In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00399-CR 

ANTHONY BERNARD WINGFIELD, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 46th District Court 

Wilbarger County, Texas 

Trial Court No. 11,825, Honorable Dan Mike Bird, Presiding 

 

November 24, 2015 

 

OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Appellant Anthony Bernard Wingfield appeals his conviction by jury of assault 

against a household member, with a prior conviction,1and the resulting sentence of 

forty-five years of imprisonment.2 Appellant raises two points of error. We will affirm the 

judgment of the trial court. 

 

1 See TEX. PENAL CODE ANN. § 22.01(a)(1), § 22.01(b)(2)(A) (West 2011).

2 See TEX. PENAL CODE ANN. § 12.42 (West 2013) (providing penalties for repeat 

and habitual felony offenders).
2

Background

The State’s indictment charged appellant with assault against a member of his 

household and alleged appellant previously had been convicted of a similar offense.

After appellant pled not guilty, Angela Dickerson and her brother testified.

Dickerson said she and appellant were dating and living together when, on a day in 

June 2013, appellant became angry with her and punched her in the face. Her brother 

did not see the assault but heard a “slapping” sound and looked over to see appellant 

standing over his sister, “fussing at her” and a “big old knot” forming near Dickerson’s 

eye. Photographs of the complainant were admitted, depicting the injury to her eye. To 

prove appellant’s prior conviction, the State introduced a 2012 judgment of a Dallas 

County criminal court.

The jury found appellant guilty as charged in the indictment and punishment was 

assessed as noted. Appellant filed a motion for new trial that was overruled by 

operation of law. This appeal followed. 

Analysis

Sufficiency of the Evidence

At trial in the present case, appellant moved for a directed verdict at the 

conclusion of the State’s evidence, asserting the 2012 Dallas County judgment 

constituted no evidence he previously had been convicted of an offense meeting the 

requirements of Penal Code section 22.01(b)(2)(A), necessary to elevate the degree of 

the current offense from a Class A misdemeanor to a third-degree felony. The court 
3

denied the motion, and appellant’s first complaint on appeal resumes his argument that 

the evidence of his prior conviction of an offense satisfying section 22.01(b)(2)(A) is 

insufficient. 

When reviewing sufficiency of the evidence, we view all of the evidence in the 

light most favorable to the verdict and determine, based on that evidence and any 

reasonable inferences therefrom, whether any rational fact finder could have found the 

elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 

746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 

2781, 61 L. Ed. 2d 560 (1979)); see Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. 

App. 2010). Our duty as a reviewing court is to ensure the evidence presented actually 

supports a conclusion that the defendant committed the crime. Williams v. State, 235 

S.W.3d 742, 750 (Tex. Crim. App. 2007).

A person commits assault if he “intentionally, knowingly, or recklessly causes 

bodily injury to another . . . .” TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). The 

offense is generally a Class A misdemeanor but is elevated to a third-degree felony if 

(1) the offense is committed against a member of the defendant’s household and (2) “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, Family Code.” TEX. PENAL CODE ANN. § 

22.01(b)(2)(A); TEX. FAM. CODE ANN. § 71.0021(b) (West 2011). The prior conviction is 

an essential element of the felony offense. Reyes v. State, 314 S.W.3d 74, 81 (Tex. 

App.—San Antonio 2010, no pet.).
4

In trial of an offense under Title 5 of the Penal Code, article 42.013 of the Code 

of Criminal Procedure requires the court to make an affirmative finding that the “offense 

involved family violence, as defined by Section 71.004, Family Code,” if the court 

determines that to be the case. TEX. CODE CRIM. PROC. ANN. art. 42.013 (2005); Butler 

v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) (trial court is “statutorily 

obligated” to enter affirmative finding of family violence in its judgment, if during guilt 

phase of trial it determines offense involved family violence).

3

Family Code section 

71.004, as pertinent here, defines “family violence” to include “an act by a member of 

a . . . household against another member of the . . . household that is intended to result 

in physical harm, bodily injury, assault, or sexual assault or that is 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 ANN. § 71.004 (West 2015).

