Mitchell v. State, 102 S.W.3d 772 (Tex. App. 2003). · Go Syfert
Mitchell v. State, 102 S.W.3d 772 (Tex. App. 2003). Cases Citing This Book View Copy Cite
29 citation events (29 in the last 25 years) across 1 distinct court.
Strongest positive: Roberto Garcia v. the State of Texas (texapp, 2025-07-09)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Roberto Garcia v. the State of Texas (2×) also: Cited "see"
Tex. App. · 2025 · confidence medium
Even without that statutory finding, the State may meet its burden of proving that the defendant has been previously convicted of assault and that the assault was committed against a member of the defendant’s family or household “by introducing a previous judgment of conviction for assault, together with extrinsic evidence that the victim of that assault was a member of the defendant’s family or household.” Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d) (rejecting argument that proof of previous conviction for assault against family or household member n…
examined Cited as authority (rule) Darrell Lofton v. State (4×) also: Cited "see"
Tex. App. · 2017 · confidence medium
App. P. 33.1(a); Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d).
discussed Cited as authority (rule) Adam Anderson v. State (2×)
Tex. App. · 2016 · confidence medium
Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d) (citing TEX.
discussed Cited as authority (rule) Timothy Michael Strube v. State
Tex. App. · 2016 · confidence medium
See Vaughn v. State, No. 06-06-00040- CR, 2007 WL 1373178 , at *2 (Tex. App.—Texarkana May 11, 2007, no pet.) (mem. op., not designated for publication);3 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.); State v. Cagle, 77 S.W.3d 344, 349 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
cited Cited as authority (rule) Glenn Merrell v. State
Tex. App. · 2009 · confidence medium
Mitchell v. State , 102 S.W.3d 772, 774 (Tex. App. C Austin 2003, pet. ref = d).
cited Cited as authority (rule) Brian Charles Frankenfield Jr. v. State
Tex. App. · 2008 · confidence medium
Mitchell v. State, 102 S.W.3d 772, 776 (Tex. App.—Austin 2003, pet. ref’d).
cited Cited as authority (rule) Brian Charles Frankenfield Jr. v. State
Tex. App. · 2008 · confidence medium
Mitchell v. State , 102 S.W.3d 772, 776 (Tex. App.--Austin 2003, pet. ref'd).
discussed Cited as authority (rule) Garcia, Jr., Richard v. State
Tex. App. · 2007 · confidence medium
In the absence of such a finding, the State may meet its burden “ by introducing a previous judgment of conviction for assault, together with extrinsic evidence that the victim of that assault was a member of the defendant's family or household.” Mitchell v. State , 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d); Manning v. State , 112 S.W.3d 740, 744 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (extrinsic evidence may be used to prove that previous assault was committed against family or household member in subsequent proceeding when convicting court failed to make a…
discussed Cited as authority (rule) State v. Meadows
Tex. App. · 2005 · confidence medium
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 *620 to a determination that prior assault was not committed against household or family member; therefore State was not collaterally estopped from litig…
discussed Cited as authority (rule) Jorge Torres v. State
Tex. App. · 2005 · signal: cf. · confidence medium
Cf. Mitchell v. State , 102 S.W.3d 772, 774 (Tex. App.--Austin 2003, pet. ref’d) (defendant’s prior assault conviction amounted to conviction of family violence assault, for purposes of enhancement of his sentence on subsequent conviction of felony family violence assault, despite lack of affirmative finding in prior judgment of conviction that offense involved family violence, where extrinsic evidence established that prior offense was committed against woman with whom he was cohabiting at time of assault); State v. Eakins , 71 S.W.3d 443, 444 (Tex. App.--Austin 2002, no pet.) (under sect…
discussed Cited as authority (rule) Manning v. State
Tex. App. · 2003 · confidence medium
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); Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2003, no pet. h.) (holding extrinsic evidence may be used to prove prior assault committed against household member).
discussed Cited as authority (rule) Manning Jr., Charles Edward v. State
Tex. App. · 2003 · confidence medium
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); Mitchell v. State , 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, no pet. h.) (holding extrinsic evidence may be used to prove prior assault committed against household member).
cited Cited "see" John L. Scritchfield v. State
Tex. App. · 2017 · signal: see · confidence high
See Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d).
discussed Cited "see" Edison v. State
Tex. App. · 2008 · signal: see · confidence high
See Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2008, pet. refd) (explaining that the State can use extrinsic evidence to show defendant was previously convicted of assault against a member of the family or household).
discussed Cited "see" Sedric Troy Edison v. State
Tex. App. · 2008 · signal: see · confidence high
See Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.--Austin 2003, pet. ref'd) (explaining that the State can use extrinsic evidence to show defendant was previously convicted of assault against a member of the family or household).
discussed Cited "see" Byron Denell Vaughn v. State
Tex. App. · 2007 · signal: see · confidence high
See 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.); State v. Cagle , 77 S.W.3d 344, 349 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd).
cited Cited "see" Andres Ramirez Zavala v. State
Tex. App. · 2007 · signal: see · confidence high
See Mitchell v. State , 102 S.W.3d 772, 775 (Tex. App.--Austin 2003, pet. ref'd) (citing State v. Eakins , 71 S.W.3d 443, 445 (Tex. App.--Austin 2002, no pet.)).
cited Cited "see" Andres Ramirez Zavala v. State
Tex. App. · 2007 · signal: see · confidence high
See Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d) (citing State v. Eakins, 71 S.W.3d 443 , 445 6 The judgment is dated February 17, 2005.
cited Cited "see" James King v. State
Tex. App. · 2003 · signal: see · confidence high
See Mitchell v. State , 102 S.W.3d 772, 775 (Tex. App.--Austin 2003, pet. filed).
cited Cited "see" James King v. State
Tex. App. · 2003 · signal: see · confidence high
See Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. filed).
discussed Cited "see, e.g." Hernandez v. State
Tex. App. · 2017 · signal: see also · confidence low
Instead, the court held, "the State may rely on the affirmative finding in the prior judgment to prove that the victim of the defendant's previous assault was a family member." Id. ; see also Mitchell v. State , 102 S.W.3d 772 , 775 (Tex. App.-Austin 2003, pet. ref'd) (rejecting defendant's argument that because judgment of previous conviction did not contain article 42.013 affirmative finding there was no evidence that he had prior family-violence conviction and holding that State may meet its burden under Penal Code section 22.01(b)(2) by introducing previous judgment that contains affirmati…
cited Cited "see, e.g." Johnny Francis Scantlin v. State
Tex. App. · 2007 · signal: see, e.g. · confidence medium
See, e.g., Mitchell v. State , 102 S.W.3d 772, 775 (Tex. App. C Austin 2003, pet. ref = d).
Retrieving the full opinion text from the archive…
Tommy Lamont MITCHELL, Appellant,
v.
the STATE of Texas, Appellee
03-01-00658-CR, 03-01-00659-CR.
Court of Appeals of Texas.
Apr 10, 2003.
102 S.W.3d 772
Patricia J. Cummings, Round Rock, for appellant., D. Douglas Arnold, Asst. Dist. Atty., Georgetown, for appellee.
Kidd, Smith, Yeakel.
Cited by 25 opinions  |  Published

