                                                                                   PD-0738-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                  Transmitted 9/3/2015 9:25:36 AM
September 3, 2015                                                   Accepted 9/3/2015 9:37:31 AM
                                                                                   ABEL ACOSTA
                            No. PD-0738-14                                                 CLERK


                                IN THE
                    TEXAS COURT OF CRIMINAL APPEALS

                        THE STATE OF TEXAS,
                            PETITIONER,
                                    v.
                           JOSEPH GREEN,
                            RESPONDENT.


                        ON PDR FROM THE FOURTH
                           COURT OF APPEALS




      AMICUS CURIAE BRIEF BY DISTRICT ATTORNEY FOR THE
               105TH JUDICIAL DISTRICT OF TEXAS




                               Douglas K. Norman
                               State Bar No. 15078900
                               Assistant District Attorney
                               105th Judicial District of Texas
                               901 Leopard, Room 206
                               Corpus Christi, Texas 78401
                               (361) 888-0410
                               (361) 888-0399 (fax)
                               douglas.norman@nuecesco.com
                               Attorney for Amicus Curiae
     STATEMENT OF COMPLIANCE WITH TEX. R. APP. P. 11

      The present amicus curiae brief is filed by the District Attorney’s

Office for the 105th Judicial District of Texas, in accordance with the

requirements of Texas Rule of Appellate Procedure 11. No fee has been

paid or will be paid for the preparation of this brief. The certificate of

service attached to the back page of this brief certifies that copies have been

mailed to all parties.




                                       i
                                   TABLE OF CONTENTS

STATEMENT OF COMPLIANCE WITH TEX. R. APP. P. 11 .................... i

INDEX OF AUTHORITIES ......................................................................... iii
PRELIMINARY STATEMENT .....................................................................1
ARGUMENT ...................................................................................................2

The Fourth Court of Appeals erred in concluding that the trial court
improperly defined the terms “penetration” and “female sexual organ”
in the jury charge on aggravated sexual assault. ........................................2

         I. Proper Jury Charge Definitions. ....................................................2
               A. Technical Terms......................................................................3
               B. Arbitrary Application..............................................................5

         II. Sexual Assault Terms. ....................................................................5
                A. Legal History. .........................................................................6
                B. Lack of “Common Parlance” Definition. ..............................8
                C. Policy Considerations. ...........................................................9

CONCLUSION ............................................................................................. 11
RULE 9.4 (i) CERTIFICATION .................................................................. 11
CERTIFICATE OF SERVICE ..................................................................... 12




                                                     ii
                                   INDEX OF AUTHORITIES

                                                      Cases

Ball v. State, 163 Tex. Crim. 214, 289 S.W.2d 926 (1956).............................7

Capps v. State, 171 Tex.Crim. 579, 352 S.W.2d 833 (1962). .........................2

Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013). ............................ 2-4

Clark v. People, 224 Ill. 554, 79 N.E. 941. .....................................................8

Clark v. State, 558 S.W.2d 887 (Tex. Crim. App. 1977). ...............................7

Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012). .............................6

Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995)..............................2

Flannery v. State, 135 Tex. Crim. 235, 117 S.W.2d 1111 (1938)...................8

Green v. State, 434 S.W.3d 734 (Tex. App.—San Antonio 2014, pet.
granted). ...........................................................................................................6

Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012). .......................... 2-5

Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639 (Tex. Civ. App.-Dallas
1976, writ ref'd n.r.e.). .....................................................................................4

Lynch v. State, 150 Tex. Crim. 57, 199 S.W.2d 780 (1947). ..........................7

Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000).......................... 2-5

Mirick v. State, 83 Tex. Crim. 388, 204 S.W. 222 (1918).......................... 7, 8

State v. Nash, 83 N.H. 536, 145 A. 262. ..........................................................7

Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426 (1952).........................7

Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1983). .............................3

                                                         iii
Sanders v. State, 127 Tex. Crim. 55, 75 S.W.2d 116 (1934). .........................7

Sherbert v. State, 531 S.W.2d 636 (Tex. Crim. App. 1976)............................7

Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Examiners,
254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied). ...............................4

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

Watkins v. State, 78 Tex. Crim. 65, 180 S.W. 116 (1915). .............................7
                                         Statutes & Rules
Tex. Gov't Code § 311.011. .............................................................................3

Tex. Pen. Code § 1.05. .....................................................................................3

Tex. Pen. Code § 21.11. ................................................................................ 10

Tex. Pen. Code § 22.01. ................................................................................ 10

Tex. Pen. Code § 22.011. .................................................................................5

