                                NO. 07-07-00036-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL E

                                   JUNE 28, 2010


                     ROBERT L. GONZALES, JR., APPELLANT

                                          v.

                        THE STATE OF TEXAS, APPELLEE


           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2006-414,463; HONORABLE CECIL G. PURYEAR, JUDGE


Before QUINN, C.J., and CAMPBELL, J., and BOYD, S.J.1


                             MEMORANDUM OPINION


      Appellant Robert L. Gonzales, Jr. appealed from his jury conviction of two counts

of aggravated sexual assault and the resulting two concurrent sentences of life

imprisonment. In our opinion, Gonzales v. State, No. 07-07-0036-CR, 2009 Tex.App.

LEXIS 1435 (Tex.App.—Amarillo Feb. 27, 2009) (mem. op., not designated for

publication), we affirmed the trial court=s judgment as to one count and vacated the

judgment as to the other count, finding that conviction of both counts violated the

      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
Double Jeopardy Clause. The Court of Criminal Appeals reversed our decision, finding

no double jeopardy violation, and remanded the cause for our consideration of the third

point of error appellant raised in his appeal. Gonzales v. State, 304 S.W.3d 838 (Tex.

Crim.App. 2010).


        Appellant’s third point asserted error in the court’s charge. He argues the charge

included an Aoverly expansive@ and improper definition of the term Afemale sexual

organ,@ pertinent to the count charging appellant with aggravated sexual assault of his

eight-year-old daughter by penetration of her sexual organ. The charge defined the

term as follows: A>Female sexual organ=@ means and includes the vulva or tissue

immediately surrounding the vagina and the vagina and female genitalia or any parts

between the labia of the female genitalia.@ Appellant objected to the definition, stating

that the instruction amounted to an improper comment on the evidence and would

confuse or mislead the jury. Appellant also objected on the basis that the phrase is not

statutorily defined and thus should be left to the jury to define in accordance with

common usage.


        Appellant cites Vernon v. State, 841 S.W.2d 407 (Tex.Crim.App. 1992) and Oliva

v. State, 942 S.W.2d 727 (Tex.App.BHouston [14th Dist.] 1997, pet. dismissed) to

support his contention the definition was improper. However, these cases note only that

because the term Afemale sexual organ@ is not defined by statute, the jury is free to

apply the term through its common and ordinary meaning. Neither case stands for the

proposition that a trial court is prohibited from providing a definition that will assist the

jury.

                                             2
       Appellant=s specific objection to the definition of Afemale sexual organ@ included

in the court=s charge has been rejected in other cases in which courts have given an

almost identical definition. See Lara v. State, No. 05-02-00611-CR, 05-02-00612BCR,

2003 WL 42418 (Tex.App.BDallas January 7, 2003, pet. ref=d) (mem. op., not

designated for publication); Ralph v. State, No. 05-00-00706-CR, 2001 WL 522009

(Tex.App.BDallas May 17, 2001, pet. ref=d) (mem. op., not designated for publication)

(both discussing inclusion of same definition of Afemale sexual organ@ as that supplied

here and finding the trial court did not abuse its discretion) (each citing Karnes v. State,

873 S.W.2d 92, 96 (Tex.App.BDallas 1994, no pet.). Like the Dallas court, we find no

abuse of discretion in the trial court=s inclusion of its definition of the term Afemale sexual

organ,@ and overrule appellant=s third point of error.


       All appellant’s points of error having been resolved against him, we affirm the trial

court’s judgment.




                                                          James T. Campbell
                                                               Justice




Do not publish.




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