concurring and dissenting.
I agree that the trial court erred in denying Archie’s motion for a mistrial and that the trial court’s error was harmful. Thus I join in reversing the judgment assessing punishment for felony aggravated assault and remanding that cause to the trial court. However, because the trial court’s jury instruction created a new offense, I would also reverse the judgment of conviction of felony family violence assault. Because a majority affirms that judgment, I respectfully dissent.
I acknowledge that Archie did not object to the error in the charge and has not raised the issue on appeal. However, it is well settled that we have the authority to review unpreserved fundamental charge error. Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002) (citing article 36.19 of the Code of Criminal Procedure and Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)); Olivas v. State, 153 S.W.3d 108, 114 (Tex.App.-Waco 2004, pet. filed). A jury charge is fundamentally de*436fective when it authorizes conviction for conduct which is not an offense. Flores v. State, 48 S.W.3d 397, 402 (Tex.App.-Waco 2001, pet. ref'd) (citing Jackson v. State, 591 S.W.2d 820, 824 (Tex.Crim.App.1979)). Review of the fundamental charge error in this case would not violate the rules about procedural default.
“Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.” Tex. Pen.Code Ann. § 1.03(a) (Vernon 2003). Section 22.01 of the Penal Code provides that an assault under that section is a third-degree felony if the offense is committed against a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of such an assault against a member of his or her family or household. Id. § 22.01(b)(2) (Vernon Supp.2004-05). Section 22.01(e) states that “family” has the meaning assigned by Section 71.003 of the Family Code and that “household” has the meaning assigned by Section 71.005 of the Family Code. Id. § 22.01(e) (Vernon Supp. 2004-05).
Section 71.003 of the Family Code states that “family” includes “individuals related by consanguinity or affinity ..., individuals who are former spouses of each other, individuals who are the 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 (Vernon 2002). Section 71.005 defines “household” as “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Id. § 71.005 (Vernon 2002).
The court’s charge correctly contained both of the above definitions. However, the court additionally charged: “Member of a household includes a person who previously lived in a household.” The trial court thus erroneously incorporated the definition of “member of a household” under section 71.006 of the Family Code into the charge. See id. § 71.006 (Vernon 2002).
At least one other court of appeals has said, citing section 71.006, that the State may prove a previous conviction of assault on a member of a household for purposes of 22.01(b)(2) by showing that the defendant and the victim had lived in the same dwelling before the time of the assault. Goodwin v. State, 91 S.W.3d 912, 920 (Tex.App.-Fort Worth 2002, no pet.).
I find nothing to indicate a legislative intent to expand the definition of “household” or to incorporate the definition of “members of a household” in section 71.006 of the Family Code into section 22.01 of the Penal Code. If the legislature so intended, it could have either explicitly referenced 71.006 or referred to chapter 71 of the Family Code generally.1 The stat*437ute does neither. Section 22.01 of the Penal Code plainly refers to one, and only one, section in the Family Code to define “household” for the purposes of section 22.01. That section is section 71.005. By allowing the trial court to charge the jury using a section of the Family Code not mentioned by the legislature, the court has created a new offense: it is a crime to assault a person with whom the actor formerly lived.2
When error in the charge was not the subject of a timely objection to the trial court, reversal will occur only when the error was “fundamental” and “so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’ ” See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (on rehearing). An error results in egregious harm if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). The harm is determined by considering the entire charge; the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998).
Considering the evidence at trial, I do not believe that Archie could have been convicted of family violence assault if the jury had been charged correctly. There is no evidence that Archie and the complaining witness were “family,” as defined by section 71.008 of the Family Code. There is no evidence that the two were related by blood or marriage or that they were both parents of the same child.
Under the plain language of sections 22.01 and 71.005, a person is a member of a “household” if the person is a member of “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Tex. Fam.Code Ann. § 71.005 (emphasis added). The complaining witness testified that, at the time of the offense, she was living in her mother’s house and Archie was living in his father’s house. She testified that she had bought another house, that she had furniture in that house, but that she did not yet live in that house. There was no evidence that Archie was living anywhere but his father’s house. Thus, there was no evidence that the two were living together in the same dwelling at the time of the offense.
There was, however, evidence that Archie had previously lived with the complaining witness. The complaining witness testified that Archie moved in with her and lived with her for an unspecified period of time before she moved into her mother’s house. This is the only evidence of Archie and the complaining witness ever having lived together.
Without the court’s erroneous instruction that “member of a household” includes *438persons who previously lived in a household, a rational jury could not have convicted Archie of the offense of family violence assault. Thus, the error “affects the very basis of the case” and is “fundamental” and “egregious.” Hutch, 922 S.W.2d at 171.
Because the jury charge was fundamental error and Archie was harmed by the error, I would also reverse the judgment of conviction of family violence assault (enhanced) and remand that cause for a new trial.
. For example, section 25.07 of the Penal Code, which deals with violations of protective orders, gives "family,” "household,” and "members of a household” the “meanings assigned by Chapter 71, Family Code.” Tex. Pen.Code Ann. § 25.07(b)(1) (Vernon Supp. 2004-05). In 1999, the legislature amended section 25.07(b) to give those three terms the meanings assigned by "Chapter 71, Family Code” and deleted the statute’s reference to section 71.01. Acts, 76th Leg., R.S., ch. 62, § 15.02, 1999 Tex. Gen. Laws 127, 358. In the same section of the same act, the legislature amended section 42.072(c) of the Penal Code to give those terms the meanings assigned by "Chapter 71, Family Code” and deleted the reference to section 71.01. Id. However, again in the same section of the same act, the legislature chose, for the purposes of sections 22.01 and 46.13(f) of the *437Penal Code, to define "family” by reference to the definition under 71.003 of the Family Code.
Also in 1999, the legislature amended section 22.01(b)(2) (now section 22.01(b)(3)) to include not only members of the defendant's family but also the defendant's household. Acts, 76th Leg., R.S., ch. 1158, § 1, 1999 Tex. Gen. Laws 4063, 4063. "Family” and "Household” were not given the meanings assigned by Chapter 71 generally, but rather were given the meanings under the specific sections 71.003 and 71.005, respectively. Id. Section 71.006 of the Family Code was then in existence, but the legislature did not assign a definition of "member of a household” or refer to section 71.006. Id.
. Section 71.006 of the Family Code does not contain a time limit or specify when the actor and complainant must have lived together.