Green v. State

Citation476 S.W.3d 440
Decision Date16 December 2015
Docket NumberNO. PD–738–14,PD–738–14
Parties Joseph Lester Green, Appellant v. The State of Texas
CourtTexas Court of Criminal Appeals

Tomas Tommy Ramirez, Devine, for Appellant.

Edward F. Shaughnessy III, San Antonio, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, YEARY, and NEWELL, JJ., joined.

In this opinion, we review the holding of the court of appeals reversing the conviction of Joseph Lester Green, appellant, for aggravated sexual assault of a child based on its conclusion that the trial court's instructions to the jury were erroneous and harmful to appellant. See Green v. State, 434 S.W.3d 734, 741 (Tex.App.–San Antonio 2014) ; TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West 2014). The State's sole ground in its petition for discretionary review asserts that the "court of appeals erred in holding that, by defining the terms ‘penetration’ and ‘female sexual organ’ in the instructions to the jury at the conclusion of the evidentiary portion of the guilt phase of the trial, the trial court committed reversible error." Although we agree with the court of appeals's error analysis in that the trial court should not have defined those terms that are undefined in the applicable statute, we disagree that appellant was harmed by the erroneous instructions. We, therefore, sustain in part the State's sole ground that asserts that the court of appeals erred by finding reversible error in the jury instructions. We reverse the judgment of the court of appeals and remand this case to that court to address appellant's remaining points of error.

I. Background

After the complainant's father, appellant, was released from prison, the complainant, who was raised by her grandparents, began to have overnight visits with him. At first, appellant slept on the sofa while the complainant slept in his bed, but later, appellant began sleeping in the same bed with her. During her last visit with him, the complainant, who was twelve years old at the time, awoke to find appellant's hand underneath her clothes and touching her genital area and breast. The complainant started crying, got up, turned on the light, and demanded that appellant take her home. When appellant asked her what was wrong, the complainant told him that she was upset "because he touched her." In response to that, appellant said, "Well, I can go to jail for this serious accusation." After appellant took her home, the complainant immediately reported the touching to a family member. The next day, the complainant's grandparents notified the police, and the complainant was taken to the hospital for a sexual-assault examination, which did not reveal any physical trauma.

At appellant's trial for aggravated sexual assault, the complainant specifically testified about how appellant touched her. She said that his hand was inside her shorts, that his hand rubbed the lips of her vagina, and that his hand went "in between them." The prosecutor handed the complainant a picture and asked her to draw how appellant had touched her. The complainant drew a "circular pattern." She also showed on the picture that she understood what the lips of the vagina were and confirmed that appellant had touched her "in between that area." The complainant acknowledged that, previously, when she was asked by the CPS worker and sexual assault nurse examiner whether she had been penetrated, she had answered "No," explaining that "nothing went in" her and that it "was just on the outside touching." On cross-examination by defense counsel, she was specifically asked about the inconsistencies in her prior statements regarding penetration. Counsel then asked, "So as we sit here today is it your testimony then that your dad did not penetrate you?" She responded, "You're correct." She explained that she believed that penetration means "like insertion," "to insert something," or "like [ ] anything that passed my skin or anything."

Deputy Adam Hernandez with the Bexar County Sheriff's Office testified that he was the patrolman who initially responded to investigate this case. He stated that, in his interview of the complainant, she told him that appellant's "hand [was] inside her panties touching her vagina," but she never told him that appellant penetrated or went inside her vagina. The deputy testified that he explained to the complainant what penetration meant by stating,

I told her, "This is your wall of your private area." And I go, "This is penetration. This is around here." She told me he just went around the vagina. That's what she explained to me, and that's the way I understood it.

Deputy Hernandez further testified that the complainant said that appellant's finger went "around the wall," indicating that the "wall is the vagina." He further stated, "She said he tried sticking it in there but I don't know if he probably couldn't do it or something."

Sergeant Jack Gonzalez with the Medina County Sheriff's Office conducted the follow-up investigation. He testified that he was present in another room watching on a closed-circuit television while a forensic interviewer questioned the complainant. According to Sergeant Gonzalez, the complainant said that appellant's hand was under her panties touching her "cooch," which he understood to mean her vagina. He further recalled that the complainant said that appellant tried to "stick a finger into her vagina." Sergeant Gonzalez indicated that penetration of the female sexual organ includes having a finger between the lips of the vagina, but it does not necessarily require insertion into the vaginal canal. He explained that he initially charged appellant with indecency with a child by contact rather than aggravated sexual assault of a child because he felt more certain as to appellant's guilt of that offense.

Cynthia Garcia was the sexual assault nurse examiner who examined the complainant and determined that no evidence of physical trauma existed. Garcia's report included quotes from her questions to the complainant and the complainant's responses. Garcia asked, "So did his finger go inside past the lip part?" The complainant responded, "No." Garcia explained that she was referencing the "labia majora" when she used the term "lip part" and that "it's the outer part of the genital area." She acknowledged that she did not ask the complainant if anything went in between the lips and asked only if anything "went inside" or "past." She also did not give any further explanation or demonstrations about what penetration of the female sexual organ meant, but indicated that, if the complainant had said that "it went between the labia majora," that would "be considered penetration."

In his testimony, appellant denied any sexual touching of the complainant. Appellant suggested that he was asleep and awoke to find the complainant crying as she claimed that she had a "bad dream" that he had touched her. According to appellant, the complainant then told him, "Dad you were touching me for real." Appellant asked her, "What are you talking about? What do you mean that I was touching you?" The complainant responded by saying that she "just wanted to go home." Appellant then took the complainant back to her grandparents' house. Appellant denied touching the complainant's genital area or breasts, and he suggested that the complainant had fabricated the incident.

After the conclusion of the evidence portion of the trial, the trial court discussed the State's request that definitions for "penetration" and "female sexual organ" be included in the jury instructions. Appellant's counsel objected that any such instructions would constitute an improper comment on the weight of the evidence and were unauthorized by the Code of Criminal Procedure. Counsel also objected to the substance of the trial court's definition for "female sexual organ," explaining that the definition would be "highly confusing and highly misleading" to the jury because it was based on medical definitions, whereas the statutory language had left the term undefined. After overruling defense counsel's objections, the trial court included the State's requested instructions. The trial court defined the meaning of the phrase "penetration of the female sexual organ" in the context of the aggravated-sexual-assault statute.1 The trial court defined the word "penetration," as something that "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[,]" and the instructions specified that "[t]ouching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute." Similarly, the trial court defined the term "female sexual organ," as meaning "the entire female genitalia, including both vagina and the vulva," and the instructions specified that " [v]ulva’ is defined as the external parts of the female sexual organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance to the vagina." The jury found appellant guilty, and the trial court sentenced him to twenty-four years in prison.

On appeal, the court of appeals reversed appellant's conviction on the basis that the terms should have been left undefined, as in the Texas Penal Code, and the jury should have been permitted to construe the terms according to the rules of grammar and common usage. See Green, 434 S.W.3d at 737–39. Relying primarily on this Court's precedent in Kirsch v. State, the court of appeals held that the inclusion of the challenged instructions constituted an improper comment on the weight of the evidence by "focus[ing] the jury's attention on the specific type of evidence that would support a finding of the contested element of penetration" of the female sexual organ. Id. at...

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