Green v. State

• Decision Date: 28 May 2014
• Docket Number: No. 04–12–00830–CR.,04–12–00830–CR.
• Citation: 434 S.W.3d 734
• Parties: Joseph Lester GREEN, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

434 S.W.3d 734

Joseph Lester GREEN, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00830–CR.

Court of Appeals of Texas,

San Antonio.

May 28, 2014.

Tomas Ramirez, III, Law Office of Tomas Ramirez III, Devine, TX, for Appellant.

Edward F. Shaughnessy, III, Attorney At Law, San Antonio, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice REBECA C. MARTINEZ, Justice LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by REBECA C. MARTINEZ, Justice.

Joseph Green appeals his conviction for aggravated sexual assault of a child. Because we conclude the jury charge contained harmful error, we reverse the trial court's judgment and remand for a new trial.

Background

When A.G. was twelve years old, she began communicating with her father, Green, who was incarcerated and who she did not previously know. Green and A.G. exchanged letters for a period of time until Green was released from prison. Upon his release, Green began visiting A.G. at her grandparents' home where she lived. Green's visits evolved into taking A.G. out to eat or to the mall, and eventually included A.G. spending the night with Green at his mother's home where he resided. At first, Green slept on the couch while A.G. slept in his bed, but then Green began sleeping in the bed with A.G. On one of her overnight visits, A.G. awoke to find Green's hand underneath her clothes, touching her genitals and breast. After Green stopped, A.G. started crying, got up, turned on the lights, and demanded he take her home. When Green asked her what was wrong, A.G. told him it was “because he touched her.” Green eventually agreed to drive A.G. home to her grandparents' house.

When A.G. arrived home, she called her Aunt Sandy and told her that her father had touched her. Her grandparents called the police the next day. Bexar County Sheriff's Deputy Adam Hernandez interviewed A.G. at the home and recommended she go to the hospital for a sexual assault exam. SANE Nurse Cynthia Garcia examined A.G.; there was no evidence of any physical trauma. A few days later, A.G. was interviewed by an investigator with the Texas Department of Family and Protective Services. Finally, Mary Barrios of Bluebonnet Advocacy, Inc. conducted a videotaped interview with A.G. Green was initially indicted for indecency with a child by sexual contact. The State later dismissed that indictment and re-indicted Green for aggravated sexual assault of a child, alleging that Green penetrated A.G.'s female sexual organ with his finger. A jury found Green guilty of aggravated sexual assault as charged in the indictment, and he was sentenced to twenty-four years' imprisonment. Green now appeals.

Analysis

On appeal, Green asserts the jury charge contained error, the evidence is insufficient to support his conviction, and the court erroneously excluded a videotaped interview of A.G. We address the jury charge issue first.

Jury Charge

Green argues the jury charge was erroneous because (i) it contained non-statutory definitions of the terms “penetration” and “female sexual organ” which amounted to an improper comment on the weight of the evidence, and (ii) it asked the jury to consider whether Green was guilty of the lesser-included offense of indecency with a child by sexual contact if it found him not guilty of aggravated sexual assault. When reviewing alleged charge error, we first determine whether error exists in the jury charge, and if so whether sufficient harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005).

Definitions. Upon the State's request, and over Green's objection, the court's charge included instructions defining the terms “penetration” and “female sexual organ.” The charge defined “female sexual organ” as “the entire female genitalia, including both vagina and the vulva. Vulva is defined as the external parts of the female genital organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance to the vagina.” The court also defined“penetration” and instructed the jury as follows:

One of the elements in this case is ‘penetration.’ You are instructed that penetration occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with the outer vaginal lips and is complete, however slight, if any. Touching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute.

