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Date: 12-23-2020
Case Style:
Devante Montreal Parker v. The State of Texas
Case Number: 04-19-00478-CR
Judge: Irene Rios
Court: Fourth Court of Appeals
San Antonio, Texas
Plaintiff's Attorney: Andrew Warthen
Joe D. Gonzales
Defendant's Attorney:
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Description:
San Antonio, Texas - Criminal defense attorney represented Devante Montreal Parker with an Assault charge.
Count two of the State’s indictment2 alleged that, on or about October 13, 2018, Parker
intentionally, knowingly, and recklessly caused bodily injury to Julie Jackson, a person with whom
Parker had a dating relationship. The indictment included an enhancement paragraph, which
alleged that Parker was previously convicted in cause number 575051, in Bexar County, Texas, of
assault bodily injury-married, and that the offense was committed against a person with whom
Parker had a dating relationship.
Parker pleaded not guilty and the case was tried to a jury. At trial, the victim, Jackson,
testified for the State. According to Jackson’s testimony, she and Parker first met in 2017, began
dating a few months later, and then had a child together. On October 13, 2018, Parker assaulted
her. This was not the first time Parker had assaulted her. A case had been filed against Parker for
his previous assault on her.
Additionally, the State presented, and the trial court admitted, Exhibit No. 11, which
consisted of certified copies of the judgment, the charging instrument, the complaint, and the
probable cause affidavit filed in cause number 575051. The judgment in cause number 575051
shows that Parker was convicted of the offense of “Assault Bodily Injury-Married” and includes
an affirmative finding of family violence. A fingerprint expert testified that he had compared the
fingerprints on the judgment in cause number 575051 with Parker’s fingerprints. He concluded the
fingerprints on the judgment in cause number 575051 matched Parker’s fingerprints.
Parker testified on his own behalf. In his testimony, Parker stated that his relationship with
Jackson was a dating relationship and they had a child together. He also admitted that he had a
prior conviction for assaulting Jackson.
2
We only discuss count two of the indictment. The jury acquitted Parker on count one.
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The jury found Parker guilty on count two of the indictment. At the punishment hearing,
the trial court sentenced Parker to eight years in prison. Parker appealed.
DISCUSSION
A defendant commits the offense of assault if he intentionally, knowingly, or recklessly
causes bodily injury to another. TEX. PENAL CODE § 22.01(a)(1). The offense is generally a ClassA misdemeanor. Id. § 22.01(b). However, the offense is enhanced to a third-degree felony when
(1) the victim is someone with whom the defendant has or has had a dating relationship, and (2)
the defendant has been previously convicted of assaulting someone with whom he had a familial
or dating relationship. Id. § 22.01(b)(2)(A). Familial and dating relationships are as described in
section 71.0021(b), section 71.003, and section 71.005 of the Texas Family Code. See id. A “dating
relationship” is “a relationship between individuals who have or have had a continuing relationship
of a romantic or intimate nature.” TEX. FAM. CODE § 71.0021(b). A “family” includes “individuals
who are the parents of the same child.” Id. § 71.003. A “household” is “a unit composed of persons
living together in the same dwelling, without regard to whether they are related to each other.” Id.
§ 71.005.
In his sole issue, Parker argues the State’s evidence is “insufficient to prove that [he] had
previously been convicted of the offense of Assault Bodily Injury-Married as alleged in the
indictment.” Referring to the judgment and the other documents from his prior conviction in cause
number 575051, Parker argues:
[T]he evidence reveals that the defendant entered a plea of guilty to the offense of
Assault Family, when the record reflects [] he was charged only with the offense of
Assault. As a result, the evidence brought forth by the [State] does not support the
jury’s finding that the defendant was previously convicted of Assault Bodily InjuryMarried, thereby rendering the evidence [] insufficient.