In State v. Eakins, the Austin court of appeals noted article 42.013 “was 

obviously intended to simplify the prosecution of subsequent family assault cases by 

making it unnecessary to relitigate the details of the previous assault.” State v. Eakins,

71 S.W.3d 443, 444 (Tex. App.—Austin 2002, no pet.). But the court went on to hold 

that in the subsequent prosecution, an affirmative finding of family violence in a prior 

 

3 Article 42.013 provides, “[i]n 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 the affirmative finding in the judgment of the 

case.” TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2005). 
5

judgment is not the only way the State may prove the defendant has previously been 

convicted of an offense meeting the requirements of § 22.01(b)(2)(A). Id.

4

 

The 2012 judgment on which the State relied in this case does not contain an

affirmative family violence finding. Instead, it contains a negative family violence finding. 

The judgment, entered in cause number MA1233579N in County Criminal Court 11 of 

Dallas County, and dated March 20, 2012, for an offense committed November 11, 

2011, reflects appellant’s conviction for misdemeanor “assault FV,” and his placement 

on community supervision. The judgment form contains a line reading, “Affirmative 

finding of family violence, if applicable: Yes / No.” The word “No” is circled.5 

Appellant contends the negative family violence finding has the effect of 

disqualifying the 2012 assault conviction for use under section 22.01(b)(2)(A).6 We 

disagree.

 

4 Accord, 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, 348 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). 

Extrinsic evidence relating to the prior conviction may include the testimony of the victim 

of the prior offense. See, e.g., Mitchell, 102 S.W.3d at 775; Goodwin, 91 S.W.3d at 920. 

5

The State’s evidence in this case also included a judgment of the same Dallas 

County court, also dated March 20, 2012, in cause number MA1233578N, showing

appellant’s conviction of the misdemeanor offense of interference with emergency 

request for assistance. TEX. PENAL CODE ANN. § 42.062 (West 2013). The judgment 

states that offense, like the family violence assault in number MA1233579N, was 

committed November 11, 2011. This judgment contains an affirmative family violence 

finding, with the word “Yes” circled. 

6 Arguing the evidence was sufficient to establish the 2011 assault constituted a 

family violence offense despite the absence of an affirmative family violence finding, the 

State relies in part on the description of the offense in the 2012 judgment, which states 
6

Addressing appellant’s contention, we focus on the literal text of the statutory 

provision, presuming the Legislature meant what it said. Anzaldua v. State, No. 07-11-

00253-CR, 2012 Tex. App. LEXIS 3876, at *8-9 (Tex. App.—Amarillo May 16, 2012, 

pet. ref’d) (mem. op., not designated for publication) (construing Penal Code section 

22.01(b)(2), citing Spence v. State, 325 S.W.3d 646, 650 (Tex. Crim. App. 2010) and 

Hardy v. State, 281 S.W.3d 414, 422 (Tex. Crim. App. 2009)). 

In that regard, we first note that section 22.01(b)(2)(A) does not say it applies to 

prior convictions for which affirmative findings of family violence under article 42.013 

were made.7 Instead, by the plain language of section 22.01(b)(2)(A), it may be 

satisfied by proof of the defendant’s prior conviction of an offense listed in that section, 

committed against a person whose relationship or association with the defendant is 

described by Family Code section 71.0021(b), 71.003 or 71.005. Section 22.01(b)(2)(A) 

____________________

the “offense convicted of” as “assault FV as charged in the information.” We considered 

the effect of such judgment language in Cade v. State, No. 07-02-0409-CR, 2003 Tex. 

App. LEXIS 4862 (Tex. App.—Amarillo June 10, 2003, no pet.) (mem. op., not 

designated for publication). We there concluded that article 42.013 requires a “separate 

and specific affirmative finding entered in addition to the recitation of the offense” and 

that the affirmative finding requirement is not met merely by the judgment’s statement of 

the offense “followed by the phrase ‘domestic violence.’” Id. at *5 (citing Eakins, 71 

S.W.3d at 444 n.1); accord, Othman v. State, No. 14-09-00444-CR, 2010 Tex. App. 

