
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00617-CR



Ygnacio Romero, Appellant

v.


The State of Texas




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 002505, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING





	Ygnacio Romero appeals his conviction for felony assault-family violence.  See Tex.
Pen. Code Ann. § 22.01(b)(2) (West 1994 & Supp. 2001).  Romero was tried before a jury and
sentenced to confinement in a state jail facility for two years and assessed a fine of $10,000.  In this
appeal, he alleges that the trial court erred by submitting to the jury an improper definition of
"family."  We conclude that Romero did not preserve the alleged error and that the trial court's
definition of "family" was not erroneous, and therefore affirm the judgment of conviction.

FACTS AND PROCEDURAL BACKGROUND
	On the evening of August 14, 1999, a police officer pulled over a car driven by
Romero after neighbors complained that he was repeatedly driving up and down the street and that
a passenger in the car appeared to have been assaulted.  A second officer arrived at the scene and
observed that the passenger, Maria Gonzales, had swollen and bruised eyes, a fresh cut on the right
side of her face, and bruises on the insides of her arms.  Gonzales informed the officers that she was
Romero's common-law wife, and that it was not Romero who assaulted her, but a former boyfriend. 
Based on inconsistencies in Romero's and Gonzales's stories and the victim's behavior at the scene,
the arresting officers believed that Romero committed the assault and arrested him.  Later, Gonzales
recanted her story and told law enforcement officials that it was Romero who had assaulted her. 
Gonzales testified at trial that Romero had threatened to kill her if she did not blame the former
boyfriend for the assault.
	Romero's two prior convictions for assault against Gonzales enhanced the August
14 assault charge to felony assault-family violence.  See id.  The trial record reflects no objections
to the jury charge by Romero.

DISCUSSION	Romero contends that the trial court committed fundamental error in submitting the
following definition of "family" to the jury: "'Family' includes a spouse or individuals who are
former spouses of each other, whether or not those individuals reside together."  Article 36.19 of the
Code of Criminal Procedure contains the standards for both fundamental error and ordinary
reversible error.  Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981).  If the error in the charge was
the subject of a timely objection in the trial court, then reversal is required if the error is "calculated
to injure the rights of defendant," which means no more than some harm must result from the error. 
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  In other words, an error which has
been properly preserved by objection will call for reversal as long as the error is not harmless.  Id. 
On the other hand, if no proper objection was made at the trial, the defendant must claim that the
error was "fundamental," and the judgment will be reversed only if the error is so egregious and
created such harm that the defendant "has not had a fair and impartial trial."  Id.  In both situations
the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of the probative evidence, the argument of counsel, and
any other relevant information revealed by the record of the trial as a whole.  Id.
	Because Romero did not object to the definition of "family" in the jury charge during
the trial, the issue was not preserved.  Even if we were to conclude that the jury charge was
erroneous, we may not reverse unless the error caused egregious harm.  See id. at 171.  The court of
criminal appeals has determined that neither harm standard set out in article 36.19 of the Code of
Criminal Procedure, as construed by Almanza, applies unless an appellate court first finds error in
the jury charge.  Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998) (referencing Almanza,
686 S.W.2d at 174).  Thus, the issue before us is whether the definition of "family" submitted in the
jury charge was erroneous.
	The Penal Code directs us to section 71.003 of the Family Code for the controlling
definition of "family."  Tex. Pen. Code Ann. § 22.01(e)(1) (West Supp. 2001).  

"Family" includes individuals related by consanguinity or affinity, as determined
under Sections 573.022 and 573.024, Government Code, individuals who are former
spouses of each other, individuals who are the biological parents of the same child,
without regard to marriage, and a foster child and foster parent, without regard to
whether those individuals reside together. 


