TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00101-CR
Alberto Torres, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY,
NO. D-1-DC-11-202065, HONORABLE MIKE DENTON, JUDGE PRESIDING
MEMORANDUM OPINION
Alberto Torres was convicted of assaulting his wife, Irene Lopez, in violation of
subsection 22.01(b)(2)(A) of the Penal Code. See Tex. Penal Code § 22.01(b)(2)(A). That provision
elevates the offense level for an assault from a misdemeanor to a third degree felony if the offense
is committed against “a person whose relationship to or association with the defendant is described
by . . . [the] Family Code” and if the defendant has previously been convicted of a prior assault
“against a person whose relationship to or association with the defendant is” also described by the
Family Code. Id.
In a single issue on appeal, Torres contends that the trial court erred by failing to
include in the jury charge the statutory definition for family member. The jury charge, which
mirrored the indictment, stated, in relevant part, that Torres did “intentionally, knowingly or
recklessly cause bodily injury to IRENE LOPEZ, a member of . . . Torres’s Family or household
and with whom . . . TORRES has had a dating relationship.” The jury charge did not include the
definition of “Family” as detailed in the Family Code. See Tex. Fam. Code § 71.003.
The State concedes that it was error not to include the definition, and Torres
admits that he did not object to the omission during trial. Accordingly, Torres is only entitled to
reversal if the error resulted in egregious harm. Hollander v. State, 414 S.W.3d 746, 749 (Tex.
Crim. App. 2013).
The only testimony regarding the nature of Torres’s relationship with Lopez came
from Lopez and from her daughter, Adriana Rios. Both of them testified that Torres and Lopez had
been married for five years. Torres did not dispute that fact during trial, and no evidence was
admitted suggesting that the two were not married. Unquestionably, a husband and wife are the very
essence of “family” as it is commonly understood, and the Family Code provisions further broaden
the definition to include individuals who might not necessarily fall within the common meaning.
See Tex. Fam. Code §§ 71.0021(b) (including individuals who have dating relationship or had dating
relationship in past), .003 (defining family to include people who are married to one another and
descendants and ancestors as well as individuals who are related to spouse by consanguinity, former
spouses, parents of same child regardless of whether they are married, and foster children and
parents regardless of whether they live together), .005 (including individuals who live together in
same household regardless of whether they are related).
Based on the record of this case, we must conclude that any error resulting from the
omission from the jury charge of the statutory definition was not egregiously harmful. Accordingly,
we overrule Torres’s sole issue on appeal.
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CONCLUSION
Having overruled Torres’s issue on appeal, we affirm the trial court’s judgment
of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Rose, and Field
Affirmed
Filed: March 5, 2014
Do Not Publish
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