Opinions Released June 1, 2017

Davis v. State, Nos. 13-15-00355-CR & 13-15-00356-CR (Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Rodriguez)

In this appeal from a conviction for assault with a deadly weapon and felony assault family violence, the Thirteenth Court of Appeals held—as a matter of first impression—that cellmates do not qualify as members of the same household within the meaning of the assault family violence statute.

Steven Davis was cellmates with Vernon Pullin at the Gonzalez County jail. Pullin verbally abused the jailers, prompting the jailers to remove the television from the jail cell. Davis complained that this punishment was unfair to him.

Davis warned that if he was not placed in a different cell he would “handle it himself” and “problems would occur.” Later, Pullin knocked on the window and asked to be removed. When Pullin attempted to alert the jailers a second time, the jailers looked into the cell in time to see Davis hit Pullin in the back of the head with a closed fist, causing Pullin to hit his head on the window ledge. Davis continued punching Pullin, and Pullin assumed a defensive position, blocking his face with his hands. Pullin was taken to the hospital and received stiches on his nose, as well as treatment for bruises on his temple and eye.

Davis was charged with assault using a deadly weapon—i.e., his hands—and felony assault family violence with a prior conviction for the same. Pullin testified at trial that Davis warned him from the moment he got up that morning that “it’s time to fight,” and that Davis “wasn’t going to pay for someone else’s problems.” Pullin was trying to alert the guard to this issue when Davis hit him in the back of the head. Pullin further testified that he still has a scar from the incident and that parts of his head were numb.

Deputy Travis Vega and Deputy Belin both testified that a fist could cause serious bodily injury, particularly if used multiple times to the face area.

The hospital nurse testified regarding the stiches and treatment administered. The medical records reflected that Pullin was in the emergency room for less than an hour and was alert and oriented throughout. Pullin was told to continue treating his wounds at home with Neosporin, a topical antibiotic, and bandages, taking Tylenol as needed.

Finally, Davis testified that the fight was mutual and that Pullin only attempted to alert the jailers after he “started to lose.” Davis’s written statement to the Gonzalez County Sheriff was also admitted, in which he claimed that the jailers were to blame for Pullin’s assault because by they refused to punish him and left his punishment to the other inmates.

The jury found Davis guilty and sentenced him to sixty years’ confinement on each count, to be served concurrently. Davis appealed.

Held: The evidence was insufficient to support either of Davis’s convictions because Davis was not a member of the same household as his cellmate, and his hands were not used as deadly weapons. The trial court’s judgment was reformed to reflect a single conviction for assault causing bodily injury, and the case was remanded.

Members of the same household

First, Davis challenged the sufficiency of the evidence to support the finding that he and Pullin were members of the same household. The Thirteenth Court reiterated the rule that evidence is sufficient if any rational factfinder could have found the challenged element beyond a reasonable doubt based on a hypothetically correct jury charge that accurately states the law. Any inconsistencies in the evidence or credibility determinations are resolved in favor of the verdict.

The court then proceeded to interpret the meaning of the phrase “members of the same household” in the assault family violence statute to determine if cellmates fell within the scope of the provision. This was a matter of first impression in Texas.

The court began by comparing the definition of a “household” to that of a jail or correctional facility. Section 71.005 of the Texas Family Code defines “household” as “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Neither “dwelling” nor “living together” are defined in the Penal Code or the Family Code. The court thus construed these terms according to their ordinary meanings. The dictionary defines a “dwelling” as a “shelter (as a house) in which people live,” and “living” as “to dwell” or “occupy a home.” In contrast, the Penal Code defines a “correctional facility” including a county jail as “a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense.” The Code further clarifies that the purpose of a correctional facility is to deter future crime and rehabilitate offenders to prevent recurrence; not to live long-term. Jails involve involuntary confinement, while dwellings involve the voluntary decision to reside together. Thus, the word “household” as used in the Texas Family Code and referenced in the assault family violence statute does not encompass cellmates in a jail. As such, there was legally insufficient evidence to support Davis’s conviction for assault family violence.

Deadly weapon

Davis also challenged the sufficiency of the evidence to support the jury’s finding that he used a deadly weapon to injure Pullin. Specifically, Davis argued that his hands did not constitute deadly weapons and that Pullin’s minimal injuries demonstrated as much.

The Penal Code defines a deadly weapon to include “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” The Texas Court of Criminal Appeals has held that hands can qualify as deadly weapons depending on the context and evidence.

