ZAPATA, RUDY v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0800-23
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RUDY ZAPATA, Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Fourth Court of Appeals
Bexar County
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YEARY, J., delivered the opinion of the Court in which SCHENCK,
P.J., and KEEL, FINLEY, and PARKER, JJ., joined. RICHARDSON, NEWELL,
WALKER, and MCCLURE, JJ., dissented.

The State’s motion for rehearing is granted. The prior opinion of
the Court on original submission in this case is withdrawn.
In this case we consider whether a trial court exceeds its
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authority when it makes and enters an affirmative finding of family
violence when imposing an order of deferred-adjudication community
supervision. 1 The court of appeals decided that a trial court was not so
prohibited. We agree, and so we affirm the court of appeals’ judgment.
I. BACKGROUND
Appellant was charged by information with the Class A
misdemeanor offense of assault causing bodily injury. TEXAS PENAL
CODE § 22.01(a)(1), (b). In exchange for a recommendation that the trial
court impose deferred-adjudication community supervision, but without
an agreement with respect to terms and conditions thereof, Appellant
pled nolo contendere to the charged offense. At the plea hearing, the
State asked the trial court to enter an affirmative finding that the
assault had involved family violence.
Appellant objected to the requested affirmative finding on the
basis that, according to Article 42.013 of the Texas Code of Criminal
Procedure, such a finding can only be entered “in the judgment of the

1 In his petition for discretionary review, Appellant’s sole ground for

review reads: “Does the trial court have the discretion to make an affirmative
finding of family violence during sentencing prior to adjudication?” Appellant
did not object in the trial court that there was no factual basis to support such
an affirmative finding. Nor did he bring a point of error on direct appeal raising
such a claim. Instead, his “sole argument on appeal” was, as identified by the
court of appeals, that such an affirmative finding may only be entered into a
“judgment,” and because there is no judgment in deferred-adjudication
proceedings, such a finding is legally unauthorized. Zapata v. State, 678
S.W.3d 325, 327 (Tex. App.—San Antonio 2023). We limit our discretionary
review to that purely legal question. See, e.g., Davison v. State, 405 S.W.3d 682,
691 (Tex. Crim. App. 2013) (“[I]n our capacity as a discretionary review court,
we review ‘decisions’ of the courts of appeals.”).
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case[.]” TEX. CODE CRIM. PROC. art. 42.013. 2 Because the trial court was
placing Appellant on deferred-adjudication community supervision, for
which there could be no “judgment,” he contended, the trial court could
not make a family-violence affirmative finding. The trial court overruled
Appellant’s objection but gave him permission to appeal the question. 3
On appeal, the Fourth Court of Appeals affirmed the trial court’s
decision to include the affirmative finding. Zapata v. State, 678 S.W.3d
325 (Tex. App.—San Antonio 2023). The court of appeals agreed with
Appellant’s argument that a family violence affirmative finding was not
required by the terms of Article 42.013, since there is no “judgment” in
which it may be entered under those circumstances. Id. at 328. It also
agreed with Appellant that Section 22.01(f)(1) of the Penal Code—which
permits the use of a prior deferred adjudication order as a “previous
conviction” for purposes of elevating a simple assault to a greater level
of offense for a repeat offender—does not somehow render the order
deferring adjudication a “judgment” for purposes of applying Article
42.013. Id.
But the court of appeals nevertheless concluded that a family-
violence affirmative finding was permissible, even if not required, in a

2 Article 42.013 reads, in its entirety: “In the trial of an offense under

Title 5, Penal Code [Offenses Against the Person], 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 that
affirmative finding in the judgment of the case.”

