TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00522-CV
In re The State of Texas, ex rel. Jennifer A. Tharp
ORIGINAL PROCEEDING FROM COMAL COUNTY
MEMORANDUM OPINION
Relator the State of Texas, acting by and through Jennifer A. Tharp, the Criminal
District Attorney for Comal County, Texas, filed a petition for writ of mandamus seeking
mandamus relief against Respondent, the Honorable Dibbrell “Dib” Waldrip, presiding judge of
the 433rd District Court of Comal County, Texas. The petition complains that Respondent
abated an affirmative finding of family violence and a family-violence fine in the judgment of
conviction for Eric Wray Fabian, real party in interest, whom a jury had convicted of the offense
of assault causing bodily injury, family violence. Having considered the petition and the record
provided, we will conditionally grant the petition. 1
BACKGROUND
The State charged Fabian with the felony offense of continuous violence against
the family. The indictment alleged that on two occasions, Fabian intentionally, knowingly, or
recklessly caused bodily injury to Kay Reed (a pseudonym) by striking her with his hand on
January 12, 2021, and by pushing her with his hand on December 26, 2021, and that Reed was a
1 This Court requested but did not receive a response to the petition from the real party in interest.
person whose relationship to or association with the defendant is described by Section
71.0021(b), 71.003, or 71.005 of the Texas Family Code. Following trial, the jury acquitted
Fabian of that offense but found him guilty of the lesser-included misdemeanor offense of assault
causing bodily injury, family violence. The district court rendered judgment on the jury’s
verdict, finding “that the defendant is, in fact, guilty of the lesser‐included offense of assault
family violence,” and reset the matter for punishment.
At the hearing on punishment, the district court sentenced Fabian to 365 days’
confinement in the Comal County Jail, probated for two years, and assessed a $1,000 fine. The
district court also announced that it would “assess or impose the Batterer’s Intervention
Program” as a condition of probation “but will hold that in abeyance.” The district court
explained its reasoning for abating that condition:
The whole point is I want there to be some carrot. But the first missed probation,
the first missed color, the first dirty color, the first whatever, that’s the—they’re
going to come to you and say, remember, Judge said we’re removing the
abeyance, going straight into the Batterer’s Intervention Program. We’re not
going to wait around. It just happens automatically basically.
The State then requested that the district court make an affirmative finding of
family violence. The district court asked about “the ramification of that,” and the State
explained that “a second conviction for an assault family violence can be charged as a
third‐degree felony and it also—by statute it imposes a hundred‐dollar fine as a condition of
probation.” The district court asked the parties whether they believed “that finding can be made
but abated as part of the conditions of probation.” The State did not believe that it could. The
district court then compared a family-violence finding to a deadly-weapon finding, which it
believed could be abated in cases of deferred adjudication. The district court expressed
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uncertainty as to whether a family-violence finding could be similarly abated in this case but
remarked, “I think—I mean, it’s legal until somebody complains. So if y’all want to complain,
you can complain.” The district court continued, “My point is, put it in there, but just abate it—
or not abate it, but de—what do we say if we impose a condition, but—or hold it in abeyance,
not abate but—it’s abatement [sic], yeah.” Defense counsel then posited that the family-violence
finding could be included in a “secondary judgment” if Fabian’s probation were to be revoked at
a later point in time. The district court replied, “Right.”
The State then argued, “I believe it’s also on the verdict form. We charged it
assault causing bodily injury, family violence. I’d ask the Court to enter a finding since the jury
did enter a finding.” Defense counsel disputed that, and the district court asked, “Was there a
special question?” Defense counsel replied, “There was not a special question like there would
be in a deadly weapon situation.” The State acknowledged, “There was not.” The district court
stated that it was “comfortable with using [the finding] as an incentive” but added, “As I say, I
don’t know if it’s legal or not.” Over the State’s objection, the district court decided to abate the
finding and to “abate the extra hundred-dollar fine just so it’s there.” The district court explained
its reasoning as follows: “I think there’s reason to incentivize good behavior, whether it’s alcohol
addiction or it’s violence that comes from those types of addictions, but also whatever thorn is
behind the addiction; right? So that’s the reason for it and that will be the sentence of the Court.”
