CROSSOVER: Dallas Court Strikes Family-Violence Fine Because Judgment Lacked Required Affirmative Deadly-Weapon Finding | Richard v. State (2026)

Keith Richard Nemcek v. The State of Texas, 05-24-01336-CR, June 29, 2026.

On appeal from 422nd Judicial District Court, Kaufman County, Texas

Synopsis

The Dallas Court of Appeals held that a family-violence fine under article 42.504 of the Texas Code of Criminal Procedure cannot remain in the judgment unless the judgment itself contains an affirmative deadly-weapon finding. A deadly-weapon element embedded in the offense of conviction—even aggravated sexual assault with a deadly weapon—is not enough by itself if the trial court failed to include the separate affirmative finding in the written judgment; the proper appellate remedy is to modify the judgment and delete the fine.

Relevance to Family Law

For Texas family-law litigators, this is a useful reminder that the operative force of a criminal case often depends not just on what happened factually or what the indictment alleged, but on what the judgment actually says. In divorce, SAPCR, and protective-order litigation, lawyers routinely leverage criminal records to establish family violence, coercive control, best-interest concerns, reimbursement theories, waste claims, and disproportionality in property division. Nemcek underscores a recurring evidentiary and strategic point: when you want to use a criminal disposition in family court, you must distinguish between the underlying conduct, the statutory elements, and the express findings memorialized in the judgment. That distinction can affect arguments about family violence history, firearm restrictions, supervised possession, credibility, and whether the opposing side is overstating what the criminal court formally found.

Case Summary

Fact Summary

The appeal arose from a conviction for aggravated sexual assault with a deadly weapon. The complainant testified to a prolonged course of coercive, degrading, and violent abuse within an intimate relationship. Her account included verbal domination, physical assaults, strangulation, threats to kill her, and a sexual assault involving an aluminum baseball bat. According to the State’s evidence, the defendant forced or attempted to force the complainant to insert the bat vaginally and anally, used the bat to threaten and assault her, and later continued the abuse through choking, dragging, punches, threats of mutilation, and death threats.

The evidence also included corroboration from a neighbor, a responding officer, and a sexual-assault nurse examiner. The complainant’s post-assault behavior, visible injuries, fear responses, and medical findings supported the State’s version of events. On appeal, however, the issue highlighted here was not the sufficiency of the evidence supporting the conviction itself. Instead, it concerned a monetary component of the judgment: a family-violence fine imposed under article 42.504.

The critical procedural fact was that although the conviction was for aggravated sexual assault with a deadly weapon, the written judgment did not contain a separate affirmative deadly-weapon finding. That omission became dispositive as to the fine.

Issues Decided

• Whether article 42.504 permits a family-violence fine when the defendant is convicted of aggravated sexual assault with a deadly weapon but the written judgment lacks an affirmative deadly-weapon finding.
• Whether the existence of a deadly-weapon element in the offense of conviction can substitute for a separate affirmative deadly-weapon finding in the judgment.
• Whether the appropriate appellate remedy is reversal or simple modification of the judgment to delete the unauthorized fine.

Rules Applied

Article 42.504 of the Texas Code of Criminal Procedure authorizes a family-violence fine in specified circumstances, including when the judgment contains the findings the statute requires. The Dallas Court’s analysis, as framed by the result, turned on the requirement that the judgment include an affirmative deadly-weapon finding rather than merely reflect a conviction for an offense whose elements included use of a deadly weapon.

The governing rule is narrow but important: a criminal judgment must contain the required affirmative finding if the State seeks to preserve consequences tied to that finding. Texas appellate courts routinely treat unauthorized financial terms in judgments as correctable by modification when the record permits the appellate court to identify the error and render the judgment the trial court should have rendered.

For family lawyers, the larger doctrinal point tracks a familiar principle across practice areas: formal findings matter. Courts and agencies often attach legal consequences not to the broader factual narrative, but to the existence or absence of a specific adjudicative finding in the operative order or judgment.

Application

The court treated the family-violence fine as dependent on a formal prerequisite that was missing from the judgment. That the prosecution proved aggravated sexual assault with a deadly weapon did not carry the State all the way to sustaining the fine. In other words, the appellate court declined to conflate the elements of the offense with the separate written affirmative finding required to support this additional monetary sanction.

That is a significant analytical move. Texas practitioners know that criminal judgments can produce collateral consequences well beyond confinement and community supervision. But those consequences are often triggered by precise drafting choices. Here, the appellate court looked to the judgment itself and found that the necessary affirmative deadly-weapon finding was absent. Because the statutory predicate for the family-violence fine was missing from the face of the judgment, the fine could not stand.

The court also chose a limited remedy. It did not disturb the conviction for aggravated sexual assault. Instead, it modified the judgment to remove the fine and otherwise affirmed. That remedy reflects a common appellate practice in Texas criminal cases: when the defect is in the form or contents of the judgment rather than in the validity of the conviction, modification is the proper tool.

Holding

The Dallas Court of Appeals held that a family-violence fine under article 42.504 requires an affirmative deadly-weapon finding in the judgment. A conviction for aggravated sexual assault with a deadly weapon, standing alone, does not authorize the fine if the judgment omits that separate finding.

