Richard Nieto Trevino v. The State of Texas--Appeal from 426th District Court of Bell County (majority)
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In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-11-0027-CR
________________________
RICHARD NIETO TREVINO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 426th District Court
Bell County, Texas
Trial Court No. 65376, Honorable Fancy H. Jezek, Presiding
March 18, 2013
OPINION
Before Campbell and Hancock and Pirtle, JJ.
Appellant, Richard N. Trevino, was convicted of the offense of indecency with a
child by contact1 and sentenced to twenty years‘ imprisonment. This Court affirmed his
conviction.
Trevino v. State, No. 07-11-00027-CR, 2011 Tex. App. LEXIS 5777
(Tex.App.—Amarillo July 27, 2011) (mem. op., not designated for pulication).
The
Texas Court of Criminal Appeals granted appellant‘s petition for discretionary review. In
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See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
re Trevino, PD-1304-11, 2011 Tex. Crim. App. LEXIS 1676 (Tex.Crim.App. Dec. 14,
2011). Subsequently, the Texas Court of Criminal Appeals decided Kirsch v. State,
which addressed the controlling issue presented by appellant‘s appeal. Kirsch v. State,
357 S.W.3d 645 (Tex.Crim.App. 2012).
Thereafter, the Texas Court of Criminal
Appeals vacated this Court‘s decision and remanded the case for reconsideration in
light of Kirsch. Trevino v. State, PD-1304-11, 2012 Tex. Crim. App. Unpub. LEXIS 427
(Tex.Crim.App. May 2, 2012) (not designated for publication).
After the case was
remanded, the parties were requested to provide additional briefing in light of the Kirsch
opinion.
Appellant contends that, under Kirsch, the trial court‘s definition of female
genitalia was error and that the error was harmful. Specifically, appellant contends that
the definition provided to the jury was an improper comment on the weight of the
evidence. The State avers that the definition given by the trial court was not error and
further, if it was error, such error was not harmful. We will affirm.
Factual and Procedural Background
The facts of the case are more fully discussed in this Court‘s original opinion and
we refer the parties to that opinion. See Trevino, 2011 Tex. App. LEXIS 5777, at *1-3.
Of particular importance to our consideration is the testimony of the victim, V.H., and the
testimony of the sexual assault nurse examiner (SANE), Heather Taylor.
Regarding the instant offense, V.H. testified that, after appellant stopped the bus,
he came and set in the seat next to or across from her. She continued:
Q. Okay. And then what happened.
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A. We were talking, and started kissing. And we- - we took off my pants.
And he started kissing my genital area.
Q. Did he touch you?
A. Yes.
Q. Where did he put his hands on your body?
A. On my breasts and my back, and the genital area.
Q. Did he touch you on the breasts and in the genital area on top of the
clothes or under the clothes?
A. The breasts was on top. The genital was under, cause my pants were
off.
Q. All right. And I apologize for asking, but when he put his hand on your
genital area down there, what part - - where was his hand?
A. The top. It wasn‘t like going inside or anything.
Q. Okay. Was that an area where you had already begun to grow hair?
A. Yes.
Q. And did his hand actually make contact with your hair, with your genital
area?
A. Yes.
Following V.H.‘s testimony, the State presented the testimony of Heather Taylor,
the sexual assault nurse examiner. During her testimony, Taylor described the female
genital area in some detail. While using State‘s Exhibit 25, a diagram of the female
genital area, Taylor gave the following testimony:
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Q. It‘s easier if you take a pen and point to the object on the screen -- on
the projector.
A. Okay. The external structures, the first thing have, this is called the - the fatty outer lips of the - - of the genitalia is called the labia majora.
Okay. That is where pubic hair grows. Okay. Also, part of the external
genitalia is called the mons pubic – pubis. It is the area up here. It is a
fatty layer of tissue over the pubic bone that also has pubic hair growth on
it as well.
...
And I apologize. I did forget to mention the fatty outer lips which is the
labia majora, then you have the inner lip which is the labia minora, it‘s the
thin inner lip, as well.
The State then asked some specific questions regarding the female genitalia.
Q. If we‘re looking at genitalia, and assuming we have the female whose
reached puberty and has pubic hair - A. Yes, ma‘am.
Q. - - are the external genitalia in a female covered with pubic hair?
A. Yes, ma‘am.
Q. And that‘s actually part of the - - of the genitalia even though it‘s not
inside the vagina; is that fair?
A. Yes, ma‘am.
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At the conclusion of the evidence the trial court prepared the court‘s charge to
the jury. Contained in the charge is the definition at issue in this case. The trial court
defined ―genitalia‖ as follows:
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 pubis (the rounded
mound in front of the joinder of the pubic 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.
Appellant objected to the proposed definition on the basis that it was a comment on the
weight of the evidence.
Appellant maintained that the definition ―paraphrases and
consists of the same testimony that was given by the SANE nurse, Nurse Taylor, who
testified and made the very same description.‖ The trial court overruled the appellant‘s
objection.
