CROSSOVER: Defending the ‘Deadly Weapon’ Label: Attacking Notice and Evidence Deficiencies in Domestic Assault Adjudications
Attaway v. State, 12-25-00007-CR, February 18, 2026.
On appeal from the 114th Judicial District Court of Smith County, Texas.
Synopsis
The Twelfth Court of Appeals modified a trial court’s judgment to delete an affirmative deadly weapon finding because the State failed to provide notice via the indictment and neglected to ensure the record contained evidence—specifically the Presentence Investigation report—supporting the finding. This decision underscores that a trial court’s “knowledge” of the underlying facts is insufficient to support an enhancement if those facts are not formally entered into the record during the adjudication process.
Relevance to Family Law
For the family law practitioner, a “deadly weapon” finding is often the “nuclear option” used by opposing counsel to trigger the restrictive presumptions of Texas Family Code § 153.004. Such a finding can result in a virtual shutdown of a parent’s access to children and a near-insurmountable barrier to joint managing conservatorship. Attaway provides a strategic roadmap for defense-side litigators to challenge the validity of these findings when they arise from “crossover” criminal adjudications, particularly when the State or an opposing party relies on a deferred adjudication history that was never properly documented with a weapon allegation.
Case Summary
Fact Summary
Gerald Lynn Attaway was initially indicted for burglary of a habitation, which was later amended to the lesser-included offense of aggravated assault. Notably, the amended indictment omitted any mention of a deadly weapon. Attaway entered a “guilty” plea and received seven years of deferred adjudication community supervision. While the order of deferred adjudication listed the offense as “aggravated assault with a deadly weapon,” the trial court technically “deferred” the actual finding.
Years later, the State moved to adjudicate guilt based on a technical violation (failing a drug test). At the adjudication hearing, the underlying facts of the original assault were not discussed. The State argued that the trial court was aware of the facts—specifically that Attaway had pointed a firearm at his ex-girlfriend—through the Presentence Investigation (PSI) report. However, when the case reached the appellate level, the PSI was missing from the record, and the plea papers signed by Attaway referred only to “aggravated assault.” Despite this, the trial court entered a “true” finding on the deadly weapon allegation and sentenced Attaway to twenty years’ imprisonment.
Issues Decided
The primary issue was whether the evidence was legally sufficient to support an affirmative deadly weapon finding in the judgment adjudicating guilt when the indictment lacked a deadly weapon allegation and the appellate record contained no evidence of the use or exhibition of such a weapon.
Rules Applied
The court looked to Texas Penal Code § 22.02(a), which defines aggravated assault either by the result (serious bodily injury) or the means (use/exhibition of a deadly weapon). Applying Sampson v. State, the court noted that while deadly weapon findings are vital for calculating parole eligibility, they are procedurally improper in deferred adjudication orders because parole does not apply to community supervision.
Under Kinkaid v. State, a trial court maintains the authority to make a deadly weapon finding for the first time during the adjudication of guilt, provided there is a factual basis. Most importantly, the court cited Tellez v. State for the proposition that a lack of notice in the indictment regarding the State’s intent to seek a deadly weapon finding can render such a finding void, particularly when the plea bargain did not include the enhancement.
Application
The court’s analysis focused on the total absence of a factual record. The State conceded that the facts of the underlying offense were not discussed at the adjudication hearing. To salvage the finding, the State pointed to the PSI; however, the State failed to ensure the PSI was included in the record for the appellate court’s review.
The legal story here is one of procedural failure. Because the indictment did not allege a deadly weapon, Attaway lacked formal notice. Because the plea papers were silent on the weapon, there was no “judicial confession” to bridge the gap. Without testimony at the hearing or a PSI in the record, the Twelfth Court of Appeals was left with a judgment that made an affirmative finding of fact based on zero evidence. The court refused to assume the trial court’s extra-judicial knowledge of the case was sufficient to sustain the enhancement.
Holding
The Court of Appeals held that the evidence was insufficient to support the deadly weapon finding. The court emphasized that an affirmative finding must be supported by the record, and where the indictment is silent and the evidence is absent, the finding cannot stand.
As a result, the court sustained Attaway’s issue, modified the judgment to delete the affirmative deadly weapon finding, and affirmed the conviction as modified.
Practical Application
In high-conflict custody litigation, you must look behind the face of a criminal judgment. If a client’s (or an opponent’s) judgment of conviction contains a deadly weapon finding that originated from a deferred adjudication revocation, perform a “notice and record” audit. If the original indictment lacked the allegation and the adjudication hearing was focused solely on technical violations (like drug testing), the finding may be vulnerable to a collateral or direct attack. In the family court, you can use this precedent to argue that the “deadly weapon” label should be given no weight if it was entered without due process or evidentiary support.
Checklists
Auditing a Criminal Judgment for Crossover Use
- Notice Check: Review the original and any amended indictments. Was the “deadly weapon” notice specifically pleaded?
- Plea Paper Review: Examine the “Judicial Confession” and “Stipulation of Evidence.” Did the client specifically admit to using a weapon, or did they only admit to the base offense?
- Adjudication Record: Obtain the transcript of the revocation/adjudication hearing. Was any evidence regarding the original offense introduced, or did the court rely solely on the new violations?
- PSI Verification: Determine if a Presentence Investigation report was actually admitted into evidence or merely “considered” by the court.
Defending Against § 153.004 Presumptions
- Move to Strike: If the criminal court’s deadly weapon finding was deleted (as in Attaway), move to strike any mention of it from the family law record.
- Distinguish “Aggravated” from “Deadly”: Note that an aggravated assault conviction does not automatically equal a deadly weapon finding unless the “means” of the assault was the weapon (rather than the “result” being serious bodily injury).
- Object to Extra-Record Knowledge: Prevent the family court from relying on the criminal judge’s “general knowledge” of the case; insist that the rules of evidence apply to the underlying facts of the assault.
Citation
Attaway v. State, No. 12-25-00007-CR (Tex. App.—Tyler Feb. 18, 2026, no pet. h.).
Full Opinion
Family Law Crossover
This ruling is a powerful tool for rehabilitating a parent’s standing in a Suit Affecting the Parent-Child Relationship (SAPCR). In Texas, a “Deadly Weapon” finding is a statutory trigger for the “Family Violence” presumption in custody cases. However, Attaway proves that these findings are often entered by trial courts as a matter of course during adjudications without meeting the requisite evidentiary standards.
If you are representing a parent whose access is being restricted due to an “Aggravated Assault with a Deadly Weapon” conviction, and that conviction resulted from a deferred adjudication revocation, you must determine if the weapon finding was properly supported. If the criminal record mirrors Attaway—where the finding was “tacked on” at the end without notice or a PSI—you can argue in the family court that the finding lacks the “probative force” necessary to sustain a § 153.004 restriction. Effectively, you are weaponizing the State’s procedural sloppiness to protect your client’s parental rights.
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