LEXIS 5746, *4-*5 (Tex. App.—Houston [14th Dist.] July 22, 2010, no pet.) (mem op., 

not designated for publication). Consistent with our holding in Cade, we find the 

“assault FV” offense description in the judgment is not the equivalent of the affirmative 

finding required by article 42.013.

7

Interestingly, the Legislature used just such language in a statute adopted this 

last session. See TEXAS FAMILY CODE ANN. § 81.0015 (West Supp. 2015) (regarding 

entitlement to a protective order, providing presumption that family violence has 

occurred and is likely to occur in the future if, among other requirements, the

respondent has been convicted of a specified offense “for which the court has made an 

affirmative finding that the offense involved family violence under Article 42.013, Code 

of Criminal Procedure”) (added by Acts 2015, 84th Leg., ch. 1241 (H.B.1782), § 1, eff. 

Sept. 1, 2015). 
7

does not mention article 42.013, Family Code section 71.004, or the phrase “family 

violence.” 

Here, it is undisputed that the “assault FV” offense of which appellant was 

convicted in 2012 was an offense under Penal Code chapter 22. It is undisputed 

Dickerson was a member of appellant’s household, as defined in Family Code section 

71.0021(b), at the time of that assault.8 Section 22.01(b)(2)(A) requires no more.9

 

8 As noted, Dickerson testified at trial of appellant’s current offense. She testified 

she also was the victim of appellant’s November 2011 Dallas County offenses, that he 

was the person who assaulted her on that occasion, and that she was living with

appellant at that time. 

9 The court in Eakins, 71 S.W.3d at 445, noted that its holding permitting the 

admission of extrinsic evidence to prove that an earlier conviction met the requirements 

of section 22.01(b)(2) was not a collateral attack on the earlier judgment because the 

State was not seeking to attack the validity of the earlier judgment or seeking to offer 

proof contrary to a recital contained in the judgment.

The Dallas County trial court’s “no” finding on family violence is not incompatible 

with appellant’s guilt of the offense as charged in the information. It alleged he 

“intentionally and knowingly and recklessly” caused bodily injury to Dickerson by striking 

her head with his hand and head, that he had a dating relationship with her, and was a 

member of her family and household. The Dallas County court could have made an 

affirmative family violence finding if it concluded appellant had committed an act that 

was intended to result in physical harm, bodily injury, assault or sexual assault, or was a 

threat of such, but was not a defensive measure. See TEX. FAM. CODE ANN. § 71.004. 

Such a conclusion was not necessary to appellant’s guilt of the offense as charged in 

the information, however, because his guilt could be supported by the conduct of 

causing Dickerson bodily injury with a knowing or reckless culpable mental state. See 

Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (the gravamen of assault 

with bodily injury is injury, a result of conduct). 

We note, however, that the record before us also includes the terms and 

conditions of community supervision imposed after appellant’s 2012 conviction. Those 

terms and conditions included the requirements that appellant participate in a Batterers 

Intervention Prevention Program, pay a fee to a family violence shelter, and have no 

contact with Dickerson. These terms are applicable only in cases involving family 

violence. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 11(h), 14(c) (West 2015). We 

find the disposition of this case to be directed by the literal language of section 

22.01(b)(2)(A), not by a determination whether that disposition might, or might not, be 
8

Finding the evidence sufficient to show appellant’s prior conviction of an offense 

meeting the requirements of section 22.01(b)(2)(A),10 we overrule appellant’s first issue.

Withdrawal of Plea Offer

By appellant’s second point of error, he argues the State engaged in “vindictive 

prosecution” by withdrawing a plea bargain offer of two years imprisonment. The 

prosecutor stated in open court that “we’ll make that offer available until October the 

10th.” It withdrew the offer before that date.