Tex. Fam. Code Ann. § 71.003 (West Supp. 2001).  There was no evidence in this case to indicate
that Romero and Gonzales were biological parents of the same child, foster child and foster parent,
or related by blood, so the portions of the Penal Code definition addressing those possibilities were
omitted from the jury charge.  The substitution of "spouse" for "individuals related by affinity" is
not significant under Government Code section 573.024(a)(1), because that section states that "[t]wo
individuals are related to each other by affinity if . . . they are married to each other."  Tex. Gov't
Code Ann. § 573.024(a)(1) (West Supp. 2001).  Thus, the definition of "family" submitted to the
jury was narrower than the definition required by the Penal Code, and not broader, as Romero
argues, because all portions of the definition not relevant to the facts in this case were omitted.  The
definition submitted to the jury by the trial court is not meaningfully different from the definition in
the Penal Code, but is tailored to address only the evidence presented in this case.  The submission
of this definition to the jury does not constitute error, so we need not address the issue of whether
or not there has been egregious harm to the defendant.

CONCLUSION
	We hold that Romero failed to preserve the issue of the definition of "family"
submitted in the jury charge, and that the definition submitted was not erroneous.  Accordingly, we
overrule Romero's point of error and affirm the trial court's judgment of conviction.


  
					Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Puryear
Affirmed
Filed:   June 7, 2001
Do Not Publish

arm must result from the error. 
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  In other words, an error which has
been properly preserved by objection will call for reversal as long as the error is not harmless.  Id. 
On the other hand, if no proper objection was made at the trial, the defendant must claim that the
error was "fundamental," and the judgment will be reversed only if the error is so egregious and
created such harm that the defendant "has not had a fair and impartial trial."  Id.  In both situations
the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of the probative evidence, the argument of counsel, and
any other relevant information revealed by the record of the trial as a whole.  Id.
	Because Romero did not object to the definition of "family" in the jury charge during
the trial, the issue was not preserved.  Even if we were to conclude that the jury charge was
erroneous, we may not reverse unless the error caused egregious harm.  See id. at 171.  The court of
criminal appeals has determined that neither harm standard set out in article 36.19 of the Code of
Criminal Procedure, as construed by Almanza, applies unless an appellate court first finds error in
the jury charge.  Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998) (referencing Almanza,
686 S.W.2d at 174).  Thus, the issue before us is whether the definition of "family" submitted in the
jury charge was erroneous.
	The Penal Code directs us to section 71.003 of the Family Code for the controlling
definition of "family."  Tex. Pen. Code Ann. § 22.01(e)(1) (West Supp. 2001).  

"Family" includes individuals related by consanguinity or affinity, as determined
under Sections 573.022 and 573.024, Government Code, individuals who are former
spouses of each other, individuals who are the biological parents of the same child,
without regard to marriage, and a foster child and foster parent, without regard to
whether those individuals reside together. 


Tex. Fam. Code Ann. § 71.003 (West Supp. 2001).  There was no evidence in this case to indicate
that Romero and Gonzales were biological parents of the same child, foster child and foster parent,
or related by blood, so the portions of the Penal Code definition addressing those possibilities were
omitted from the jury charge.  The substitution of "spouse" for "individuals related by affinity" is
not significant under Government Code section 573.024(a)(1), because that section states that "[t]wo
individuals are related to each other by affinity if . . . they are married to each other."  Tex. Gov't
Code Ann. § 573.024(a)(1) (West Supp. 2001).  Thus, the definition of "family" submitted to the
jury was narrower than the definition required by the Penal Code, and not broader, as Romero
argues, because all portions of the definition not relevant to the facts in this case were omitted.  The
definition submitted to the jury by the trial court is not meaningfully different from the definition in
the Penal Code, but is tailored to address only the evidence presented in this case.  The submission
of this definition to the jury does not constitute error, so we need not address the issue of whether
or not there has been egregious harm to the defendant.

CONCLUSION
	We hold that Romero failed to preserve the issue of the definition of "family"
submitted in the jury charge, and that the definition submitted was not erroneous.  Accordingly, we
overrule Romero's point of error and affirm the trial court's judgment of conviction.


  
					Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Puryear
Affirmed
Filed:   June 7, 2001
Do Not Publish

arm must result from the error. 
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  In other words, an error which has
been properly preserved by objectio