The State later filed a proposed judgment that included an affirmative finding of
family violence and reiterated its objection to the district court abating that finding, adding that it
would file a mandamus petition if necessary. The district court nevertheless crossed out the
“affirmative” finding of family violence on the proposed judgment and included a handwritten
notation that the finding was “yet to be determined” and that the State’s objection was
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“premature.” The district court also did not check the box in the judgment providing for a
“family violence fine” of $100. 2 This mandamus proceeding followed.
STANDARD OF REVIEW
To obtain mandamus relief in a criminal case, a relator must establish two things.
First, she must show that she has no adequate remedy at law to redress her alleged harm. In re
State ex rel. Ogg, 692 S.W.3d 481, 484 (Tex. Crim. App. 2024) (citing In re State ex rel. Young,
236 S.W.3d 207, 210 (Tex. Crim. App. 2007)). The first requirement is satisfied either when
there is no remedy at law or the remedy, “though it technically exists, ‘may nevertheless be so
uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed
inadequate.’” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (quoting
Greenwell v. Court of Appeals for Thirteenth Jud. Dist., 159 S.W.3d 645, 648–49 (Tex. Crim.
App. 2005)). Second, she must show that the act she seeks to compel is “ministerial” rather than
discretionary. Ogg, 692 S.W.3d at 484. “This second requirement is satisfied if the relator can
show she has a clear right to the relief sought—that is, when the facts and circumstances dictate
but one rational decision under unequivocal, well-settled, and clearly controlling legal
principles.” Id.
2 We also note that although the judgment correctly lists the offense Fabian was convicted of as ‘Assault causing bodily injury family violence,’ which corresponds to Section 22.01(a)(1) of the Penal Code, it incorrectly lists Section 22.01(a)(2) of the Penal Code as the statute for the offense. However, the State has not requested the district court to modify the judgment to list the correct offense, and absent such a request, we may not direct the district court to do so here. See In re Cullar, 320 S.W.3d 560, 564 (Tex. App.—Dallas 2010, orig. proceeding) (“Generally, entitlement to mandamus relief is subject to establishing three requisites: a legal duty to perform a non-discretionary act, a demand for performance, and a refusal.”).
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DISCUSSION
No adequate remedy at law
A trial court’s failure to make an affirmative finding of family violence is not
among the limited actions that the State may appeal. See Tex. Code Crim. Proc. Ann. art. 44.01
(listing actions that State is permitted to appeal). Because the State cannot appeal the district
court’s action, the first mandamus requirement is satisfied. See State ex rel. Rosenthal v. Poe,
98 S.W.3d 194, 203 (Tex. Crim. App. 2003) (citing State v. Patrick, 86 S.W.3d 592, 594 (Tex.
Crim. App. 2002); State ex rel. Curry v. Gray, 726 S.W.2d 125, 127-28 (Tex. Crim. App. 1987)).
Ministerial duty
Article 42.013 of the Code of Criminal Procedure provides, “In the trial of an
offense under Title 5, Penal Code,” which includes assault, “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 the affirmative finding in the judgment of the
case.” Tex. Code Crim. Proc. art. 42.013. Similarly, Article 42A.504 provides, “If a judge
grants community supervision to a defendant convicted of an offense under Title 5, Penal Code,
that the court determines involves family violence, the judge shall require the defendant to pay a
fine of $100 to a family violence center.” Id. art. 42A.504(b). That article similarly provides
that “‘family violence’ has the meaning assigned by Section 71.004, Family Code.” Id. art.
42A.504(a)(1). Section 71.004 of the Family Code defines “family violence” in relevant part as
“an act by a member of a family or household against another member of the family or
household that is intended to result in physical harm, bodily injury, assault, or sexual assault.”
Tex. Fam. Code § 71.004(1).