On the morning of trial, the court heard appellant’s motion to quash the 

indictment because of the State’s vindictive prosecution. During that hearing, the State 

told the court it extended the two-year plea offer to appellant after Dickerson filed an 

affidavit of non-prosecution. It further told the court the district attorney’s investigator 

then spoke with Dickerson and determined that she did not want to testify, but would do 

so and do so truthfully. After that conversation, the State decided to withdraw the twoyear plea offer. The State sent counsel a letter withdrawing the offer of two years, also 

noting appellant’s significant criminal history, and making a new offer of fifteen years of 

imprisonment in exchange for appellant’s plea of guilty. The clerk’s record indicates the 

____________________

said to constitute a collateral attack on the Dallas County court’s “no” family violence 

finding. 

10 See Crawford v. State, No. 12-05-00293-CR, 2006 Tex. App. LEXIS 6520, at 

*9-10 (Tex. App.—Tyler July 26, 2006, no pet.) (mem. op., not designated for 

publication). See also Vaughn v. State, No. 06-06-00040-CR, 2007 Tex. App. LEXIS 

3608 (Tex. App.—Texarkana May 11, 2007, no pet.) (mem. op., not designated for 

publication) (discussing sufficiency of evidence to prove enhanced assault with bodily 

injury).
9

State’s letter was sent on October 1. On that same day, appellant sent a letter to his 

counsel accepting the State’s offer of two years of imprisonment. Counsel received both 

the State’s letter and appellant’s letter on October 4. On October 7, counsel for 

appellant sent a letter to the prosecutor indicating appellant’s acceptance of the plea 

bargain offer of two years. 

After hearing additional argument from the parties, the trial court concluded that 

the plea process had not “gone far enough for me to impose anything on one side or the 

other” and denied appellant’s motion. Appellant contends the trial court erred in 

denying his motion.

At its core, a plea bargain is a contract between the State and the defendant. 

See Ex parte Moussazadeh, 64 S.W.3d 404, 411 (Tex. Crim. App. 2001); Ortiz v. State,

933 S.W.2d 102, 104 (Tex. Crim. App.1996); Ex parte Williams, 637 S.W.2d 943, 948 

(Tex. Crim. App. 1982). Because a plea-bargain agreement is solely between the State 

and the defendant, only those parties may alter the terms of the agreement. Id. As a 

contract, once both parties have entered knowingly and voluntarily into a plea bargain, 

they are bound by the terms of that agreement once it is accepted by the court. Id.

Appellant’s argument seems to treat the State’s commitment to hold the two-year 

offer open until October 10 as though it were itself part of a plea agreement. To be 

binding, however, a plea agreement must be accepted by the court. Ex parte De Leon, 

400 S.W.3d 83, 89 (Tex. Crim. App. 2013). Although the commitment was stated in 

open court, no one contends it was accepted by the court. The commitment to hold the 

plea offer open until October 10 cannot be seen as a binding plea agreement. See
10

Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009) (a plea agreement is a 

contract between the parties and is binding on the parties only after the trial court 

accepts it). 

We also see no error in the trial court’s implicit rejection of appellant’s contention 

that the withdrawal of the offer before the deadline demonstrated prosecutorial 

vindictiveness. The decision whether prosecutorial vindictiveness exists must be 

decided on a case by case basis, based on each individual record. Lopez v. State, 928 

S.W.2d 528, 533 (Tex. Crim. App. 1996). Prosecutors have broad discretion in deciding 

which cases to prosecute. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). 

A defendant establishes a claim for actual vindictiveness in prosecution by 

offering direct evidence that the prosecutor's charging decision is an unjustifiable 

penalty resulting solely from the defendant's exercise of a protected legal right. Neal,

150 S.W.3d at 173. Under the explanation the State gave for withdrawing its plea offer, 

its decision, made in a pretrial setting, was based on the re-commitment of the 

complainant to testify truthfully. If the trial court accepted the State’s explanation for its 

decision to withdraw the plea offer, as it was free to do, no vindictiveness was shown.11 

The trial court did not err by denying appellant’s motion to quash the indictment for 

vindictive prosecution. We resolve appellant’s second issue against him.

 

11 See also Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 

2d 604 (1978) (addressing due process violation with regard to plea bargain).
11

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial 

court.

James T. Campbell

 Justice

Publish.