Tex. Pen. Code § 22.021. .......................................................................... 5, 10

Tex. Code Crim. Proc. art. 36.13. ...................................................................9

Tex. Code Crim. Proc. art. 36.14. ....................................................................2

The Penal Code of 1925, Art. 1183. ...............................................................7

1 Wharton's Crim. Law (11th Ed.) § 697. .......................................................8

10 Encyc. of Ev. p. 580. ...................................................................................8

2 Bishop's New Crim. Law, § 1132. ................................................................8




                                                     iv
                            NO. PD-0738-14
               (Appellate Court Cause No. 04-12-00830-CR)
THE STATE OF TEXAS,                § IN THE
         Petitioner,               §
                                   §
V.                                 § COURT OF CRIMINAL APPEALS
                                   §
JOSEPH GREEN,                      §
         Respondent.               § OF TEXAS

                             PETITIONER’S BRIEF

TO THE HONORABLE COURT OF CRIMINAL APPEALS:
                      PRELIMINARY STATEMENT

      The District Attorney for the 105th Judicial District of Texas has a

special interest in the resolution of this case because of an aggravated sexual

assault case with similar issues from the 214th District Court of Nueces

County, which is now pending before the Thirteenth Court of Appeals as

Victor Sanchez v. State of Texas, No. 13-14-00440-CR (Tex. App.—Corpus

Christi), and in which the appellant has raised a similar challenge to the trial

court’s definition in the jury charge of the terms “penetration” and “sexual

organ.”




                                       1
                               ARGUMENT

      The Fourth Court of Appeals erred in concluding that the trial
court improperly defined the terms “penetration” and “female sexual
organ” in the jury charge on aggravated sexual assault.

                    I. Proper Jury Charge Definitions.

      The trial court must instruct the jury on statutorily defined terms as

the law applicable to the case. Celis v. State, 416 S.W.3d 419, 433 (Tex.

Crim. App. 2013) (citing Tex. Code Crim. Proc. art. 36.14). By contrast, it

is generally impermissible to instruct on terms not statutorily defined, and

the trial court instead must permit the jury to construe them according to the

rules of grammar and common usage. Celis, 416 S.W.3d at 433 (citing Tex.

Gov't Code § 311.011 and Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.

App. 2012)). Such words are to be understood as ordinary usage allows and

jurors may freely read them to have any meaning which is acceptable in

common parlance. See Kirsch, 357 S.W.3d at 650; Medford v. State, 13

S.W.3d 769, 771–72 (Tex. Crim. App. 2000); Denton v. State, 911 S.W.2d

388, 390 (Tex. Crim. App. 1995); Vernon v. State, 841 S.W.2d 407 (Tex.

Crim. App. 1992). The trial court is not required, or allowed, to define them

in the jury charge because they are “commonly and ordinarily understood by

people generally.” Capps v. State, 171 Tex.Crim. 579, 352 S.W.2d 833, 835

(1962); see also Kirsch, 357 S.W.3d at 650 (citing Capps).

                                      2
        To that end, the Court of Criminal Appeals has stated that, “[w]here

there is no statutory definition of a term, the question of trial court's

obligation to define the term depends on whether the term has such a

common and ordinary meaning that jurors can be fairly presumed to know

and apply such meaning.” Russell v. State, 665 S.W.2d 771, 780 (Tex.

Crim. App. 1983). In other words, no definition is required or allowed

“when   such word is used in its ordinary sense, and it is easily comprehended

by everyone.” Id. at 780.

                              A. Technical Terms.

        However, a trial court may define a statutorily undefined term that has

an established legal definition or that has acquired a technical meaning that

deviates from its meaning in common parlance. Celis, 416 S.W.3d at 433

(citing Medford, 13 S.W.3d at 771–72 and Tex. Gov't Code § 311.011(b)).

The Code Construction Act provides that “[w]ords and phrases that have

acquired a technical or particular meaning, whether by legislative definition

or otherwise, shall be construed accordingly.” Tex. Gov't Code § 311.011

(b); see also Tex. Pen. Code § 1.05 (b) (applying this provision of the Code

Construction Act to the Penal Code).

        Terms which have a known and established legal meaning, or which

have acquired a peculiar and appropriate meaning in the law, as where the


                                       3
words used have a well-known common law meaning, are considered as

having been used in their technical sense. Kirsch, 357 S.W.3d at 650 (citing

Medford, 13 S.W.3d at 772).