OPINION

MACK KIDD, Justice.

In both causes, a jury found appellant Tommy Lamont Mitchell guilty of assaulting, and of having previously been convicted of assaulting, a member of his family or household. Tex. Pen.Code Ann. § 22.01(a), (b)(2) (West Supp.2003). The jury assessed punishment, enhanced by a previous felony conviction, at imprisonment for twenty years. By four points of error, appellant challenges the legal and factual sufficiency of the evidence and complains of the erroneous admission of evidence at both stages of trial. We will overrule these contentions and affirm the convictions.

The indictments alleged that appellant assaulted his wife, Elva Mitchell, on two occasions in 2001. Appellant does not question the sufficiency of the evidence regarding these primary offenses. Instead, he contends the State failed to prove the previous conviction alleged pursuant to section 22.01(b)(2). In that case, Travis County cause number 473860, appellant was convicted in 1997 of assaulting Elva Robb, which the evidence shows was his wife’s name before their marriage. Elva Mitchell testified that she and appellant were living together at the time of the previous offense. See Tex. Fam.Code Ann. § 71.005 (West 1992) (defining “household”).

The judgment of conviction in cause number 473860 does not contain an affirmative finding that the offense involved family violence. See Tex.Code Crim. Proc. Ann. art. 42.013 (West Supp. 2003). Appellant argues that in the absence of such a finding in the judgment, there was no showing that he was convicted of a family violence assault.

A similar contention was presented to this Court in State v. Eakins, 71 S.W.3d 443 (Tex.App.-Austin 2002, no pet.), another prosecution for felony family violence assault. In that case, the district court granted the defendant’s motion to suppress all evidence that he had previously been convicted of assaulting a family member on the ground that the judgment in the previous case did not contain an article 42.013 finding. Id. at 444. The court reasoned that the admission of extrinsic evidence that the earlier conviction involved family violence would constitute a collateral attack on the previous judgment. Id. at 445. We found this reasoning unpersuasive and held that in a prosecution pursuant to section 22.01(b)(2), the absence of an article 42.013 affirmative finding in a previous judgment of conviction for assault does not preclude the introduction of extrinsic evidence that the previous assault was in fact committed against a family member. Id.

