                                                                                 PD-1628-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 2/4/2015 4:16:01 PM
                                                                 Accepted 2/6/2015 2:43:38 PM
                                                                                  ABEL ACOSTA

                    No. PD-1628-14                                                        CLERK

___________________________________________________

       In the Court of Criminal Appeals of Texas
___________________________________________________

                     Jon Paul Stepherson
                            Appellant

                                   v.

                   State of Texas
                       Appellee
___________________________________________________

              Court of Appeals of Texas, Eleventh District
                       Case No. 11-13-00128-CR

        219th Judicial District Court of Collin County, Texas
                     Cause No. 219-81069-2012
___________________________________________________

   Appellant’s Petition for Discretionary Review
___________________________________________________


                                        Matthew J. Kita
                                        Texas Bar No. 24050883
                                        P.O. Box 5119
 February 6, 2015                       Dallas, Texas 75208
                                        (214) 699-1863 (phone)
                                        (214) 347-7221 (facsimile)
                                        matt@mattkita.com
                                        Counsel For Appellant

                       Oral Argument Requested
               Identity of Judge, Parties, and Counsel


Appellant:                 Jon Paul Stepherson

Appellate Counsel:         Matthew J. Kita
                           P.O. Box 5119
                           Dallas, Texas 75208

Trial Counsel:             Ronald W. Danforth
                           1600 Redbud Boulevard, Suite 306
                           McKinney, Texas 75069


Appellee:                  State of Texas

Appellate Counsel:         John Rolater
                           Collin County District Attorney’s Office
                           2100 Bloomdale Road, Suite 100
                           McKinney, Texas 75071

Trial Counsel:             Matthew Rolston
                           Collin County District Attorney’s Office
                           2100 Bloomdale Road, Suite 100
                           McKinney, Texas 75071


Trial Judge:               Hon. Scott J. Becker
                           219th Judicial District Court
                           Collin County, Texas




                                   -i-
                                          Table of Contents

Identity of Judge, Parties, and Counsel ..................................................................... i!

Index of Authorities ................................................................................................ iii!

Statement Regarding Oral Argument ...................................................................... iv!

Statement of the Case .............................................................................................. v!

Statement of Procedural History ............................................................................. vi!

Grounds for Review ............................................................................................... vii!

Argument ................................................................................................................. 1!

I.! ! The court of appeals applied an overly-broad definition of “family violence”
      because its application is not limited to a reasonable degree of
      consanguinity ................................................................................................. 1!

                   A.! ! Texas courts routinely limit “family” to three-degrees of
                         consanguinity. ............................................................................ 2!

Conclusion and Prayer ............................................................................................. 4!

Certificate of Compliance ........................................................................................ 5!




                                                           - ii -
                                     Index of Authorities

Cases!

Holy Trinity Church v. United States,
  143 U.S. 457 (1892) ............................................................................................. 4

Melzer v. Board of Public Instruction,
  548 F.2d. 559 (5th Cir. 1977) ............................................................................... 1



Statutes!

Tex. Code Crim. Proc. art 30.01 .............................................................................. 2

Tex. Family Code § 102.004 .................................................................................... 2

Tex. Family Code § 102.033 .................................................................................... 2

Tex. Family Code § 262.1096 .................................................................................. 2

Tex. Gov’t Code § 573.022 ...................................................................................... 1

Tex. Health & Safety Code 713.025 ........................................................................ 3

Tex. Health & Safety Code § 713.010 ...................................................................... 3



Other Authorities!

Charles Darwin, The Origin of Species (John Murray 1859) ................................... 1

Genesis 2:18–24; 3:20; 9:18–19.................................................................................. 1




                                                        - iii -
                Statement Regarding Oral Argument

      This appeal requires this Court to address the outer boundaries of the

statutory definition of “family” for purposes of determining whether

the trial court erred when it included a finding of family violence in its

judgment against Appellant Jon Paul Stepherson. Because this argument

has not been previously addressed by this Court or Texas’s intermediate courts of

appeals, and because it necessarily involves an important policy determination that

is important to the jurisprudence of this State, Appellant respectfully submits that

oral argument may assist this Court in rendering its decision.




                                          - iv -
                             Statement of the Case

Nature of the Case: Appellant Jon Paul Stepherson was indicted for assault on a
                    family or household member by impeding breathing or
                    circulation, a third-degree felony.1 Appellant waived his
                    right to a jury trial and tried his case to the court.2

Trial Court’s             Found defendant guilty of misdemeanor assault, a lesser-
Disposition:              included offense.3 The trial court sentenced Appellant to
                          one year in jail and fined him $700. The jail sentence,
                          however, was suspended for two years, pending Appellant’s
                          satisfactory completion of the terms of a two-year
                          community supervision.4 The judgment also included a
                          finding of family violence.5

Court of Appeals’         Affirmed the trial court’s finding of family violence;
Disposition:              modified the trial court’s judgment to reflect a not-guilty
                          plea.




