Affirm and Opinion Filed July 12, 2013




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01679-CR

                               JORGE ARREDONDO, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F09-56346-K

                                          OPINION

                         Before Justices FitzGerald, Francis, and Lewis
                                 Opinion by Justice FitzGerald

       Appellant Jorge Arredondo was convicted of indecency with a child and sentenced to

three years in prison. On appeal, he raises two points of error. He complains that the jury charge

was erroneous and that the trial judge improperly commented on the weight of the evidence

during voir dire. We affirm.

                                       I. BACKGROUND

       The evidence at appellant’s jury trial showed the following facts. On June 9, 2009, the

thirteen-year-old complainant spent the night at her grandmother’s house. Several other people

were present; one of the complainant’s aunts lived at the house with the complainant’s

grandmother, and two of her cousins also spent that night there. Appellant was also present that

evening, having arrived at around 9 p.m. The complainant testified that during the night,
appellant went into her bedroom three different times and touched her on each of those

occasions. She testified that on the first occasion, appellant touched her vagina both over and

under her shorts, and he moved his hand back and forth. He left the room, and then a few

minutes later he returned and put his hand on her vagina over her shorts. He left the room again,

and the complainant rolled over so that she was lying on her stomach. Then appellant returned,

touched the complainant’s buttocks over her shorts, and left again. Appellant left the house the

next morning before the complainant got out of bed. The complainant reported the incidents to

her mother the next day, and her mother called the police.

       Appellant was indicted for indecency with a child. The issue of guilt was tried to a jury,

and the jury found appellant guilty. The issue of punishment was tried to the bench, and the trial

judge assessed appellant’s punishment at three years’ imprisonment. Appellant timely appealed.

                                           II. ANALYSIS

A.     Jury charge

       In his first point of error, appellant argues that the trial judge erred by including in the

jury charge the full definitions of “intentionally” and “knowingly,” thereby confusing the jury.

Appellant acknowledges that he did not object to the jury charge. Accordingly, in this appeal we

determine first whether the jury charge was erroneous. Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009). If it was, we reverse only if the error was so egregious and created such

harm that it denied appellant a fair and impartial trial. See id.

       These are the jury instructions appellant complains of:

               A person commits the offense of INDECENCY WITH A CHILD if, with
       a child younger than 17 years of age, the person intentionally or knowingly
       engages in sexual contact with the child with intent to arouse or gratify the sexual
       desire of any person.

             A person acts intentionally, or with intent, with respect to a result of his
       conduct when it is his conscious objective or desire to cause the result.


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                   A person acts knowingly, or with knowledge, with respect to a result of
           his conduct when he is aware that his conduct is reasonably certain to cause the
           result.

                  “Sexual contact” means the following act, if committed with the intent to
           arouse or gratify the sexual desire of any person:

                   (1) any touching by a person, including touching through clothing, of any
           part of the genitals of a child.

                      ...

                  Now if you find from the evidence, that on or about 9th [sic] day of June,
           A.D., 2009 in Dallas County, Texas, the defendant, JORGE ARREDONDO, did
           unlawfully then and there intentionally or knowingly engage in sexual contact
           with [complainant], a child younger than 17 years and not then the spouse of the
           defendant, by contact between the hand of the defendant and the GENITALS of
           the complainant, with intent to arouse or gratify the sexual desire of the
           defendant, then you will find the defendant guilty of INDECENCY WITH A
           CHILD BY CONTACT as charged in the indictment.

Appellant argues that the trial judge erred by defining “intentionally” and “knowingly” in terms

of the result of an actor’s conduct because indecency with a child is a “nature of the conduct”

offense, meaning that the actor must intend to engage in the proscribed conduct rather than

intend to bring about any particular result. See Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.

App.—Corpus Christi 2000, pet. ref’d).

           We compare the jury charge to the relevant statute. As applicable to the facts of this

case, the statute defines indecency with a child as engaging in “sexual conduct” with a person

under 17 years of age, TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011), and it defines “sexual

conduct” as touching, including touching through clothing, any part of the genitals of the child

“with the intent to arouse or gratify the sexual desire of any person,” id. § 21.11(c)(1).1 In other

words, the offense consists of touching, including touching through clothing, any part of the

genitals of a child under the age of 17 years, with the intent to arouse or gratify the sexual desire

     1
        Section 21.11 was amended in 2009, effective after the date of the offense involved in this case. See Act of May 18, 2009, 81st Leg., R.S.,
ch. 260, § 1, 2009 Tex. Gen. Laws 710. Those amendments made marriage an affirmative defense to prosecution under section 21.11, and they
are not relevant to this case. Accordingly, we cite the current version of the statute.



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of any person. See generally id. § 21.11(a)(1), (c)(1). Thus, the only mental state expressly

required by the statute is “intent,” and the statute appears to require the actor’s intent to be

directed to the result of the conduct—arousal or gratification of a person’s sexual desire—rather

than the nature of the conduct, which is the touching itself. Logically, an actor cannot touch a

child with the intent to arouse or gratify sexual desire without also knowingly or intentionally

committing the touching itself. See McMillan v. State, 926 S.W.2d 809, 811 (Tex. App.—

Eastland 1996, pet. ref’d) (“The jury could not have found such an intent [to arouse or gratify

sexual desire] unless it believed that appellant knowingly or intentionally engaged in sexual

contact with the complainant.”); see also Guia v. State, 723 S.W.2d 763, 765 (Tex. App.—Dallas

1986, pet. ref’d) (stating that the elements of indecency with a child are that the defendant “1)

knowingly or intentionally; 2) engaged in sexual contact; 3) with a child; 4) younger than

seventeen years of age; 5) who was not the spouse of the accused”). Nevertheless, the statute

does not expressly require proof that the actor intentionally or knowingly engaged in sexual

contact with a child, see generally TEX. PENAL CODE ANN. § 21.11, and the jury charge in this

case did.