The jury found appellant guilty of indecency with a child by contact and set his
punishment at imprisonment for twenty years. Appellant perfected his appeal and the
issue is now before us for a second time. On remand from the Texas Court of Criminal
Appeals, we now address appellant‘s contention that the definition given by the trial
court was a comment on the evidence in light of the opinion of the Texas Court of
Criminal Appeals in Kirsch.
Standard of Review
Appellate review of alleged jury charge error is a two-step process. Kirsch, 357
S.W.3d at 649 (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994) (en
banc)). Initially, the reviewing court must determine if the charge was erroneous. Id.
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(citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003) (en banc)). If we
find that error occurred, we must then analyze the error for harm. Id. In analyzing the
harm issue where appellant has objected to the charge at issue, as in this case,
reversal is required if the error is ―calculated to injure the rights of [appellant]. Almanza
v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (en banc) (op. on reh‘g). Stated
differently, an error that has been properly preserved is reversible unless it is harmless.
Id.
Applicable Law
A person commits the offense of indecency with a child by contact if, with a child
younger than 17 years of age and not the person‘s spouse, the person engages in
sexual contact with the child or causes the child to engage in sexual contact. TEX.
PENAL CODE ANN. § 21.11(a)(1). ―Sexual contact‖ means ―any touching by a person‖ of
―any part of the genitals of a child‖ or ―any touching of any part of the body of a child‖
with ―any part of the genitals of a person,‖ ―if committed with the intent to arouse or
gratify the sexual desire of any person.‖ Id. § 21.11(c). The Texas Penal Code does
not define the term ―genitals.‖
The trial court‘s charge to the jury must satisfy the following definition:
a written charge distinctly setting forth the law applicable to the case; not
expressing any opinion as to the weight of the evidence, not summing up
the testimony, discussing the facts or using any argument in his charge
calculated to arouse the sympathy or excite the passions of the jury.
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court‘s charge must
contain an accurate description of the law.
(Tex.Crim.App. 2001) (en banc).
Ex parte Varelas, 45 S.W.3d 627, 633
But the trial court must not convey any personal
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opinion in the jury charge as to the truth or falsity of any evidence. Russell v. State, 749
S.W.2d 77, 78 (Tex.Crim.App. 1988) (en banc). A charge that ―assumes the truth of a
controverted issue‖ is an improper comment on the weight of the evidence. Whaley v.
State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986); Delapaz v. State, 228 S.W.3d 183, 212
(Tex.App.—Dallas 2007, pet. ref‘d). Further, because ―[j]uries are free to ‗consider and
evaluate the evidence in whatever way they consider it relevant to the statutory
offenses,‘‘‘ ―‗special, non-statutory instructions, even when they relate to statutory
offenses or defenses, generally have no place in the jury charge.‘‖ Kirsch, 357 S.W.3d
at 652 (quoting Walters v. State, 247 S.W.3d 204, 211 (Tex.Crim.App. 2007)).
The Texas Government Code provides that undefined terms shall be ―construed
according to the rules of grammar and common usage.‖
TEX. GOV‘T CODE ANN. §
311.011 (West 2005). Jurors may ―freely read [undefined] statutory language to have
any meaning which is acceptable in common parlance.‖ Kirsch, 357 S.W.3d at 650.
However, if such undefined terms have acquired a peculiar and appropriate meaning in
the law, they are considered as having been used in their technical sense. Id.
Analysis
The essence of the parties‘ positions regarding whether error exists in the giving
of the definition of ―genitalia‖ concerns the question of whether ―genitalia‖ has acquired
a peculiar and appropriate meaning in the law, such that it is considered as having been
used in its technical sense. Id. Appellant contends that it has not and, therefore, the
giving of a definition violated the rules found in the Texas Code of Criminal Procedure
concerning jury charges. The State counters that, as demonstrated in Breckenridge v.
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State, ―genitalia‖ has acquired an established legal and common law meaning.
Breckenridge v. State, 40 S.W.3d 118, 123 (Tex.App.—San Antonio 2000, pet. ref‘d).
We cannot agree with the State‘s reliance on Breckenridge.
Breckenridge is an opinion that predates the Texas Court of Criminal Appeals‘s
decision in Kirsch. Moreover, the cases relied on in Breckenridge do not support the
holding. Of the five cases cited in the opinion, four are cases that were deciding issues
of sufficiency of the evidence. See 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);
Bryant v. State, 685 S.W.2d 472, 474 (Tex.App.—Fort Worth 1985, pet. ref‘d); and
Lujan v. State, 626 S.W.2d 854, 858–59 (Tex.App.—San Antonio 1981, pet. ref‘d). As
the Kirsch opinion noted, ―an appellate court may articulate a definition of a statutorily
undefined, common term in assessing the sufficiency of the evidence on appellate
review, [but] a trial court‘s inclusion of that definition in a jury charge may constitute an
improper comment on the weight of the evidence.‖ Kirsch, 357 S.W.3d at 651. The
Aylor case, also cited in the Breckenridge opinion, discusses the relationship between
―genitals‖ and ―vagina‖ for the purposes of analysis pursuant to the allegation of
violation of the ex post facto challenge to a conviction. Aylor v. State 727 S.W.2d 727,
729 (Tex.App.—Austin 1987, pet. ref‘d).