Appellant argues that our Eakins opinion is flawed because we did not consider the distinction between “commission” and “conviction.” He urges that unless the judgment of conviction contains an article 42.013 finding, the defendant has not been convicted of family violence assault. He asserts that our opinion in Eakins allows a defendant to be convicted of a felony pursuant to section 22.01(b)(2) upon proof that he committed a previous family violence assault, rather than upon proof that he was previously convicted of such an offense.

[*775] As we pointed out in Eakins, the legislature first prescribed a harsher punishment for defendants guilty of repeated acts of domestic assault in 1989, four years before it adopted article 42.013. Id. at 444. Clearly, the legislature did not intend its 1989 amendment to section 22.01 to be a nullity. Thus, it follows that an affirmative finding was not then required to prove a previous conviction for assault against a family member. We concluded in Eakins that the adoption of article 42.013 did not preclude the State from proving the nature of the previous assault by extrinsic evidence, as it had necessarily done previously. Id. Had the legislature intended an article 42.013 finding to be the only acceptable method for proving a previous conviction for assault with family violence, it would have amended section 22.01 at the same time to so provide.

Section 22.01(b)(2) requires proof that the defendant “has been previously convicted of an offense against a member of the defendant’s family or household under this section.” “This section” means section 22.01. Thus, the State must prove that the defendant has been previously convicted of assault, and that the assault was committed against a member of the defendant’s family or household. The State can meet this burden by introducing a previous judgment of conviction for assault, together with extrinsic evidence that the victim of that assault was a member of the defendant’s family or household. We reject appellant’s argument that proof of a previous conviction for assault against a family or household member necessarily requires an article 42.013 finding in the earlier assault judgment.

Appellant also challenges the adequacy of the extrinsic evidence regarding the previous offense. Elva Mitchell was an obviously reluctant State’s witness, and her testimony regarding her relationship with appellant at the time of the 1997 assault was somewhat ambiguous. Viewing her testimony in the light most favorable to the jury’s verdict, however, it is sufficient to support a rational finding that she was a member of appellant’s household at the time he assaulted her. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981) (standard of review for legal sufficiency). In addition, a neutral review of all the evidence does not demonstrate that Elva Mitchell’s testimony was so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury’s determination. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000) (standard of review for factual sufficiency).

The evidence is legally and factually sufficient to sustain the jury’s finding that appellant had previously been convicted for an assault against a member of his family or household. Points of error one and two are overruled.

Appellant next contends the district court erred during the guilt phase by admitting evidence of extraneous acts of misconduct—assaults against his wife, and incidents of alcohol and cocaine intoxication—that had no relevance other than to prove character conformity. See Tex.R.Evid. 404(b). Appellant does not refer us to any place in the record where a rule 404(b) objection was made and overruled. See id. 103(a)(1); Tex.R.App. P. 33.1(a). In fact, most of the testimony to which he refers was admitted without objection of any kind. Point of error three presents nothing for review and is overruled.

Finally, appellant contends the court erred during the punishment phase by admitting evidence of unadjudicated acts of misconduct that were not proved beyond a reasonable doubt. See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (court may admit evidence of extraneous[*776] crime or bad act that is shown beyond reasonable doubt to have been committed by defendant). Appellant refers us to the testimony of three police officers describing incidents involving appellant and Elva Mitchell for which appellant was not prosecuted. With respect to each incident, appellant asked for a hearing outside the presence of the jury “so that [the State] can prove this offense beyond a reasonable doubt prior to presenting it to the jury.” The prosecutor made brief proffers of the anticipated testimony, but the court overruled the requests for a hearing and did not expressly find that the incidents were proved beyond a reasonable doubt before admitting the testimony. The court later charged the jury not to consider evidence of extraneous crimes or bad acts in assessing punishment unless it was satisfied beyond a reasonable doubt that appellant had committed those crimes or bad acts.

The procedure employed by the district court in these causes was substantially identical to that approved by this Court in Mann v. State, 13 S.W.3d 89, 94 (Tex.App.-Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App.2001). Appellant argues that one of the incidents in question, during which he was said to have pointed a gun at Elva Mitchell’s head, was not proved beyond a reasonable doubt because she had testified at the guilt stage that she did not remember appellant ever pointing a gun at her. It was for the jury, as trier of fact, to resolve the conflict in the testimony. The officers’ testimony supports a finding beyond a reasonable doubt that appellant committed each of the unadjudicated acts to which he refers. Point of error four is overruled.

The judgments of conviction are affirmed.