No. PD-1628-14 ___________________________________________________

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

Dallas, Texas 75208

(214) 699-1863 (phone)

(214) 347-7221 (facsimile)

matt@mattkita.com

Counsel For Appellant

Oral Argument Requested

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

CLERK
- i -

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
- ii -

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
- iii -

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
- iv -

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.
- v -

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 

Disposition:

Found defendant guilty of misdemeanor assault, a lesserincluded 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’

Disposition:

Affirmed the trial court’s finding of family violence; 

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. 
- vi -

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.
- vii -

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?
- 1 -

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).
- 2 -

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).
- 3 -

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).
- 4 -

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....”).
- 5 -

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
- 6 -

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
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

M E M O R A N D U M O P I N I O N

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).
2

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.
3

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.
4

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.
5

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.