None of these cases involved the use of a
definitional instruction for ―genitalia‖ in a court‘s jury charge.
This leaves Breckenridge relying singularly on the posit that the exception to the
general rule announced in Medford v. State—that undefined terms are to be understood
as ordinary usage allows, and jurors may give them any meaning which is acceptable in
common parlance—should apply.
See Medford v. State, 13 S.W.3d 769, 771–72
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(Tex.Crim.App. 2000).
The problem with this analysis is that the term under
consideration in Medford was ―arrest,‖ and the court in Medford held that ―‗arrest‘ 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.‖ Medford,
13 S.W.3d at 772. The State has not provided, nor are we aware of, any authority
claiming that ―genitalia‖ has, prior to this case, acquired such a common law definition.
Accordingly, we do not find Breckenridge to control the issue of whether the trial court
committed error in giving the definition of ―genitalia‖ to the jury.
Our analysis turns on the relationship between the definition given and the
testimony of the State‘s witnesses. Principally, it is the testimony of V.H. and the SANE
nurse that results in our conclusion that the definition was a comment on the evidence.
V.H. testified using the term ―genital‖ without a lot of explanation, other than the area
where she had begun to grow pubic hair. Following this was the testimony of the SANE
nurse, Taylor, who gave a rather long and detailed explanation of what she meant when
she used the terms ―genital‖ and ―genitalia,‖ which explanation included reference to the
mons pubis and the fact that the exterior of this area would have pubic hair growing on it
if the female had reached puberty.
Then there followed the definition which almost tracked the testimony of the
SANE nurse exactly. More problematic is that this definition focused the jury‘s attention
on the area of the pubic bone with the phrase that such exterior of that area would have
pubic hair growing on it if the female had reached puberty. By doing so, the trial court,
in effect, directed the attention of the jury to a particular portion of the testimony and
granted that testimony its seal of approval by tracking the same. The fact that such
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definition might be considered accurate does not save it from its flaw: it directs the jury
to focus on a particular piece of evidence to support a finding of an element of the
charged offense. See Kirsch, 357 S.W.3d at 652. This, in turn, violates article 36.13 of
the Texas Code of Criminal Procedure because the question of whether appellant
violated section 21.11(a)(1) by having contact with V.H.‘s genitals is a jury question.
See TEX. CODE CRIM. PROC ANN. art. 36.13 (West 2007). Thus, the instruction does, in
fact, constitute a comment on the evidence and, as such, invades the jury‘s province.
See Kirsch, 357 S.W.3d at 652. The giving of the definition was error by the trial court.
Harm Analysis
The final inquiry we must make is the issue of harm.
Remembering that
appellant did object to the giving of the definition, our inquiry is whether the error was
―calculated to injure the rights of [appellant].‖ Almanza, 686 S.W.2d at 171. Stated
differently, an error that has been properly preserved is reversible unless it is harmless.
Id. In assessing harm under the Almanza standard for preserved error, a reviewing
court is directed to review the evidence supporting guilt, the argument of counsel, the
charge as a whole, and, in short, the entire record. See id. at 174 (citing Davis v. State,
28 Tex. Ct. App. 542, 13 S.W. 994, 995 (1890)).
Our review of the record reveals that the issue of whether appellant touched the
area of the genitalia was not a contested issue. Instead, appellant argued that no
touching occurred with the intent to arouse or gratify his sexual desire. This is reflected
in the nature and tenor of trial counsel‘s cross-examination of V.H.
Trial counsel
examined V.H. closely about whether she saw appellant‘s sexual organ during the
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incident alleged in the indecency indictment.
Further, trial counsel examined V.H.
regarding, if she did in fact see appellant‘s sexual organ, whether the same was erect.
Finally, in final arguments, trial counsel argued the sexual contact either did not occur,
based upon credibility of V.H.‘s testimony, or, if it did occur, there was no proof that the
contact occurred to arouse or gratify appellant‘s sexual desire. A review of the final
arguments offered by the State, reflects that the State did not emphasize the definition
in question. Finally, the definition itself was more in the nature of a ―mild, neutral, and
an obvious common-sense proposition.‖
Brown v. State, 122 S.W.3d 794, 802
(Tex.Crim.App. 2003) (dealing with a definition of normal use); Baggett v. State, 367
S.W.3d 525, 529 (Tex.App.—Texarkana 2012, pet. ref‘d). In the final analysis, the trial
court‘s error was not calculated to injure the rights of appellant.
See Almanza, 686
S.W.2d at 171. As such, the error was harmless.
Conclusion
Having found that the trial court‘s error was harmless, we overrule his issue and
affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Publish.
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