The court further held that the proper disposition was to affirm the conviction as modified and delete the fine from the judgment. The omission did not undermine the conviction itself; it only rendered the fine unauthorized on the face of the judgment.

Practical Application

For family-law practitioners, Nemcek is less about criminal sentencing mechanics and more about disciplined use of criminal records in civil litigation. In a divorce case involving family violence, one side may try to frame a criminal case as establishing every aggravating fact embedded in the narrative. Nemcek is a reminder to parse the record carefully. There is a difference between allegations, testimony, indictment language, a verdict, and findings actually incorporated into the judgment. If your opposing party overstates what the criminal court “found,” this case supports a more exacting approach.

The case is especially useful in custody disputes where one parent relies on a criminal judgment to support restrictions on possession, supervised access, or decision-making limitations. The underlying conduct may still be highly relevant and independently provable, but counsel should not assume every consequence follows automatically from the offense title alone. If a particular statutory or collateral consequence depends on an express deadly-weapon finding, family lawyers should verify whether the judgment actually contains it.

The same is true in property litigation. Where one spouse seeks a disproportionate division based on family violence or financial consequences flowing from criminal conduct, the criminal judgment may be powerful evidence—but only for the propositions it actually establishes. Precision matters when arguing reimbursement, waste, fault in the breakup, or need for protective provisions in the decree.

On the offensive side, family lawyers can use Nemcek to challenge inflated characterizations of the criminal case. On the defensive side, if your client is the victim of abuse, Nemcek is a drafting lesson: obtain the full criminal file, not just the judgment, and be prepared to prove the abusive conduct through testimony, medical records, photographs, police records, protective-order evidence, and witness testimony, rather than assuming the judgment alone carries every necessary detail.

Checklists

Audit the Criminal Judgment Before You Use It

• Obtain the signed judgment, not merely the indictment, docket sheet, press release, or appellate summary.
• Confirm whether the judgment contains an express affirmative deadly-weapon finding.
• Distinguish between the title of the offense and specific written findings in the judgment.
• Check whether fines, costs, special conditions, or family-violence designations are expressly authorized by the judgment’s contents.
• Compare the judgment against the verdict, plea papers, and any nunc pro tunc orders.

Build the Family-Violence Record Independently

• Plead family violence with factual specificity in the SAPCR, divorce, or protective-order proceeding.
• Gather medical records, SANE records, photographs, police reports, 911 records, and witness statements.
• Secure certified copies of the criminal judgment and related filings.
• Develop testimony about coercive control, threats, strangulation, and post-incident fear behavior.
• Do not rely exclusively on the offense label to prove the scope of abuse.

Challenge Overstated Use of Criminal Records

• Object when opposing counsel attributes findings to the criminal court that do not appear in the judgment.
• Separate admissibility arguments from weight arguments.
• Emphasize the difference between allegations, evidentiary testimony, and formal adjudicative findings.
• Use the absence of an express finding to narrow collateral-consequence arguments where appropriate.
• Preserve error if the trial court adopts an inaccurate characterization of the criminal case.

Draft Better Family-Court Orders

• If relief depends on a criminal finding, describe the conduct and the supporting evidence in the family-court record.
• Avoid vague references to “criminal family violence” when a more precise recital is needed.
• Include detailed findings supporting best interest, endangerment, supervised possession, and injunctions.
• Tie requested restrictions to the evidence actually admitted in the family case.
• Anticipate appellate scrutiny by ensuring the decree or order states the findings needed to support the relief granted.

Protect the Appellate Record

• Offer certified copies of criminal judgments and associated records into evidence.
• Request findings of fact and conclusions of law when they will clarify the basis for relief.
• Correct misstatements in open court about what the criminal judgment does or does not contain.
• Preserve complaints about reliance on unsupported collateral consequences.
• Consider whether a limited modification argument, rather than wholesale reversal, is the cleaner appellate remedy.

Citation

Keith Richard Nemcek v. The State of Texas, No. 05-24-01336-CR, 2026 WL ___ (Tex. App.—Dallas June 29, 2026, no pet.) (mem. op.) (affirmed as modified).

Full Opinion

Read the full opinion here

Family Law Crossover

This opinion can be weaponized in family court in two different ways, depending on which side you represent. If you represent the accused spouse or parent, Nemcek gives you a clean doctrinal basis to challenge any attempt to overread the criminal judgment. You can argue that Texas courts must respect the difference between proved conduct and formal written findings, and that collateral consequences should not be imported into the family case by implication. That is particularly useful where the other side tries to use the criminal case as a shortcut to heightened restrictions, adverse credibility determinations, or broad property penalties untethered to the actual judgment.

If you represent the victimized spouse or parent, the case is still useful—just in a different way. It teaches that you should not make the family case depend on the four corners of the criminal judgment. Instead, build a redundant evidentiary record showing family violence, coercive control, sexual abuse, strangulation, and threats, then obtain explicit family-court findings supporting conservatorship restrictions, exclusive use provisions, injunctive relief, and disproportionality in division. In that sense, Nemcek is a drafting and proof case: if you need a finding to carry legal consequences, make sure the order actually says it.

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