Breckenridge v. State

• Decision Date: 25 October 2000
• Docket Number: No. 04-99-00858-CR,04-99-00858-CR
• Parties: (Tex.App.-San Antonio 2000) Stephanie BRECKENRIDGE, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 118

40 S.W.3d 118 (Tex.App.-San Antonio 2000)

Stephanie BRECKENRIDGE, Appellant v. The STATE of Texas, Appellee

No. 04-99-00858-CR

Court of Appeals, Fourth District of Texas, San Antonio.

October 25, 2000.

Rehearing Overruled Dec. 28, 2000.

From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 8500 Honorable George Thurmond, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Sarah B. Duncan, Justice.

OPINION

Tom Rickhoff, Justice.

Stephanie Breckenridge appeals a judgment sentencing her to three years imprisonment based on a jury's verdict finding her guilty of four counts of indecency with a child by exposure.¹ Breckenridge asserts sixteen points of error, complaining: (1) the trial court erred in defining "genitalia" in the jury charge; (2) a fatal variance existed between the indictment and the jury charge; (3) the trial court erred in its limiting instruction relating to extraneous misconduct; and (4) the evidence is legally and factually insufficient to support the jury's verdict.

Factual Background

Breckenridge was charged with five counts of indecency with a child by exposure. Two of the counts relate to conduct alleged to have occurred on May 28, 1998, involving two victims, N.L. and M.T.² The remaining three counts relate to conduct alleged to have occurred on June 3, 1998, involving three victims, M.T., E.A., and A.L. The jury found Breckenridge guilty of both counts alleged to have occurred on May 28, 1998, and two of the counts alleged to have occurred on June 3, 1998. The jury found Breckenridge not guilty of the count alleged to have occurred on June 3, 1998, in which M.T. was the alleged victim.

N.L. and M.T. both testified regarding the events that occurred on May 28, 1998. Both boys knew Breckenridge from church because she was their Sunday school teacher, and both boys were friends with Breckenridge's stepson, T.B. On May 28, 1998, N.L. went over to T.B.'s house, and M.T. arrived later. Either Breckenridge or Breckenridge and T.B. brought up the idea of going skinny-dipping, and everyone agreed to the suggestion. N.L. stated that he saw Breckenridge completely nude, including her, "breasts, stomach, back, butt, legs, feet and pubic hair," but he "didn't see her vagina." M.T. stated that he saw Breckenridge's breasts and pubic area. Both boys stated Breckenridge never attempted to hide her nudity. Breckenridge told them that she was afraid of her husband finding out because they would all be in trouble. Breckenridge's husband called while they were in the pool, and Breckenridge got out of the pool. Breckenridge told the boys to hide behind the house, which they did until Breckenridge's husband left. After Breckenridge's husband left, Breckenridge rented two movies containing sexual content, which the three boys watched with Breckenridge while drinking wine coolers supplied by Breckenridge. T.B. and M.T. fell asleep on the floor, and N.L. testified that he rode his motorcycle home. During cross-examination, defense counsel questioned the boys about details provided during their testimony that were not contained in their statements to police and minor inconsistencies between their testimony and their statements.

T.B. also testified about the events of May 28, 1998. T.B. stated that no one suggested skinny-dipping, but after the boys and Breckenridge got into the pool, someone dared everyone to take their suits off. T.B. did not remember his father calling, and T.B. stated that after they left the pool, they went inside to watch television but no one was drinking.

N.L., M.T., E.A., A.L., and J.R. all testified regarding the events that occurred on June 3, 1998. Each of these boys knew Breckenridge because she was their Sunday school teacher and because they were friends with her stepson T.B. After getting physicals for camp at the church, everyone went to Breckenridge's house for a party. Orders were taken for alcoholic beverages, and Breckenridge went to purchase the drinks. After awhile, everyone started dancing. T.B. then told Breckenridge to do her "stool" dance. Breckenridge put a stool in the middle of room, and began dancing provocatively while removing her clothes. T.B. then brought ropes to tie up Breckenridge. At that time, she had removed her top, but not her pants. After tying her up, the boys removed Breckenridge's pants, but not her underwear. The boys let Breckenridge up when she got angry at T.B. for taking pictures. Later, A.L., M.T. and E.A. were "making out" with Breckenridge on the trampoline in the back yard. Breckenridge was groaning and making noises like she was enjoying what was happening. M.T. went inside, but E.A. and A.L. remained outside with Breckenridge on the trampoline. At some point, Breckenridge's underwear went down to her ankles, and E.A. observed A.L. "kissing her crotch area." E.A. stated that he just saw pubic hair, but he "didn't see her vagina." A.L. stated that the last thing he remembered was Breckenridge's pants going down, but he did not remember anything else because he was too intoxicated. A.L. stated that he did not see Breckenridge's genitals. During cross-examination, defense counsel questioned the boys about details provided during their testimony that were not contained in their statements to police and minor inconsistencies between their testimony and their statements.

