                               Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-12-00830-CR

                                       Joseph Lester GREEN,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 11-06-10686-CR
                           Honorable Camile G. DuBose, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring Opinion by: Luz Elena D. Chapa, Justice

Sitting:           Sandee Bryan Marion, Justice
                   Rebeca C. Martinez, Justice
                   Luz Elena D. Chapa, Justice

Delivered and Filed: May 28, 2014

REVERSED AND REMANDED

           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.
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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.



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       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. See TEX. 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


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“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
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“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, 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



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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 calculated to injure” his rights, i.e., whether there was

“some harm.” Ngo, 175 S.W.3d at 743; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984); see TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). In assessing harm, we consider

the jury charge as a whole, the arguments of counsel, all of the evidence “including the contested

issues and weight of the probative evidence,” and any other relevant factors in the record. Wooten

v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). In this case, as discussed below, there was

conflicting testimony on the critical, and hotly contested, question of whether Green touched

A.G.’s female sexual organ only on the “outside” or whether he touched her “beneath the fold of

the external genitalia” amounting to penetration of the female sexual organ. This issue of whether

penetration occurred — a question of fact for the jury to resolve — was the focus of counsel’s

questioning of the witnesses and closing arguments. Viewed in the context of the entire jury

charge, the definitional instructions were error because they impinged on the jury’s fact-finding

authority by focusing the jury’s attention on the evidence that would support a finding of

penetration of the female sexual organ. See Kirsch, 357 S.W.3d at 652. On this record, we cannot

say with “fair assurance” that the charge error did not have an “injurious effect or influence in

determining the jury’s verdict.” Trevino v. State, 100 S.W.3d 232, 243 (Tex. Crim. App. 2003).

We therefore conclude that inclusion of the definitions of “penetration” and “female sexual organ”

in the jury charge resulted in some harm to Green and requires reversal.

       Because we sustain Green’s first jury charge issue, we need not address his assertion that

the charge was also erroneous because it contained a lesser-included offense instruction and his
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complaint concerning exclusion of the video statement. See TEX. R. APP. P. 47.1. We must,

however, address Green’s challenge to the legal sufficiency of the evidence to support his

conviction because, if successful, it would result in greater relief through rendition of a judgment

of acquittal. See Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010) (noting that

appellant who establishes trial error is still entitled to appellate consideration of his claim that the

evidence is insufficient to support his conviction).

         Legal Sufficiency

         Green was charged with committing aggravated sexual assault by “intentionally or

knowingly caus[ing] the penetration of the sexual organ of “A.G.,” a child who was then and there

younger than 14 years of age, by [his] finger.” See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)

(West Supp. 2013). Green asserts the evidence is legally 1 insufficient to prove his finger

penetrated the child’s female sexual organ as required to convict him of aggravated sexual assault.

         In reviewing the sufficiency of the evidence, we determine whether, viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The essential elements

of the crime are the elements of the offense as defined by the hypothetically correct jury charge

for the case, which is one that “accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories

of liability, and adequately describes the particular offense for which the defendant was tried.”




1
  In his brief, Green also asserts the evidence is factually insufficient to support his conviction. However, appellate
courts no longer conduct a factual sufficiency review in criminal cases. Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (holding the Jackson v. Virginia legal sufficiency standard is the only standard to be used in
analyzing whether the evidence is sufficient to prove each element of a criminal offense). Therefore, our analysis
focuses solely on whether the evidence is legally sufficient to support Green’s conviction.

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Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (quoting Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997)). The law “as authorized by the indictment” consists of the

statutory elements of the offense as modified by the charging instrument. Id.; Curry v. State, 30

S.W.3d 394, 404 (Tex. Crim. App. 2000). “Viewing the evidence in the light most favorable to

the verdict” requires us to defer to the jury’s credibility and weight assessments because the jury

is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. Winfrey

v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record supports conflicting

inferences, we presume that the jury resolved the conflicts in favor of the verdict and defer to that

determination. Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012); Lopez v. State,

415 S.W.3d 495, 496-97 (Tex. App.—San Antonio 2013, no pet.).

       In applying our standard of review, we “may articulate a definition of a statutorily

undefined, common term in assessing the sufficiency of the evidence . . . .” Kirsch, 357 S.W.3d

at 651. It is well-established that within the context of sexual assault “penetration” of the female

sexual organ occurs when there is “tactile contact beneath the fold of complainant’s external

genitalia.” Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012); Vernon v. State, 841

