” includes “dating violence,”¹⁴ and dating violence occurs in a “dating relationship.”¹⁵ A “dating relationship” is “a continuing relationship of a romantic or intimate nature.”¹⁶ In ordinary parlance, when a woman says that she is a man's “girlfriend,” she is conveying that she is in a continuing romantic relationship with him. The Court makes much of the existence of statutory factors used to determine this (length and nature of the relationship and the frequency and type of interaction),¹⁷ but these factors are not part of the definition itself and simply go to assess whether the definition was met, and the “girlfriend” moniker itself suggests that all of these factors weigh in favor of finding a dating relationship.

As the Court explains, the “girlfriend” statement was hearsay (within a police offense report that was hearsay within a probable-cause affidavit that was itself hearsay), but hearsay admitted without objection has probative value.¹⁸ It is true that the trial court did not read into the record the part of the probable-cause affidavit where the complainant told the police officer that she was Appellant's girlfriend. But it is also clear from the record that the trial court relied on the probable cause affidavit in making the family-violence finding. In justifying imposing the family violence finding, the trial court specifically referred to the content of the police offense report cited in the probable-cause affidavit:

The officer further wrote in his offense report that the Complainant reported that an argument had ensued between she and Defendant. That the Defendant then struck, pushed, dragged, pulled the hair of the Complainant and slammed the Complainant's head into a staircase. The officer in his report observed one or more red marks on Complainant, which Complainant stated was a result of the assault by the Defendant. That strongly concerns the Court that that is the extent of the allegation.

It seems obvious that the trial court considered the “girlfriend” reference in the affidavit as well and that the whole context of the abuse—occurring during an argument where the complainant is slammed into a staircase—is at least suggestive of domestic violence. And of course, this would have been an obvious time for the defense to say that, regardless of the specifics of the defendant's violence, a family-violence finding was not supportable because there was no evidence that Appellant and the complainant were in a dating relationship. The obvious reason the defense did not make that argument here is that the existence of a dating relationship was indisputable. The probable cause affidavit is in the record, and the trial court clearly relied upon it. Given the nature of the proceedings, a nonjury setting that was mostly a plea agreement with certain issues left to the trial judge's discretion, it is at least arguable that the entire probable-cause affidavit can be reviewed on appeal, regardless of what portions were read into the record.

7. Conclusion.

Appellant has not, to this day, raised the sufficiency claim: not on appeal, not in his PDR, and not in his briefing before this Court. The Court addresses the claim on its own, without granting review of it and without giving the parties any opportunity to weigh in on the matter. The Court does not address the one colorable argument the State makes that could support sufficiency, and the Court rejects another potential colorable argument without input from the parties while underestimating the strength of that argument.

I respectfully dissent.

FOOTNOTES

1.   Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex. Crim. App. 2006).

2.   Zapata v. State, 678 S.W.3d 325, 330 (Tex. App.—San Antonio 2023).

3.   Id.

4.   See id.

5.   See id. at passim.

6.   Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014).

7.   See id.

8.   Tex. R. App. P. 66.1.

9.   Id. 67.1.

10.   Emphasis in State's brief.

11.   Citation omitted.

12.   Emphasis mine.

13.   Emphasis mine.

14.   Tex. Fam. Code § 71.004(3).

15.   Id. § 71.0021(a)(1)(A).

16.   Id. § 71.0021(b).

17.   Id. § 71.002(b)(1)-(3).

18.   Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”).

Keller, P.J., filed a dissenting opinion in which Keel, J., joined.