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Thus, the statutory language is clear—if the trial court determines that the offense
involved family violence, then the trial court is required make an affirmative finding of that fact,
to enter that affirmative finding in the judgment of the case, and, if the court grants community
supervision (as it did here), require the defendant to pay a fine of $100 to a family violence
center. See Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) (“[T]he trial court is
statutorily obligated to enter an affirmative finding of family violence in its judgment, if during
the guilt phase of trial, the court determines that the offense involved family violence as defined
by Tex. Fam. Code § 71.004(1).”); see also Tex. Gov’t Code § 311.016(2) (providing that under
Code Construction Act, “‘shall’ imposes a duty”); In re Guerrero, 710 S.W.3d 798, 804 (Tex.
Crim. App. 2025) (“The use of the word ‘shall’ generally indicates a mandatory duty.”). The
question here is whether the district court determined that the offense involved family violence.
We conclude that it did, although the answer is not as straightforward as the State
suggests. It is true that the jury found Fabian guilty of the offense of assault causing bodily
injury, family violence, and that the district court rendered judgment on the jury’s verdict,
finding “that the defendant is, in fact, guilty of the lesser‐included offense of assault family
violence.” However, that finding of guilt did not necessarily include a finding that the offense
involved family violence. Again, family violence is defined in relevant part as “an act by a
member of a family or household against another member of the family or household that is
intended to result in physical harm, bodily injury, assault, or sexual assault.” 3 Tex. Fam. Code
§ 71.004(1) (emphasis added). But the offense of “assault causing bodily injury, family
3 The definition of family violence also includes “a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” Tex. Fam. Code § 71.004(1). However, the State did not charge a threat-based offense, and we express no opinion on the mens rea required to commit family violence in the context of a threat-based offense.
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violence,” does not incorporate that definition. Instead, a person commits assault causing bodily
injury, family violence, if the person “intentionally, knowingly, or recklessly causes bodily
injury to another, including the person’s spouse,” and the offense is committed against “a
member of defendant’s family or member of defendant’s household or a person with whom the
defendant has or has had a dating relationship as described by Section 71.003 or 71.005 or
71.0021(b) of the Texas Family Code.” Tex. Penal Code § 22.01(a)(1), (b)(2).
The court’s charge to the jury included the above definition of assault, but it
included no definition of family violence or any reference to Section 71.004 of the Family Code.
Moreover, even if the jury had found that the offense involved family violence, it is the judge
and not the jury that makes the required family-violence finding. See Boas v. State, 604 S.W.3d
488, 493 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“The trial court is permitted to make
such a finding if it—not the jury—determines that the offense involved family violence.”); see
also Butler, 189 S.W.3d at 302 (“[T]he plain language of [Article 42.013] assigns the
responsibility for making the family violence determination solely to the trial court . . . .”). Thus,
we cannot conclude from the jury’s finding of guilt that the district court determined that the
offense involved family violence. The guilty verdict on which the district court rendered
judgment could have been based on a belief that Fabian had knowingly or recklessly assaulted
Reed, which would not support a finding of family violence. 4 See Tex. Fam. Code 71.004(1)
4 The State also argues that the evidence presented at trial “conclusively establishes” that family violence occurred and that “the trial court is bound by conclusive facts.” However, the State failed to provide this Court with a complete reporter’s record of Fabian’s trial. The victim and the investigating officer testified on two days during the guilt / innocence phase of trial, but the record submitted by the State does not include the first day on which they testified. Most of the victim’s testimony about the alleged events and most of the officer’s testimony about the investigation occurred on that first day. We are unable to conclude on the record provided to us that the State “conclusively” established that the offense involved family violence as that term is defined by Section 71.004 of the Family Code.
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(requiring intentional conduct to support an affirmative family-violence finding); see also
Meinzer v. State, No. 02-23-00005-CR, 2024 WL 1100478, at *5-8 (Tex. App.—Fort Worth
Mar. 14, 2024, no pet.) (mem. op., not designated for publication) (discussing family-violence
finding in context of assault conviction, including “a potential variance in the culpable mental
states,” but concluding that “[b]ecause the jury is not required to find family violence” to support
assault conviction, “the trial court can decide the family violence issue independently of
the jury”).