1
    C.R. 9.
2
    C.R. 21.
3
 4 R.R. 4:9–11. The judgment incorrectly reflects that Stepherson pleaded guilty. C.R. 24. He
affirmatively pleaded not guilty on the record at the outset of trial. 3 R.R. 5:7–14.
4
    C.R. 24.
5
    C.R. 24.



                                              -v-
                    Statement of Procedural History

      The court of appeals issued its opinion and judgment on December 4, 2014.

Appellant did not file a motion for rehearing. This Court granted Appellant a

thirty-day extension to file this petition for discretionary review. It is due today,

February 4, 2015.




                                          - vi -
                          Grounds for Review

1.   Under Texas law, a trial court can issue a finding of family violence if it
     determines that the defendant and the victim “shared a common ancestor.”
     Here, the victim was Appellant’s wife’s second cousin. Given that all people
     share common ancestors, and that no Texas court would recognize
     Appellant and the victim as “related” in any other context, is the
     relationship between Appellant and the victim too remote to support a
     finding of “family” violence?




                                      - vii -
                                            Argument

I.        The court of appeals applied an overly-broad definition of “family
          violence” because its application is not limited to a reasonable degree of
          consanguinity

          Under currently-existing Texas law, two people are deemed to be related by

consanguinity if “they share a common ancestor.”6 But of course, there is

reputable authority to suggest that this definition could deem any two people on

this planet to be related by consanguinity.7 Accordingly, when this definition is

applied in various areas of Texas law, the statute or rule usually imposes a limit on

the number of degrees of consanguinity before two people are no longer deemed to

be legally related.

          The Code of Criminal Procedure, however, imposes no such limitation in the

context of family-violence findings. Because the distance between Appellant and

the victim in this case far exceeds any other recognized definition of “related”

under Texas law, this Court should grant this petition so that it may impose a

reasonable common-law limitation on the scope of “family” that comports with

constitutional due-process requirements.



6
    Tex. Gov’t Code § 573.022(a).
7
    See, e.g., Genesis 2:18–24; 3:20; 9:18–19, cf. Charles Darwin, The Origin of Species, ch. 12 (John
Murray 1859); see also Melzer v. Board of Public Instruction, 548 F.2d. 559, 577 (5th Cir. 1977).



                                                  -1-
A.        Texas courts routinely limit “family” to three-degrees of consanguinity.

          In all other codifications of Texas law, courts do not recognize two people as

being legally related to each other if there are more than three degrees of

consanguinity between them. Under the Texas Family Code, for example, this

limitation applies to a party’s ability to maintain standing to request to be a

managing conservatorship in a guardianship proceeding,8 to file suit on a minor

child’s behalf,9 and to receive information from the Department of Family and

Protective Services when it takes a child into its possession.10 The three-degree

distance is also used in the Code of Criminal Procedure and the Rules of Civil

Procedure when determining whether judges must recuse themselves from a

presiding over a proceeding for being too closely related to the parties.11 Notably,

the largest degree-separation that is recognized in Texas law is five, and applies

only to the issue of who has the right “to maintain a grave or burial lot in a

cemetery.”12 But with regard to issues related to court proceedings, three degrees

is the universally-applied standard in Texas law.


8
    Tex. Family Code § 102.004(a).
9
    Tex. Family Code § 102.033(a)(13).
10
     Tex. Family Code § 262.1096(a)(1)(A).
11
     Tex. Code Crim. Proc. art 30.01; Tex. R. Civ. P. 18b.
12
     Tex. Health & Safety Code § 713.010 & .025(2).



