# 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 C a u se No. 219

- 81069

- 2012

________________________________________ ___________
Appellant’s Petition for Discretion ary 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 7 5069

Appellee: Sta te of Texas

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

Trial Counsel: Matthew Rolston C ollin County District Attorney ’ s Office 2100 Bloomdale Road, Suite 100 McK inney, Texas 75071

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

- Table of Contents
Identity of Judg e, 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 applicati on 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 T rinity 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. Fami ly 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” fo r purpo ses of determining whether

the t rial court erred w hen i t included a finding o f family v iole nc e i n its

judgment agains t Appellant Jon P aul Stepherson. Because this argument

has not been previousl y addressed by this Court or T exas’s intermediate court s of

appeals, and becau se it necessaril y invol ve s an important poli cy determination that

is important t o th e jurispruden ce of thi s State, Appellant respectfull y submit s 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 hou sehold 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 lesser

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’ 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 ref lects 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 opi nion 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 t o suggest that this definition c ould 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 num ber 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

cont ext of family

- violence findings

. Because the distance between Appellant and

the v ictim 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

- proce ss 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

consanguin ity 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 determinin g whether judge s must re cuse 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 bur ial 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 separ ated 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 b road 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 Hol y 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 withi n 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 legisla tor; 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 pa rticular 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 a ny 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 th e 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 pe tition for discretionary review. A fter receiving

bri efing 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 fi ndi ng, 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 ha ve 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 Febr uary 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. KitaOpinion filed December 4 , 2014



### In The 

# Eleventh Court of Appeals

__________
No. 11

- 13

- 00 128

- 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

T he trial court
, after a bench trial, convicted Jon Paul Stepher son 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 T EX

. P ENAL C ODE A NN

. § 22.01(a) (West Supp. 201 4 ) ( a ssault); T EX

. C ODE C RIM

. P ROC

. A

NN

. art. 42.013 (West 2006 ) ( f inding 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 Charge d Offense The grand jury indicted Appellant for the third

- degree felony of assault of a family or household member by impeding breathing or circ ulation

. P ENAL § 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.

I I

. Evidence at Trial

L.S. testified that she was married to Appellant. Sh e 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 Appell ant

. 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 r ais ed 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 wa ived his right to a jury trial.3 214 S.W.3d 9, 13 (Tex. Cri m. App. 2007). We review all of the evidence in the light most favorable to the jury’s verdict and de termine 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. St ate , 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).

I V. 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 membe r 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.” T EX

. F AM

. C ODE

A

NN

. § 71.004 (West 2014 ) (emphasis added)

. “ F amily” is defined as “individuals related by consanguinity or affinity .” Id

. § 71.003 (emphasis added)

. Relation by consanguinity means that one individual is a descend a nt of the other or that they

3 Appellant state s 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. T EX

. G OV ’ T C ODE A NN

. § 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. , F AM

. § 102.004 (“Standing for Grandparent or Other

Person”

— limits standing to a person related within the third degree by consanguinity to the child); i d

. § 71.004 (“Famil y Violence”

— contains no limits on the degrees of consanguinity); P ENAL § 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.” G OV ’ T § 311.011 (West 2013).

T he meaning of family by consanguinity or affinity, as defined by the legislature, is not ambiguous
, nor do es 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, w e apply th at statutory
definition of family and decline to read or infer l imiting 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 f ind 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 T EX

. R. A PP

. P. 43.2(b).

V I

. 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 T EX

. R. A PP

. P. 47.2(b)

. Panel consists of: W right
, C.J., W illson , J., and B ailey , J.