T.B. also testified about the events of June 3, 1998. He stated that J.R., A.L., N.L., M.T., and E.A. were at his house for a party after the physicals. Breckenridge purchased alcohol for the boys. T.B. testified that he stayed in his room for a long period of time. T.B. stated that he took a picture of Breckenridge when the other boys had pinned her down. T.B. testified that at one point he saw Breckenridge dancing on a stool, but he did not tell her to do that. T.B. stated that Breckenridge never took her clothes off. T.B. testified that he went outside for a short while, then came inside and went to sleep. T.B. stated that Breckenridge remained outside, and he did not know what she did after he came back inside.

Jury Charge

In her first five points of error, Breckenridge complains that the trial court erroneously submitted the following definition of genitals or genitalia in the jury charge:

The genitals or genitalia of a female consist of an internal group and an external group. The internal group is situated within the pelvis, and consists of the ovaries, uterine tubes, uterus, and vagina. The external group is situated below and in front of the pubic arch, and consists of the mons pubis (the rounded mound in front of the joinder of the public bones that becomes covered with hair at the time of puberty), the labia majora and minora (longitudinal folds of skin at the opening of the female orifice) and certain glands situated within the vestibule of the vagina.

Breckenridge contends that the trial court should not have included the definition in the jury charge because: (1) the definition singled out testimony and commented on the weight of the evidence; (2) the definition did not distinctly apply the law to the facts of the case; (3) the definition amounted to a constructive amendment of the indictment in violation of the United States and Texas Constitutions; and (4) the definition was without support in the law or evidence. The State responds that the definition was proper and its submission was not an abuse of the trial court's discretion.

A trial court has broad discretion in submitting proper definitions to the jury. See Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref'd); Macias v. State, 959 S.W.2d 332, 336 (Tex. App.--Houston [14th Dist.] 1997, pet ref'd), cert. denied, (U.S. Oct. 2, 2000)(No. 00-5278). A trial court abuses its discretion if it acts without reference to guiding principles or rules. See Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); State v. Cabello, 981 S.W.2d 444, 445 (Tex. App.--San Antonio 1998, no pet.).

A trial court must define any legal phrase that a jury must necessarily use in properly resolving the issues. See Macias, 959 S.W.2d at 336. Generally, terms not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is acceptable in common parlance. Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000). There are exceptions, however, to this general rule. Id. at 772. Justice is better served, and more consistently applied, if jurors are provided a precise, uniform definition to guide their determination regarding the meaning of certain words and phrases. Id. For example, justice is better served by defining words and phrases which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words have a well-known common law meaning. Id.

The terms genitals and genitalia have acquired an established legal or common law meaning. See, e.g., Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); Carmell v. State, 963 S.W.2d 833, 837 (Tex. App.--Fort Worth 1998, pet. ref'd), rev'd on other grounds, 120 S. Ct. 1620 (2000) (reversed on ex post facto grounds because victim's testimony was not corroborated); Aylor v. State, 727 S.W.2d 727, 729 (Tex. App. --Austin 1987, pet. ref'd); Lujan v. State, 626 S.W.2d 854, 858-59 (Tex. App.--San Antonio 1981, pet. ref'd).

In Clark, the appellant argued that the definition of "sexual contact" included only the anus and genitals, and did not include the urinary opening. Clark, 558 S.W.2d at 889. In addition, the appellant argued that a female's "genitals" included only the vagina and no other part of the genital area. Id. Therefore, the appellant contended that the testimony that he touched the victim's "front butt," which was defined as that "area between your legs where you pea [sic] at," was insufficient to sustain his conviction. Id...