Nevertheless, it is apparent from the hearing on punishment that the district court
had determined that the offense involved family violence. The record reflects that the district
court abated the family-violence finding not because it had not made the finding but because it
wanted to “incentivize good behavior.” In referencing the family-violence finding, the district
court stated, “My point is, put it in there, but just abate it.” In other words, the district court had
determined that the offense involved family violence so that it could be placed in the judgment,
but the district court wanted to abate that finding, “using it as an incentive” to ensure that Fabian
complied with the conditions of his probation. Using the finding to “incentivize behavior”
implies that the district court had already determined that the offense involved family violence
but was purposefully delaying the entry of that finding into the judgment. Additionally, when
defense counsel asserted that the family-violence finding could be included in a “secondary
judgment” if Fabian’s probation were to be revoked at a later point in time, the district court
replied, “Right,” which further indicates that the district court had determined that the offense
involved family violence but believed it could include that finding in a later judgment.
Also, the family-violence fine and the batterer’s intervention program are “special
conditions” that apply specifically in probation cases where “the offense involved family
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violence.” See Tex. Code Crim. Proc. art. 42A.504(b), (c)(1). The district court’s consideration
of those conditions in this case is another indicator that the district court had determined that the
offense involved family violence. Particularly instructive is the district court’s admonishment to
Fabian that if he violated his probation, the district court would “automatically” remove the
abeyance of the batterer’s intervention program, which meant that the district court had
determined that Fabian’s participation in the program was justified because the offense involved
family violence. See id. art. 42.141 (authorizing batterer intervention program and defining
batterer as “a person who commits repeated acts of violence or who repeatedly threatens violence
against another” who is former spouse of, related to, or resides with that person).
In sum, we conclude that the record establishes that the district court determined
that the offense involved family violence. Accordingly, the district court had a ministerial duty
to make an affirmative finding of family violence, to enter that affirmative finding in the
judgment of the case, and, because it had placed Fabian on community supervision, to require
him to pay a fine of $100 to a family violence center. 5 See id. arts. 42.013, 42A.504(b).
The district court failed to do so. Instead, the district court attempted to abate the
finding by crossing out the affirmative finding of family violence on the State’s proposed
judgment of conviction and noting that the finding was “yet to be determined.” This is contrary
to Article 42.013, which plainly provides that the district court “shall . . . enter the affirmative
finding in the judgment of the case,” id., which is the judgment of conviction here. Based on the
discussion during the hearing on punishment, the district court appears to have mistakenly
5 The district court has discretion to impose the batterer’s intervention program as a condition of probation. See Tex. Code Crim. Proc. art. 42A.504(c)(1) (providing that district court may require defendant to attend batterer’s intervention program if court grants community supervision to defendant convicted of offense involving family violence); Zapata v. State, 707 S.W.3d 440, 443-44 (Tex. Crim. App. 2025). Thus, the district court was permitted to abate that condition, and the State does not contend otherwise.
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equated family-violence findings with deadly-weapon findings, which need not be placed in
orders of deferred adjudication. See Kinkaid v. State, 184 S.W.3d 929, 930 (Tex. App.—Waco
2006, no pet.); Sampson v. State, 983 S.W.2d 842, 843 (Tex. App.—Houston [1st Dist.] 1998,
pet. ref’d). However, Fabian was convicted, not placed on deferred adjudication, see Middleton
v. State, 634 S.W.3d 46, 50 (Tex. Crim. App. 2021) (discussing differences between deferred
adjudication and conviction), and there is no legal mechanism for abating a family-violence
finding in a judgment of conviction.
Similarly, there is no authority for abating the family-violence fine. Article
42A.504 mandates that “[i]f a judge grants community supervision to a defendant convicted of
an offense under Title 5, Penal Code, that the court determines involves family violence, the
judge shall require the defendant to pay a fine of $100 to a family violence center.” Tex. Code
Crim. Proc. art. 42A.504(b). Accordingly, the district court was required to order Fabian to pay
a “family violence fine” of $100.
CONCLUSION
We conditionally grant the State’s petition for writ of mandamus. We direct the
district court to enter an affirmative finding of family violence in the judgment and to check the
box in the judgment providing for a “family violence fine” of $100. We are confident that the
district court will comply, and our writ will issue only if it does not.
Gisela D. Triana, Justice
Before Justices Triana, Crump, and Ellis
Filed: August 6, 2026
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