The State was required to prove that Davis’s hands were used in a manner capable of causing death or serious bodily injury, meaning a substantial risk of death, serious disfigurement, or loss of a bodily member. The case law has upheld findings that a defendant’s hands were used as deadly weapons, where the injuries involved unconsciousness, vision issues, brain or other internal organ problems, or strangulation.

Here, Pullin suffered bruises, numbness, and lacerations from the assault. He stayed in the hospital for less than an hour before being discharged, with no indication that he would need additional medical treatment other than having his stiches removed. Although Deputies Vega and Belin testified that hands could constitute deadly weapons, their testimony was hypothetical. Thus, the evidence established only the hypothetical ability to use hands as deadly weapons, and it was legally insufficient to establish that Davis used his hands in a manner capable of causing death or serious bodily injury.

Ineffective assistance of counsel

Finally, Davis claimed he was denied effective assistance of counsel because his attorney failed to (a) suppress his written statement; (b) object to expert testimony; (c) object to the introduction of his prior convictions into evidence; (d) introduce evidence that the record of alert calls from the jail cell was deleted; (e) request a jury instruction regarding mutual combat; and (f) impeach Pullin with his prior assault family violence convictions. Since Davis did not raise the issue below, there was no evidentiary record regarding his claims of ineffective assistance of counsel. Consequently, the court of appeals presumed that Davis’s counsel’s actions were reasonable and professional unless Davis could establish that the conduct was so outrageous no competent attorney would have acted similarly.

Suppression of Written Statements

Davis argued that his written statement was inadmissible because it did not contain the Article 38.22 warnings, and that his counsel was ineffective by failing to file a motion to suppress. The Thirteenth Court of Appeals noted that a failure to file a motion to suppress is not ineffective unless the motion would have been granted. Regarding Article 38.22, the provision provides for protections in custodial interrogations. However, interrogation of an inmate is not necessarily custodial if the interrogation relates to a crime other than that for which the inmate is incarcerated. Thus, the Texas Court of Criminal Appeals has held that a movant must establish that the interrogation was custodial in nature based on (1) the language used in the summons; (2) the physical surroundings; (3) any confrontation regarding evidence showing the inmate’s guilt; (4) the pressure used to detain the inmate or restrict his freedom of movement; and (5) the freedom to leave the scene and the purpose, location, and duration of interrogation. Here, Deputy Vega came to Davis’s cell and asked him what happened, then requested a written statement of “whatever he felt he needed to put.” The record thus provided insufficient evidence to conclude that Davis was in custody when he gave the statement. Consequently, Davis could not establish that the motion to suppress his counsel failed to file would have been granted.  

Expert Testimony

Davis next claimed that his counsel was ineffective for failing to object to expert testimony on the deadly weapons issue when no expert notice was given. However, the record reflected that expert notice was given. Thus, his counsel was not ineffective.

Prior Convictions

Davis challenged his attorney’s failure to object to the admission of extraneous evidence regarding his two prior convictions for assault family violence. However, the Thirteenth Court noted that the State was required to prove a prior conviction for assault family violence as an element of the felony assault family violence offense. Evidence of Davis’s prior convictions was thus admissible unless Davis stipulated to the convictions, which he refused to do. Thus, there was no evidence that an objection to the admission of the extraneous offenses would have been granted.

Jail Records

Davis further claimed that his counsel was ineffective for failing to admit evidence of deleted calls made on the jail’s intercom alert system from his cell to the control room. The record reflected however, that Davis’s counsel notified the trial court of this missing evidence before trial, and the State responded that the jail’s intercom system automatically records over older calls. Davis’s counsel moved for a mistrial, but the mistrial was denied. Davis’s counsel then introduced evidence of the missing recordings through the testimony of a jail employee during trial. The Thirteenth Court held that any failure to further develop this issue was not outrageous.

“Mutual Combat” Instruction

Davis next argued that his counsel was ineffective because he failed to request a mutual combat jury instruction. A court is required to charge a jury regarding consent or mutual combat if the evidence raises the issue of the victim’s consent to the conduct, and an antecedent agreement to fight. However, there was no evidence that Pullin agreed to fight Davis. In fact, the record established that Davis repeatedly threatened Pullin and hit him in the back of the head while Pullin was trying to get the jailers’ attention. Thus, Davis’s counsel was not ineffective for failing to request the mutual combat instruction.

Failure to Impeach Pullin

Lastly, Davis claimed his counsel was ineffective for failing to impeach Pullin with Pullin’s prior misdemeanor assault family violence convictions. Instead, Davis’s counsel agreed with the State that Pullin could only be impeached with his felony convictions. This was in accordance with Texas Rule of Evidence 609, which limits the crimes available for impeachment to prior felony convictions or misdemeanor convictions for crimes involving moral turpitude. Although Texas courts have recognized an exception for assaults committed by a male against a female or child, there was no evidence in the record regarding the victims of Pullin’s prior assaults. Thus, the record did not establish that Davis’s counsel was ineffective.

Having rejected each challenge to Davis’s attorney’s conduct, the Thirteenth Court held that Davis was not denied effective assistance of counsel.


After ruling on each of Davis’s issues on appeal, the Thirteenth Court examined whether to grant an outright acquittal on the charges involving legally insufficient evidence, or to reform the judgment to reflect a lesser-included offense. The court noted that reformation is proper where (1) the conviction for the greater offense necessarily required a finding of every element necessary for a conviction of the lesser-included offense; and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Here, in convicting Davis of the two offenses the jury necessarily found—for each count—that all of the elements of assault causing bodily injury were met. However, two convictions for assault based on the same event would violate Davis’s freedom from double jeopardy. Thus, the judgment was reformed to reflect a single assault causing bodily injury conviction. The court remanded the case for a punishment hearing.

Read the Full Opinion Here

Pelloat v. McKay, No. 13-15-00456-CV (Memorandum Opinion by Justice Benavides; Panel Members: Justices Rodriguez and Contreras)

In this appeal from a QDRO, the Thirteenth Court analyzed the trial court’s authority to issue a QDRO and the proper formula for distribution of community property retirement benefits.

James and Katherine married in 1987 and divorced in April 2011. The court awarded Katherine her retirement plan as her sole separate property. The court further held that 37% of James’s retirement account was his separate property, while the rest belonged to the community estate. The court awarded Katherine 75% of the community share of the retirement account. The divorce decree was appealed on procedural issues, and a final mandate was issued on July 11, 2013.

In February 2015, Katherine filed a motion to enter a QDRO to reflect the current retirement system requirements. James filed numerous responsive motions, including a motion for a bench warrant with discovery requests attached. The trial court denied James’s motions and held a hearing on Katherine’s motion.

At the hearing, James first complained that Katherine had not responded to his discovery. However, James could not prove that he had served the document on Katherine.  Secondly, James alleged that he had a counter-claim based on his community interest in Katherine’s retirement plan. The trial court recited the language in the original divorce decree finding Katherine’s retirement plan to be her separate property and denied James’ counter-claim. After the hearing, the court entered a QDRO distributing James’s retirement benefits based on the following formula: [% community property awarded] x [standard annuity based on salary and service during marriage] / [standard annuity based on salary and service at the time of distribution].

James appealed.

Held: The trial court did not abuse its discretion in entering the QDRO or structuring the formula for distribution of retirement benefits. The judgment was affirmed.


James first argued that the trial court erred by failing to allow him to conduct discovery. However, the record showed that James attached his discovery requests to his motion for a bench warrant. Thus, while there was evidence that James sent his discovery to the court, there was no evidence—including no certificate of service—to establish that James actually served the requests on Katherine or her attorney. The issue was overruled.


James also claimed he lacked notice of what would be discussed at the hearing, depriving him of the opportunity to prepare. However, James never raised this issue before the trial court, and thus failed to preserve any error for appellate review.


James next challenged the formula established by the trial court in the QDRO to govern the distribution of retirement benefits. The Thirteenth Court noted that QDROs are final, appealable, post-divorce enforcement orders that fall within the trial court’s continuing jurisdiction to clarify its divorce decree. A QDRO is warranted where the court has not issued a previous QDRO regarding the payment of benefits, or the plan administrator has determined that the prior QDRO does not meet the necessary requirements. Here, the trial court’s formula mirrored the formula approved in Taggart v. Taggart, allowing each spouse to recover retirement benefits for the period of the marriage, multiplied by their share of the community property. 552 S.W.2d 422 (Tex. 1977). Thus, the trial court did not abuse its discretion.

Community Property Division

James further claimed that the division of community property in the final divorce decree was an abuse of discretion.  However, if the division set forth in a final divorce decree is not timely challenged in an appeal, res judicata prohibits a later collateral attack unless the trial court lacked jurisdiction to render judgment. Consequently, James’s attack on the decree was barred by res judicata.

Violations by Katherine’s Counsel

Finally, James argued that Katherine’s attorney acted inappropriately regarding the QDRO. However, this issue was not raised before the trial court, and any error was waived. 

Having rejected each of James’s challenges to the QDRO, the Thirteenth Court affirmed the trial court’s judgment.

Read the Full Opinion Here