S.W.2d 407, 409 (Tex. Crim. App. 1992) (noting that the statute does not criminalize penetration

of the vagina, but the broader conduct of penetration of the “sexual organ” of the child). The act

of “pushing aside and reaching beneath a natural fold of skin into an area of the body not usually

exposed to view, even in nakedness, is a significant intrusion beyond mere external contact” and

constitutes penetration for purposes of a sexual assault. Cornet, 359 S.W.3d at 226 (citing Vernon,

841 S.W.2d at 409). Contact that is more intrusive than contact with the outer vaginal lips amounts

to penetration of the female sexual organ. Id.

       In asserting there is no evidence that his finger penetrated A.G.’s sexual organ, Green cites

to statements A.G. made during the investigation in which she denied that there was penetration,
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denying that her dad’s finger “went inside” or “penetrated” her. For example, the SANE nurse

testified that A.G. pointed to her genitals and told her Green was “trying to put his finger right

there,” explaining further that, “he was touching it on the outside and was trying to stick his finger

inside.” When the nurse asked, “So did his finger go inside past the lip part,” A.G. answered,

“No.” When later asked whether there was “penetration,” A.G. told her there was not. Deputy

Hernandez testified that A.G. did not initially allege any penetration. He stated that he explained

“penetration” to her and used his hand and finger to demonstrate where the “wall of [her] private

area” was located and what amounted to penetration. Hernandez testified that A.G. told him Green

“just went around the vagina.”

       At trial, however, A.G. testified that Green’s finger went in between the outer lips of her

vagina which is sufficient to constitute penetration. Cornet, 359 S.W.3d at 226; Vernon, 841

S.W.2d at 409. Specifically, A.G. testified that on the night of the incident she awoke to find

Green’s hand inside the boxer shorts she was wearing and felt him rubbing “the lips to [her]

vagina.” When the prosecutor asked, “Did he ever go in between them,” A.G. answered, “Yes.”

When questioned about her prior statements that there was no penetration, A.G. explained that to

her “penetration” means “to insert something,” and so when the interviewers asked if there was

any penetration she answered in the negative because “nothing went in me. It was just on the

outside touching.” When the prosecutor referenced her demonstration in front of the jury showing

“that it was between the labia between your lips,” and asked whether anyone had explained to her

that constituted penetration, A.G. replied, “No,” stating she thought “it had to be further.” A.G.

also testified that none of the interviewers explained to her that penetration could be passing in

between the outer vaginal lips.

       The uncorroborated testimony of a child victim is alone sufficient to support a conviction

of aggravated sexual assault of the child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.
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2013); Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d). Moreover,

“[c]hild victims of sexual crimes are afforded great latitude when testifying and they are not

expected to testify with the same clarity and ability as is expected of a mature and capable adult.”

Hiatt, 319 S.W.3d at 121 (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)).

The jury heard A.G. testify that Green was rubbing the outer lips of her vagina and trying to stick

his finger inside her vagina and that, while he was ultimately unsuccessful, his finger did pass “in

between” the outer lips of her vagina. This testimony constitutes sufficient evidence of penetration

under a hypothetically correct jury charge. Id. Further, A.G. explained her prior statements

denying penetration by stating she understood the term to mean insertion of something inside her.

She further testified that the interviewers did not explain to her that penetration could be passing

in between the outer lips of the vagina. Indeed, the SANE nurse conceded that she did not ask

A.G. “if anything went in between the lips” of her vagina, stating, “I just asked her if it went inside;

past.” Hernandez stated he provided A.G. a demonstration of what would constitute penetration.

Ultimately, it was the jury’s role to evaluate A.G.’s credibility and to resolve any conflicts between

her testimony, her prior statements, and the testimony of others, and we defer to the jury’s

assessment. Winfrey, 393 S.W.3d at 768; Merritt, 368 S.W.3d at 525-26. We conclude the

evidence is sufficient to support the jury’s finding that Green is guilty of aggravated sexual assault

of a child. Green’s sufficiency issue is overruled.

                                            CONCLUSION

        Based on the foregoing reasons, we conclude that the submission of the definitional

instructions on “female sexual organ” and “penetration” in the jury charge was harmful error, and

we reverse the trial court’s judgment and remand for a new trial.

                                                    Rebeca C. Martinez, Justice

PUBLISH
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