      In Celis, for example, the Court of Criminal Appeals found that, for

purposes of practicing law, the term “in good standing” with the State Bar

was a technical term because it has acquired a peculiar and appropriate

meaning in the law. 416 S.W.3d at 433. In Kirsch, however, the Court

refused to allow a charge definition of “operate” in a DWI case because of

the absence of any controlling case law dictating any particular definition of

“operate.” 357 S.W.3d at 648.

      Specifically, with regard to anatomical terms that might be commonly

understood in general, but that have a special meaning in the context in

which they are used in a statute, such as the term “foot” as used in defining

the scope of the practice of podiatry, the courts have interpreted it as a

technical term and looked to medical definitions. See Texas Orthopaedic

Ass'n v. Texas State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714, 720-

21 (Tex. App.—Austin 2008, pet. denied); see also Lloyd A. Fry Roofing

Co. v. State, 541 S.W.2d 639, 642–43 (Tex. Civ. App.-Dallas 1976, writ

ref'd n.r.e.) (explaining that when a statutory term has technical meaning,

court will look to the particular art, science, or trade from which it was taken


                                       4
to ascertain its meaning).

                             B. Arbitrary Application.

      In deciding which terms are common and understandable without

definition in the charge, and which are technical terms requiring definition,

the Court of Criminal Appeals also takes into consideration the risk “that

jurors may arbitrarily apply an inaccurate definition to the term,” and

whether “an express definition is required to assure a fair understanding of

the evidence.”    Kirsch, 357 S.W.3d at 650.        In Medford, the Court of

Criminal Appeals stated:

      “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. Justice would be better
      served, and more consistently applied, if jurors were provided a
      precise, uniform definition to guide their determination whether the
      particular circumstances at issue constituted a completed arrest.

Id. at 772.

                           II. Sexual Assault Terms.

      The present sexual assault and aggravated sexual assault statutes

criminalize, in pertinent part, the “penetration” of, or “contact” with, the

“sexual organ” of the victim in a variety of different ways specified under

the statutes. See Tex. Pen. Code § 22.011 (a) & Tex. Pen. Code § 22.021 (a)

(Added by Acts 1983, 68th Leg., p. 5312, ch. 977, § 3, eff. Sept. 1, 1983).

      With little analysis, the San Antonio Court of Appeals held that

                                         5
definitions of “female sexual organ” and “penetration” were improperly

included in the jury charge and constituted an improper comment on the

weight of the evidence. Green v. State, 434 S.W.3d 734, 738 (Tex. App.—

San Antonio 2014, pet. granted). The State would argue that the Green

opinion, which is presently under review by this Court, is wrong.

      The terms in question are clearly technical ones with a long history in

Texas law, they lack common definition or consensus as to meaning in the

legal context of a sexual offense, and a failure to define them in the charge

would create a real and substantial danger of arbitrary results.

                               A. Legal History.

      The Court of Criminal Appeals has recently stated that “penetration

occurs when there is tactile contact beneath the fold of complainant's

external genitalia,” and that “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

therefore constitutes penetration in the context of sexual assault.” Cornet v.

State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) (citations omitted).

This is consistent with a long history of similar definitions of penetration

with regard to the present sexual assault statutes and prior rape statutes

criminalizing essentially the same conduct under the guise of “carnal


                                       6
knowledge.” 1

      In spite of significant statutory changes, substituting sexual

intercourse and various more specific acts of contact or penetration of the

female sexual organ for the prior term “carnal knowledge,” Texas cases have

consistently retained the concept that penetration, however slight, is

sufficient, and that penetration beneath the folds of the outer labia or vulva is

enough to show a rape or sexual assault. See Clark v. State, 558 S.W.2d

887, 889 (Tex. Crim. App. 1977); Sherbert v. State, 531 S.W.2d 636, 637

(Tex. Crim. App. 1976); Ball v. State, 163 Tex. Crim. 214, 217, 289 S.W.2d

926, 928 (1956); Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426

(1952); Lynch v. State, 150 Tex. Crim. 57, 58, 199 S.W.2d 780 (1947);

Sanders v. State, 127 Tex. Crim. 55, 58, 75 S.W.2d 116, 117 (1934); Mirick

v. State, 83 Tex. Crim. 388, 393, 204 S.W. 222, 225 (1918); Watkins v.

State, 78 Tex. Crim. 65, 66, 180 S.W. 116, 117 (1915). Some Court of

Criminal Appeals cases even cite cases from other states and nationally

recognized treatises employing the same concepts concerning the definition

of rape and sexual assault. See Ball, 289 S.W.2d at 928 (citing State v.