Thus, Parker argues the evidence supporting the enhancement finding in the present case is
insufficient because the charging instrument in cause number 575051 did not contain an allegation
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that the assault victim was someone with whom he had a familial or dating relationship. Parker
further argues that because the evidence supporting the enhancement finding is insufficient, the
judgment in this case should be reformed to show he was convicted of a Class-A misdemeanor
assault and not a third-degree felony assault, and this case should be remanded for a new
punishment hearing.3
To determine if the evidence is sufficient to prove an enhancement finding, we review the
evidence in the light most favorable to the State. Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim.
App. 2020). To prove a prior conviction for enhancement purposes, the State must prove beyond
a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is connected to that
conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). “[T]he State may
introduce documents, admissions or stipulations, or testimonial evidence sufficient to prove that
the defendant was convicted of the enhancement allegation.” Wood v. State, 486 S.W.3d 583, 588
(Tex. Crim. App. 2016); see Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986)
(recognizing that the proper ways to prove a prior conviction for enhancement purposes include
certified copies of the judgment and sentence, witness testimony, stipulations, and judicial
admissions). “The trier of fact is allowed to consider all the evidence from each source to determine
whether the State has met its burden to prove the enhancement allegation.” Wood, 486 S.W.3d at
588. “Once the State properly introduces a judgment and sentence” and connects them to the
defendant, “we presume regularity in the judgment[].” Johnson v. State, 725 S.W.2d 245, 247
3
We recognize that a defendant may collaterally attack a prior conviction used for enhancement purposes when the
prior conviction is void or tainted by a constitutional defect. See Galloway v. State, 578 S.W.2d 142, 143-44 (Tex.
Crim. App. 1979). However, Parker’s brief does not present a collateral attack on his prior conviction; it only presents
a sufficiency complaint. Nowhere in his brief does Parker argue that his prior conviction is void or tainted by a
constitutional defect, and none of the cases he cites in his brief involve collateral attacks on prior convictions. See
Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (noting “an appellant is the master of his or her own
destiny” with regard to the issues presented on appeal, and “an appellate court is not required to make an appellant’s
arguments for [him].”); TEX. R. APP. P. 38.1(i) (stating an appellant’s brief “must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.”).
04-19-00478-CR
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(Tex. Crim. App. 1987). “The burden then shifts to the defendant, who must make an affirmative
showing of any defect in the judgment . . . .” Id.
We conclude the evidence is sufficient to support a finding that Parker had a prior
conviction for assaulting a person with whom he had a familial or dating relationship. See Wood,
486 S.W.3d at 588 (recognizing that the State may present documents, admissions, stipulations,
and testimonial evidence to prove an enhancement allegation). Here, the judgment in cause number
575051 establishes that Parker was convicted of “assault bodily injury-married” on June 13, 2018,
and includes an affirmative finding of family violence. The probable cause affidavit filed in cause
number 575051 establishes that the victim in that case was Jackson, and that at the time of the
assault she was involved in a relationship with Parker. Additionally, the probable cause affidavit,
complaint, and charging instrument filed in cause number 575051 state that the “offense
code/charge” is “Assault Bodily Injury-Married/Cohab.” Furthermore, Jackson testified that (1)
she and Parker had been in a dating relationship, (2) she and Parker had a child together, and (3)
Parker had previously assaulted her. Finally, Parker testified that he and Jackson had dated and
lived together, that he and Jackson had a child together, and that he was previously convicted of
assaulting Jackson.
We reject Parker’s argument that the evidence is insufficient to support an enhancement
for a prior conviction. Considering all the evidence from each source in the light most favorable
to the State, we hold the evidence is sufficient to support a finding that Parker was previously
convicted of assaulting a person with whom he had a familial or dating relationship. See id.; Reyes
v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 2010, no pet.) (holding evidence of a prior
family violence assault conviction was sufficient based on (1) the prior judgment, which showed
the defendant pled guilty to assault, made an affirmative finding of family violence, and indicated
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the victim in the prior case was the same as the victim in the current case; and (2) expert testimony
that the defendant’s fingerprint appeared on the prior judgment). We overrule Parker’s sole issue.
Outcome: The trial court’s judgment is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: