IN THE TENTH COURT OF APPEALS No. 10-18-00262-CR MIKAEL DEANDRE BUSBY, Appellant v. THE STATE OF TEXAS, Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 14163-A

OPINION

In one issue, appellant, Mikael Deandre Busby, challenges his conviction for felony assault family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Specifically, Busby contends that the evidence supporting his conviction in this case is insufficient because trial evidence showed that he is “actually innocent” of the underlying misdemeanor assault family violence allegation. We affirm.

In the instant case, Busby was charged with assault family violence under section 22.01(a)(1), which was enhanced by his prior conviction for assault family violence under section 22.01(b)(2)(A). See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A). Section 22.01(a)(1) of the Texas Penal Code provides that a person commits the offense of assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” Id. § 22.01(a)(1). An offense under subsection (a)(1) may be enhanced from a Class A misdemeanor to a third-degree felony if the offense is committed against, a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005 of the Family Code, if: (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005 of the Family Code. Id. § 22.01(b)(2)(A); see Simmons v. State, 590 S.W.3d 702, 708-09 (Tex. App.—Waco 2019, pet. filed).

On appeal, Busby focuses on the section 22.01(b)(2)(A) enhancement element regarding his prior conviction for misdemeanor assault family violence. 1 At trial, the State presented a certified copy of Busby’s prior judgment for Class A misdemeanor

Busby v. State Page 2 assault family violence, dated September 14, 2016, in cause number 38166. The judgment indicated that Busby pleaded guilty to the charged offense. Busby did not object to the admission of this evidence. Furthermore, the State offered the testimony of Murray Agnew, a fingerprint expert and Chief Deputy of the Limestone County Sheriff’s Office, to show that Busby’s fingerprint matches the fingerprint on the 2016 judgment.

Additionally, the State presented certified copies of the complaint, information, and waiver of rights in the 2016 case. This is sufficient evidence to prove the element of a prior conviction involving assault family violence to enhance the charged offense in this case to a third-degree felony. See Reyes v. State, 314 S.W.3d 74, 81-82 (Tex. App.—San Antonio 2010, no pet.); see also Tanner v. State, 335 S.W.3d 784, 786 (Tex. App.—Amarillo 2011, no pet.) (citing Vaughn v. State, No. 06-06-0040-CR, 2007 Tex. App. LEXIS 3608, at **6-7 (Tex. App.—Texarkana May 11, 2007, no pet.) (mem. op., not designated for publication)).

However, despite the foregoing, Busby directs us to testimony from the complainant, A.B., who testified that the 2016 incident involved her hitting Busby when he started cussing at her. A.B. further noted that she continued to hit Busby until Busby turned around and shoved her to the ground, allegedly causing no bodily injury to A.B.2 Ostensibly, what Busby attempts to do on appeal is collaterally attack the sufficiency of

Busby v. State Page 3 the evidence supporting his 2016 conviction for misdemeanor assault family violence— an offense to which he pleaded guilty.

Appellant may collaterally attack a prior conviction alleged for enhancement only if the earlier conviction is void or tainted by a severe constitutional defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979). However, the Court of Criminal Appeals has held that “the sufficiency of the evidence may not be collaterally attacked.” Wolfe v. State, 560 S.W.2d 686, 688 (Tex. Crim. App. 1978) (emphasis added); see Ex parte Williams, 703 S.W.2d 674, 677 (Tex. Crim. App. 1986).

For a collateral attack based on the void-judgment exception, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence. See Nix v. State, 65 S.W.3d 664, 668 n.14 (Tex. Crim. App. 2001); see also Wolfe, 560 S.W.2d at 688. Appellant’s guilty plea constitutes some evidence to support his 2016 conviction for misdemeanor assault family violence. See Nix, 65 S.W.3d at 668 n.14; see also Ex parte Williams, 703 S.W.2d at 682 (“The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge. A plea of guilty waives all nonjurisdictional defenses including contention as to the insufficiency of the evidence.” (internal citations omitted)). Therefore, Busby’s complaint does not raise the void-judgment exception, and he may not now challenge the sufficiency of the evidence as to his 2016 conviction by way of his appeal of his conviction for felony assault family

Busby v. State Page 4 violence.3 See id.; see also Ex parte Williams, 703 S.W.2d at 677; Galloway, 578 S.W.2d at 143; Wolfe, 560 S.W.2d at 688. Moreover, viewing the evidence in the light most favorable to the jury’s verdict, we conclude that there is sufficient evidence to support Busby’s conviction in this case for felony assault family violence. See TEX. PENAL CODE ANN. § (b)(2)(A); see also Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018) (stating the standard of review for challenges to the sufficiency of the evidence supporting a conviction). Accordingly, we overrule Busby’s sole issue on appeal.

We affirm the judgment of the trial court.

JOHN E. NEILL Justice

App. 2007) (“A defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of that illegal leniency. . . . Had he complained about the illegal leniency at the time of trial or even on direct appeal, the State could likely have obtained a legal judgment that would not be available for enhancement purposes. But instead, appellant quietly enjoyed the benefits of the illegally lenient judgment, challenging it now only because, due to his own subsequent criminal conduct, the judgment can be used to enhance his punishment for a new offense. If he agreed to the concurrent sentencing provision, then through his own conduct he helped procure and benefit from the illegality and he should not now be allowed to complain.” (internal citation omitted)).

Busby v. State Page 5 Before Chief Justice Gray, Justice Neill, and Justice Johnson (Chief Justice Gray concurring) Affirmed Opinion delivered and filed March 3, 2021 Publish [CR25]

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