Aniseto Garcia Barbosa v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00640-CR
Anieseto G. BARBOSA, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-2861
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 5, 2004

AFFIRMED

Aniseto G. Barbosa, Jr. appeals his convictions of injury to an elderly individual, Marina Barbosa, and assault of a member of Barbosa's family or household, Luciano Barbosa. Barbosa contends that the evidence is legally insufficient to support his convictions because no evidence was presented to show: (1) Marina Barbosa, his mother, was an elderly individual at the time of the offense; or (2) Luciano Barbosa, his brother, was a member of Barbosa's household. We affirm the trial court's judgment.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). With regard to Barbosa's contention that the evidence was legally insufficient to show that his mother was an elderly individual, an elderly individual is a person 65 years of age or older. Tex. Pen. Code Ann. 22.04 (Vernon 2003). In this case, the offense occurred on January 19, 2002, and the guilt/innocence phase of Barbosa's trial began on May 28, 2003, and ended on May 29, 2003. At trial, the investigating officer testified that he listed the date of birth of Barbosa's mother as February 15, 1920. In addition, Barbosa's brother testified that his mother was 84 on the date of trial, and both Barbosa and his sister testified that their mother was 83 years old. This evidence is legally sufficient to prove that Barbosa's mother was 65 years of age or older at the time of the offense.

With regard to the assault conviction, Barbosa contends that the evidence is insufficient to support the conviction because the indictment alleged that he assaulted a member of his family and household, thereby requiring the State to prove that his brother was a member of his household. The jury charge, however, instructed the jury that it could find Barbosa guilty of felony assault if it found that he intentionally, knowingly, or recklessly caused bodily injury to a member of his family or household. Section 22.01 provides, in relevant part, that a person commits a felony assault if he intentionally, knowingly, or recklessly causes bodily injury to a member of his family or household. Tex. Pen. Code Ann. 22.01(a)(1), (b)(2) (Vernon 2003). Even where an indictment alleges differing methods of committing an offense in the conjunctive, it is proper to charge the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Seals v. State, 90 S.W.3d 422, 422-23 (Tex. App.--Eastland 2002, pet. ref'd); Cameron v. State, 988 S.W.2d 835, 849-50 (Tex. App.--San Antonio 1999, pet. ref'd). Accordingly, evidence that Barbosa assaulted his brother, who was a member of Barbosa's family (1), was sufficient to support his conviction even absent evidence that his brother was a member of his household.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. Section 22.01(e)(1) of the Penal Code defines "family" as having the meaning "assigned by Section 71.003, Family Code." Tex. Pen. Code Ann. 22.01(e)(1) (Vernon 2003). "Family" is defined in Section 71.003 as including individuals related by consanguinity as determined by Section 573.022, Government Code." Tex. Fam. Code Ann. 71.003 (Vernon 2002). Two individuals are related by consanguinity if they share a common ancestor, and brothers are related within the third degree by consanguinity. Tex. Gov't Code Ann. 573.022-573.023 (Vernon 1994).