            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1304-11



                         RICHARD NIETO TREVINO, Appellant

                                                v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                             BELL COUNTY

                K ELLER, P.J., delivered the opinion of the unanimous Court.


       Appellant was convicted of indecency with a child. On appeal, he complained that the trial

judge erred by including in the jury charge a definition of female genitalia. He contended that the

definition was a comment on the weight of the evidence. The court of appeals affirmed, concluding

that the definition was not a comment on the weight of the evidence.1 After the court of appeals had

issued its decision, we handed down Kirsch v. State,2 which held that defining the word “operate”


       1
         Trevino v. State, No. 07-11-00027-CR, 2011 Tex. App. LEXIS 5777 (Tex. App.–Amarillo
July 27, 2011) (not designated for publication).
       2
           357 S.W.3d 645 (Tex. Crim. App. 2012).
                                                                                   TREVINO — 2

in a DWI prosecution constituted an impermissible comment on the weight of the evidence.3

Because the court of appeals did not have the benefit of our opinion in Kirsch, we vacate the court

of appeals’s decision and remand the case to that court for reconsideration in light of Kirsch.



Delivered: May 2, 2012
Do not publish




       3
           Id. at 649-52.