Green does not argue the definitions are incorrect, but rather argues that no definitions of “penetration” and “female sexual organ” should have been given because when a term is undefined in the Penal Code the jury is to construe its meaning according to the rules of grammar and common usage. SeeTex. Gov't Code Ann. § 311.011 (West 2013); Tex. Penal Code Ann. § 1.05(b) (West 2011) (incorporating Government Code section 311.011). Green relies on Kirsch v. State, in which the Court of Criminal Appeals held a jury instruction defining the common word “operate” was an improper comment on the weight of the evidence in a driving while intoxicated prosecution. Kirsch v. State, 357 S.W.3d 645, 652 (Tex.Crim.App.2012). In Kirsch, the Court noted that while the definition given to the jury was neutral and legally accurate, because the term “operate” is a common word that has not acquired a technical meaning it was to be interpreted by the jury according to its common usage and instructing the jury to apply a particular definition was improper. Id. at 650–52; Tex. Gov't Code Ann. § 311.011 (stating general rule that statutorily undefined term is to be construed according to its common usage, but that words and phrases that have “acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly”). The Court explained that while a particular definition of a statutorily undefined term may be used by an appellate court in conducting a sufficiency review, submitting the definition as an instruction to the jury may constitute an improper comment on the weight of the evidence. Kirsch, 357 S.W.3d at 651. Under article 36.14, the trial court is required to give the jury a written charge “setting forth the law applicable to the case” and “not expressing an opinion as to the weight of the evidence.” Id.;Tex.Code Crim. Proc. Ann. art. 36.14 (West 2007). Generally, if a jury charge instruction “is not derived from the [penal] code, it is not ‘applicable law’ under art. 36.14.” Kirsch, 357 S.W.3d at 651 (quoting Walters v. State, 247 S.W.3d 204, 214 (Tex.Crim.App.2007)). The Court explained that, “[w]ith only limited exceptions, the trial court may not include an instruction that focuses the jury's attention on a specific type of evidence that may support a finding of an element of an offense,” even if the instruction is “facially neutral and legally accurate.” Kirsch, 357 S.W.3d at 651; cf. Medford v. State, 13 S.W.3d 769, 772 (Tex.Crim.App.2000) (holding that “ ‘[a]rrest’ is a technical term possessing a long, established history in the common law, and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest”). Concluding that the jury was free to assign “any meaning which is acceptable in common parlance” to the statutorily undefined word “operate” in the DWI statute, the Court held that inclusion of a particular definition in the jury charge “impermissibly guided their understanding of the term” and “improperly focus[ed] the jury on the type of evidence that would support a finding that appellant was operating his motorcycle.” Kirsch, 357 S.W.3d at 652 (stressing that whether appellant was operating his motorcycle was a question of fact to be resolved by the jury).

We conclude the charge's definitions of “female sexual organ” and “penetration” similarly constituted an improper comment on the weight of the evidence because they focused the jury's attention on the specific type of evidence that would support a finding of the contested element of penetration. See id.;Tex.Code Crim. Proc. Ann. art. 36.14. In a case that pre-dates Kirsch, we previously rejected a similar “comment on the weight of the evidence” challenge to a charge's definition of female “genitals” or “genitalia” in an indecency with a child by exposure prosecution. See Breckenridge v. State, 40 S.W.3d 118, 122–23 (Tex.App.-San Antonio 2000, pet. ref'd). We held the trial court did not abuse its discretion by defining the term in the jury charge because the victims' testimony drew a distinction between the vagina and pubic hair or pubic area that could have confused the jurors and it was necessary they understand the legal meaning of genitals. Id. at 123–24 (also noting the terms “genitals” and “genitalia” have acquired an established legal or common law meaning which includes more than just the vagina). However, Breckenridge is a pre- Kirsch opinion and relied heavily on cases addressing sufficiency of the evidence rather than definitional instructions in the jury charge. See id. We therefore conclude that Breckenridge is distinguishable from this case. See Trevino v. State, No. 07–11–0027–CR, ––– S.W.3d ––––, –––– – ––––, 2013 WL 1110683, at *4–5 (Tex.App.-Amarillo Mar. 18, 2013, no pet.) (on remand from Court of Criminal Appeals for reconsideration in light of Kirsch, distinguishing Breckenridge and holding jury instruction defining female “genitalia” was comment on the evidence but error was harmless); see also Steadman v. State, 280 S.W.3d 242, 247–48 (Tex.Crim.App.2009) (assessing sufficiency of the evidence and discussing the broad scope of the definition of “penetration” in sexual assault cases).

Having concluded that submission of the definitions was error, we must determine whether the error was harmful. Because Green properly objected to the definitions, we determine whether “the error appearing from the record was...