                                                 -2-
          Here, however, the court of appeals’ opinion affirmed a finding of “family

violence” when the victim was separated from Appellant’s wife by at six degrees of

consanguinity.13 In its analysis, it concluded that the absence of a limitation on the

number of degrees does not produce an absurd result, and tacitly suggested that the

Legislature must have intended for a broad interpretation.14 But a family-violence

finding cannot be both a special classification for enhancement, and at the same

time, universally applicable to all acts of violence. As the Supreme Court of the

United States held more than 120 years ago in Holy Trinity Church v. United States,

courts must avoid a broad interpretation of a statute if its application would extend

beyond any legislator’s reasonable intent:

          It is a familiar rule that a thing may be within the letter of the statute
          and yet not within the statute, because not within its spirit nor within
          the intention of its makers. This has been often asserted, and the
          Reports are full of cases illustrating its application. This is not the
          substitution of the will of the judge for that of the legislator; for
          frequently words of general meaning are used in a statute, words broad
          enough to include an act in question, and yet a consideration of the
          whole legislation, or of the circumstances surrounding its enactment,
          or of the absurd results which follow from giving such broad meaning
          to the words, makes it unreasonable to believe that the legislator
          intended to include the particular act.15

13
 3 R.R. 132:23 (Appellant’s wife testified that the victim was her second cousin); but see Slip
Op., p. 3, n. 3 (noting that some testimony could suggest that the distance was only five degrees).
14
     Slip Op., p. 4
15
     143 U.S. 457, 459 (1892).



                                               -3-
Because no other Texas law considers two individuals separated by six degrees of

consanguinity to be “related” for any purpose, Appellant respectfully submits that

it is unreasonable to believe that Legislature intended for the incident in question to

warrant a family-violence finding.16 This Court, therefore, should grant this

petition for discretionary review to fill the gap that the Legislature accidentally left

in the Code of Criminal Procedure.

                            Conclusion and Prayer

       Because the ancestral distance between Appellant and the victim in this case

is too remote to support a finding that they are members of the same family, and

because the court of appeals’ interpretation of the statute is fundamentally at odds

with the policy goals it purportedly seeks to advance, Appellant respectfully

requests this Court to grant this petition for discretionary review. After receiving

briefing on the merits and hearing oral argument from the parties, Appellant

further requests this Court to issue an opinion that reverses the court of appeals’

judgment on the family-violence issue, modifies the trial court’s judgment to

eliminate this finding, and grants him all other relief to which he is justly entitled.


16
  Other states have discovered this problem as well. See Practice Commentaries to N.Y. Fam.
Ct. Act § 812 (McKinney) (“Taken literally, we are all related by consanguinity, for we have
common ancestors (Adam and Eve?). That could not have been the legislative intent, but the
removal of the limitation to relationships to the third degree has resulted in a quagmire….”).



                                             -4-
                                          Respectfully submitted,

                                          s/ Matthew J. Kita
                                          Matthew J. Kita
                                          Texas Bar No. 24050883
                                          P.O. Box 5119
                                          Dallas, Texas 75208
                                          (214) 699-1863 (phone)
                                          (214) 347-7221 (facsimile)
                                          matt@mattkita.com
                                          Counsel for Appellant

                       Certificate of Compliance

       This petition complies with Texas Rule of Appellate Procedure 9.4(i)
because it contains 977 words (excluding the parts of the brief exempted by this
rule).

      Signed this 4th day of February, 2015.


                                          s/ Matthew J. Kita
                                          Matthew J. Kita




                                        -5-
                          Certificate of Service

      The undersigned certifies that a copy of this brief was served on the
following counsel via ProDoc in accordance with Texas Rule of Appellate
Procedure 9.5 and this Court’s Local Rules on February 4, 2015.

Counsel for Appellee:

      John Rolater
      Collin County District Attorney’s Office
      2100 Bloomdale Road, Suite 100
      McKinney, Texas 75071

                                          s/ Matthew J. Kita
                                          Matthew J. Kita




                                        -6-
Opinion filed December 4, 2014




                                          In The


           Eleventh Court of Appeals
                                      __________

                                 No. 11-13-00128-CR
                                     __________

                    JON PAUL STEPHERSON, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 219th District Court
                               Collin County, Texas
                       Trial Court Cause No. 219-81069-2012


                       MEMORANDUM OPINION
       The trial court, after a bench trial, convicted Jon Paul Stepherson of Class A
misdemeanor assault with an affirmative finding of family violence. 1 The trial
court assessed punishment at confinement for one year and a fine of $700, but the
court suspended the imposition of the sentence and placed Appellant on