       Assuming without deciding that the trial judge erred by including the definitions of

“intentionally” and “knowingly” in the jury charge and by including the phrase “intentionally or

knowingly” in the definition of the offense and in the application paragraph, we conclude that

appellant was not egregiously harmed by these instructions. In assessing harm, we may consider

(1) the charge itself, (2) the state of the evidence, including the contested issues and the weight

of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information

revealed by the record. Vega v. State, 394 S.W.3d 514, 521 (Tex. Crim. App. 2013). As for the

charge itself, the application paragraph required the State to prove all the statutory elements,

including intent to arouse or gratify a person’s sexual desire. The presence of the additional

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phrase “intentionally and knowingly” would not have reduced the State’s burden of proof, so any

harm caused by the inclusion would have been minimal. With respect to the evidence, the

contested issue was the complainant’s credibility, not appellant’s intent, knowledge, or lack

thereof. Appellant directs us to no evidence putting his intent or knowledge at issue, and we

have found none. The closing arguments focused on the complainant’s credibility. Under these

circumstances, appellant did not suffer egregious harm. See Rodriguez, 24 S.W.3d at 503

(concluding on similar facts that there was no egregious harm); see also Battaglia v. State, No.

05-06-00798-CR, 2007 WL 4098905, at *2 (Tex. App.—Dallas Nov. 19, 2007, no pet.) (not

designated for publication) (rejecting claim of egregious harm from similar jury charge).

        Appellant argues that harm is shown by certain statements by the judge and certain

questions by veniremembers during voir dire.         We disagree.    One veniremember, whom

appellant concedes did not sit on the jury, expressed some confusion about how to know whether

alleged conduct gratified appellant’s sexual desire, but this confusion did not implicate the

definitions of “intentionally” or “knowingly,” and there is no indication that any members of the

jury were confused about the intent element. The judge did briefly discuss the meanings of

“intentionally” and “knowingly” during voir dire, but there is no indication that the jury was

confused by the judge’s remarks, or that the judge’s remarks had any influence in this case that

turned primarily on the complainant’s credibility.

        Because the charge error, if any, did not cause egregious harm, we overrule appellant’s

first point of error.

B.      Comments by the trial judge

        In his second point of error, appellant argues that the trial judge erred by commenting on

the weight of the evidence before the venire panel regarding the complainant’s age and the

parties’ marital status. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979) (providing that,


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before the return of the verdict, the trial judge shall not “make any remark calculated to convey

to the jury his opinion of the case”). Appellant concedes that he did not object to the judge’s

remarks of which he now complains, but he argues that no objection was required to preserve

this kind of error. The State disagrees and argues that appellant waived any error by failing to

object.

          “Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d

530, 532 (Tex. Crim. App. 2009) (footnote omitted). If an issue has not been preserved for

appeal, we should not address its merits. Id.; see also TEX. R. APP. P. 33.1(a). Appellant argues

that the court of criminal appeals has recognized an exception to this rule for a trial judge’s

comments on the weight of the evidence. Appellant relies specifically on the following sentence

in Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012): “We conclude that failure to

preserve error is not a proper basis for the court of appeals to decline to address whether the trial

court improperly commented on the weight of the evidence.” But as the State points out, the

issue in Kirsch was whether the jury charge contained a comment on the weight of the evidence

in the jury charge, and objection is not necessary to preserve jury-charge error. Indeed, the

Kirsch court recognized this very point in the same paragraph where the sentence relied on by

appellant appears:

          However, all alleged jury-charge error must be considered on appellate review
          regardless of preservation in the trial court. Appellate review of purported error
          in a jury charge involves a two-step process. First, we determine whether the jury
          instruction is erroneous. Second, if error occurred, then an appellate court must
          analyze that error for harm. The issue of error preservation is not relevant until
          harm is assessed because the degree of harm required for reversal depends on
          whether the error was preserved. We conclude that failure to preserve error is not
          a proper basis for the court of appeals to decline to address whether the trial court
          improperly commented on the weight of the evidence.

Id. (emphasis added, citations and footnote omitted).




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         Outside the context of the jury charge, the courts of appeals have consistently said that a

party must object to preserve an argument that a trial judge’s statement before a jury constitutes

an erroneous comment on the weight of the evidence. See, e.g., Brown v. State, 333 S.W.3d 606,

614 (Tex. App.—Dallas 2009, no pet.); Williams v. State, 191 S.W.3d 242, 251 (Tex. App.—

Austin 2006, no pet.); Davis v. State, 177 S.W.3d 355, 362–64 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (en banc). We conclude that Kirsch did not change this rule for comments on the

weight of the evidence made outside the jury-charge context.

         We overrule appellant’s second point of error because it was not preserved in the trial

court.

                                        III. CONCLUSION

         For the foregoing reasons we affirm the trial court’s judgment.




                                                      /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE



Do not publish
TEX. R. APP. P. 47.2(b)
111679F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

JORGE ARREDONDO, Appellant                         On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-11-01679-CR        V.                       Trial Court Cause No. F09-56346-K.
                                                   Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 12, 2013




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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