1
 The Penal Code of 1925 provided, in pertinent part, that “Rape is the
carnal knowledge of a woman without her consent obtained by
force, threats or fraud ….” Art. 1183 (available at Texas State Law
Library,                   http://www.sll.texas.gov/assets/pdf/historical-
codes/1925/1925pen5.pdf).
                                        7
Nash, 83 N.H. 536, 145 A. 262, and Clark v. People, 224 Ill. 554, 79 N.E.

941) and Mirick, 204 S.W. at 225 (citing 1 Wharton's Crim. Law (11th Ed.)

§ 697; 10 Encyc. of Ev. p. 580; 2 Bishop's New Crim. Law, § 1132).

      Accordingly, the Court of Criminal Appeals long ago approved of the

following jury instruction in a rape case:

      You are further instructed that the slightest penetration of the body of
      the female by the sexual organ of the male is sufficient; it is
      unnecessary that the penetration should be perfect; nor that there
      should be an entering of the vagina or rupture of the hymen; the
      entering of the vulva or labia is sufficient.

Flannery v. State, 135 Tex. Crim. 235, 240-41, 117 S.W.2d 1111, 1114-15

(1938).

                 B. Lack of “Common Parlance” Definition.

      The “penetration of the female sexual organ,” involves subtle

distinctions that are irrelevant to acts of love and that only come into play in

connection with criminal conduct. Lovers certainly do not speak of their

acts of affection in these terms, nor do they draw the sort of distinctions

involving the boundaries of the organs in question or what does or does not

constitute penetration. Such technical distinctions only come into play in the

context of a criminal offense or, to some degree, in the equally technical and

specialized context of medical science. Accordingly, it would seem unlikely

that the average juror would have had occasion to discuss or consider what


                                       8
amounts to penetration of the female sexual organ outside of the trial at

issue.

                           C. Policy Considerations.

         The question of what words to judicially define and what words to

leave for the jury itself to define within a range of common meanings boils

down to one of whether that definition falls on the side of a legal issue

within the realm of the courts, or a factual issue within the realm of the jury.

See Tex. Crim. Proc. Code art. 36.13 (“the jury is the exclusive judge of the

facts, but it is bound to receive the law from the court and be governed

thereby”). In other words, did the legislature intend to allow the jury some

latitude to decide for itself whether to employ a more, or less, restrictive

definition to the particular facts and circumstances under consideration. Or,

did the legislature intend to incorporate a specialized legal meaning for the

term which the jury would be bound to follow. The answer to that question

is clear when the legislature itself defines the term, but less so when the term

is left undefined.

         Presumably, part of the justification for leaving the jury to define

common terms is to allow them to bring all the facts of the case to bear on

those definitions in order to reach a just result. For example, refusing to

bind the jury to any particular definition of “operate” for purposes of a DWI


                                       9
charge gives the jury leeway to consider the manner and extent to which the

defendant’s actions, under the unique facts of the case in question, actually

placed other drivers in danger in a manner that our DWI laws are meant to

combat. However, in cases of sexual assault or indecency, the surrounding

facts could have little practical impact in determining whether the touching

in question amounted to penetration or contact with a sexual organ of the

nature that the legislature intended to punish. Touching or breaking the fold

in one case is about the same as touching or breaking the fold in any other,

and it is hard to find justification for disparate treatment of the same acts

based on arbitrarily allowing one jury to define contact or penetration in one

manner and another jury to define it in a different manner.

      Moreover, differing definitions of penetration and the extent of the

“female sexual organ” may mean the difference between 25 years to life for

an aggravated sexual assault of a child, Tex. Pen. Code § 22.021 (f) (1), a

second-degree indecency with a child by sexual contact, Tex. Pen. Code §

21.11 (d), and possibly only a Class C misdemeanor assault by offensive

contact. Tex. Pen. Code § 22.01 (c).

      For all of these reasons, the trial court properly defined the terms in

question in the jury charge.




                                       10
                               CONCLUSION

      The District Attorney’s Office for the 105th Judicial District of Texas

submits the foregoing Amicus Curiae Brief for the Court’s consideration in

the present case.

                                      .




                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 2,171.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman

                                      11
                     CERTIFICATE OF SERVICE

      This is to certify that copies of this brief were e-mailed on September

3, 2015, to the attorney for Mr. Green, Mr. Tomas Ramirez, the attorney for

the State, Mr. Edward F. Shaughnessy, III, and the State Prosecuting

Attorney.



                               /s/Douglas K. Norman
                               ___________________
                               Douglas K. Norman




                                     12