       1
        See TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2014) (assault); TEX. CODE CRIM. PROC.
ANN. art. 42.013 (West 2006) (finding of family violence).
community supervision for two years. Appellant does not appeal his conviction of
misdemeanor assault, but he does claim that the evidence was insufficient to
support the trial court’s affirmative finding of family violence. In his sole issue on
appeal, Appellant presents two separate grounds: (1) the familial relationship
between Appellant and the victim was too remote and (2) they were not members
of the same household. We modify and affirm.
                                     I. The Charged Offense
      The grand jury indicted Appellant for the third-degree felony of assault of a
family or household member by impeding breathing or circulation. PENAL
§ 22.01(b)(2)(B).2 Assault is a lesser included offense of felony assault, and the
punishment range for a Class A misdemeanor is confinement in jail for a term not
to exceed one year or a fine not to exceed $4,000, or both. Id. § 12.21.
                                       II. Evidence at Trial
      L.S. testified that she was married to Appellant. She said that the victim, her
“biological second cousin,” is a part of her family and Appellant’s family. Y.S.
testified that she is the mother of L.S. and the mother-in-law of Appellant. Y.S.
testified that the victim is the daughter of her niece and that Y.S. has guardianship
of the victim. Y.S. subsequently said that the victim is a member of Appellant’s
family. The victim testified that Y.S. is her foster mom, but would have been her
aunt, and that Y.S. has raised the victim from the time that the victim was six
months old. The victim also said that she is a member of Appellant’s family. L.S.
and Appellant’s son referred to the victim as his “aunt.”
                                     III. Standard of Review
      We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State,
      2
       Appellant pleaded not guilty and waived his right to a jury trial.


                                                   2
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence in the
light most favorable to the jury’s verdict and determine if any rational trier of fact
could have found each element of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319. We defer to “the trier of fact to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Id.
        “Statutory construction is a question of law, and we review the record de
novo.” Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). We
construe a statute to match the “purpose of the legislators who enacted” it. Id.
(quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). We apply
the plain text of the statute first and only consult extratextual sources if the plain
text is ambiguous or would lead to an absurd result. Id. (citing Lopez v. State, 253
S.W.3d 680, 685 (Tex. Crim. App. 2008), and Boykin, 818 S.W.2d at 785).
                                             IV. Analysis
        Appellant contends that the evidence is insufficient to support his conviction
of assault with a “family violence” finding because the statute’s definition of
“family” is too broad. He concedes that his wife and the victim are related but
argues that their relation is too remote to fit the definition of family because they
are separated by six degrees of consanguinity. 3
        The legislature defines “family violence” 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
ANN. § 71.004 (West 2014) (emphasis added). “Family” is defined as “individuals
related by consanguinity or affinity.” Id. § 71.003 (emphasis added). Relation by
consanguinity means that one individual is a descendant of the other or that they
        3
         Appellant states that the victim and L.S. are separated by six degrees of consanguinity, but we
note that Y.S.’s description of how the victim is related to L.S. would separate them by only five degrees.
The number of degrees between them is irrelevant to our analysis.


                                                    3
share a common ancestor. TEX. GOV’T CODE ANN. § 573.022(a) (West 2012).
Relation by affinity means that the two individuals are married to each other or that
“the spouse of one of the individuals is related by consanguinity to the other
individual.” Id. § 573.024(a).
      We note that the legislature may place limiting language in one statute but
not another.    See, e.g., FAM. § 102.004 (“Standing for Grandparent or Other
Person”—limits standing to a person related within the third degree by
consanguinity to the child); id. § 71.004 (“Family Violence”—contains no limits
on the degrees of consanguinity); PENAL § 42.07 (“Harassment”—same). Thus, we
read and analyze statutes in context and construe them according to the rules of
grammar, common usage, and any “technical or particular meaning, whether by
legislative definition or otherwise.” GOV’T § 311.011 (West 2013).
      The meaning of family by consanguinity or affinity, as defined by the
legislature, is not ambiguous, nor does its application in this case impose an absurd
result. See Boykin, 818 S.W.2d at 785 (explaining that courts only deviate from
the plain language if following it would lead to “absurd consequences that the
Legislature could not possibly have intended”). Therefore, we apply that statutory
definition of family and decline to read or infer limiting language that the
legislature did not provide. Because the victim and L.S. were biologically related
and because L.S. and Appellant were married at the time of the assault, we hold
that sufficient evidence existed for a rational trier of fact to find that the victim and
Appellant were “family” because they were related by consanguinity and affinity.
As a result, the trial court did not err when it made an affirmative finding of family
violence. In light of our ruling, we need not address whether the victim was a
member of Appellant’s household. We overrule Appellant’s sole issue.




                                           4
                            V. Modification of Judgment
      The judgment in this case reflects that Appellant pleaded guilty to the
offense.   Appellant actually pleaded not guilty.       Therefore, we modify the
judgment to correct that inaccuracy. See TEX. R. APP. P. 43.2(b).
                              VI. This Court’s Ruling
      We modify the judgment of the trial court to reflect that Appellant entered a
plea of “NOT GUILTY” to the offense. As modified, we affirm.




                                                   MIKE WILLSON
                                                   JUSTICE


December 4, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         5