3 This Court has found authority for an appeal from an order deferring

adjudication in Article 44.01(j) of the Texas Code of Criminal Procedure.
Dillehey v. State, 815 S.W.2d 623, 625−26 (Tex. Crim. App. 1991).
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deferred-adjudication context. See id. at 329−30. It determined this to
be so based on two other provisions in the Code of Criminal Procedure
that separately govern deferred adjudication and community
supervision. See id. at 330 (“We conclude [that] articles 42A.104(a) and
42A.504(b), operating together, gave the trial court discretion to make
an affirmative finding of family violence in this case.”). We granted
Appellant’s petition for discretionary review to examine this holding. We
will affirm.
II. ANALYSIS
First, nothing about Article 42.013’s mandate—that family-
violence affirmative findings, when made in the course of ordinary trials,
must be “enter[ed] . . . in the judgment of the case[,]”—prohibits a court
from making family-violence affirmative findings in other, unnamed
contexts. See Chase v. State, 448 S.W.3d 6, 14 (Tex. Crim. App. 2014)
(observing that the “negative implication” doctrine “depends on context”
and “does not apply unless it is fair to suppose that the legislature
considered the unnamed possibility and meant to say no to it”) (internal
brackets and quotation marks omitted). Indeed, as the court of appeals
also observed, there is another mandatory statute that explicitly
requires that certain affirmative findings be made and filed “with the
papers in the case” in orders granting deferred-adjudication community
supervision. See TEX. CODE CRIM. PROC. art. 42A.105 (mandating that
certain affirmative findings in deferred-adjudication cases be filed “with
the papers in the case” when the trial court “determines” they are
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warranted). 4 It cannot possibly be accurate to say, then, as Appellant
would have us do, that Article 42.013’s requirement of such a finding in
a different situation categorically rules out affirmative findings in
orders conferring deferred-adjudication community supervision.
It is true, of course, as Appellant points out, that a family-violence
affirmative finding is not among those findings that Article 42A.105
explicitly requires to be filed “with the papers of the case” when deferred-
adjudication community service is granted. Appellant’s Initial Brief at
9−10. Appellant contends that “[i]t appears the absence of an affirmative
finding of family violence in [Article 42A.105] indicates the legislature’s
intention to prohibit such findings for those receiving deferred
adjudication.” Id. at 9. Appellant would essentially have us apply the
maxim of statutory construction known as expressio unius est exclusio
alterius to hold that a family-violence affirmative finding is statutorily
prohibited by negative implication.
But the expressio unius est exclusio alterius maxim “must be
applied with great caution, since its application depends so much on
context.” Antonin Scalia & Brian A. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS at 107 (2012). “The maxim does not
mean that anything not required is forbidden.” Norman J. Singer &
Shambie Singer, SUTHERLAND: STATUTES AND STATUTORY
CONSTRUCTION § 47:25 (7th ed. 2014) at 444−45. The fact that Article
42A.105 mandates that certain affirmative findings be made in certain

4 For example, Article 42A.105, subsections (a) through (c), require that

affirmative findings be made and filed in the papers in the case when the trial
court determines that the victim of certain offenses are younger than a certain
age. TEX. CODE CRIM. PROC. art. 42A.105 (a), (b), (c).
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deferred-adjudication cases does not necessarily foreclose the possibility
that a trial court would be permitted, in its discretion, to make and file
other kinds of affirmative findings—say, for example, a family-violence
affirmative finding—“with the papers of the case” where appropriate.
Article 42A.105, on its face, simply does not speak to the question of
when it might be permissible for trial courts to enter other affirmative
findings. And there are good contextual reasons to conclude, as the court
of appeals did, that an affirmative finding of family violence would be
particularly appropriate in cases like this one. Zapata, 678 S.W.3d at
329−30.
Under Article 42A.104(a), a trial court is authorized to “require
any reasonable condition of deferred adjudication community
supervision that a judge could impose on a defendant placed on
community supervision for a conviction that was probated and
suspended[.]” TEX. CODE CRIM. PROC. art. 42A.104(a). Article
42A.504(b), in turn, requires a trial court, as a condition of regular
community supervision—in cases where the defendant is “convicted of
an offense under Title 5, Penal Code [Offenses Against the Person], that
the court determines involves family violence”—to order the defendant
“to pay a fine of $100 to a family violence center[.]” TEX. CODE CRIM.
PROC. art. 42A.504(b). It may also (but is not required to) order a family-
violence probationer to attend a battering intervention and prevention
program, or, failing that, counseling sessions with an appropriately
licensed professional. TEX. CODE CRIM. PROC. art. 42A.504(c). 5

5 It appears from the record that the trial court in this very case did in

fact impose both of these conditions of deferred-adjudication community
supervision.
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Under Article 42A.104(a), a trial court placing an offender on
deferred-adjudication community supervision “may” impose either of
these conditions of probation. TEX. CODE CRIM. PROC. art. 42A.104(a).
Whether a defendant who is to be placed on deferred-adjudication
community supervision has committed a crime involving family violence
is therefore a relevant question, the answer to which would be
appropriate to memorialize in the court’s deferred-adjudication order, or
at least among the papers of such a case. Also, the entry of an affirmative
finding of family violence “with the papers in the case” can facilitate, or
at least help to explain, the trial court’s imposition of these relevant
conditions of deferred-adjudication community supervision.
III. CONCLUSION
Because nothing in the language of either Article 42.013 or Article
42A.105 forecloses such a family-violence affirmative finding, we
conclude, as did the court of appeals, that such a finding falls squarely
within the trial court’s discretion. The judgment of the court of appeals
is, accordingly, affirmed.

DELIVERED: February 5, 2025
PUBLISH