                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-11-00215-CR
        ______________________________


      DARRYL WAYLON SHARP, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 296th Judicial District Court
                Collin County, Texas
          Trial Court No. 429-81859-09




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION

        Darryl Waylon Sharp stands convicted, by a Collin County1 jury, of the offense of sexual

assault2 and has been sentenced to twenty years‘ imprisonment and a $10,000.00 fine. Sharp

appeals his conviction on a single ground, that the trial court, when defining ―intentionally‖ and

―knowingly‖ for the jury, erred in including language relating to the nature of the conduct. We

affirm the trial court‘s judgment, because sexual assault is a nature-of-conduct offense.

        Our review of error in this jury charge involves a two-step process. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.

App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we

determine whether error occurred, and then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S. W.2d at 731–32.

        The trial court‘s charge informed, ―Our law provides that a person commits the offense of

Sexual Assault if the person intentionally or knowingly causes the penetration of the sexual

organ of another person by any means, without that person‘s consent.‖ The following definitions

of intentionally and knowingly were included:

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

1
 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue.
See TEX. R. APP. P. 41.3.
2
 The jury acquitted Sharp of aggravated sexual assault and found him guilty of the lesser included offense of sexual
assault.


                                                         2
         A person acts knowingly or with knowledge, with respect to the nature of his
         conduct or to circumstances surrounding his conduct when he is aware of the
         nature of his conduct or that the circumstances exist. 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.

         Sharp‘s trial counsel objected to the inclusion of the instructions because, ―[w]ell, we are

looking for an instruction that uses the result-oriented portions of the mental states of

intentionally and knowingly.‖ Counsel wanted the court to ―basically, take out ‗or desire to

engage in the conduct‘‖ because the ―[c]harge would authorize a conviction on simply engaging

in the conduct alleged as opposed to the result alleged.‖ Sharp‘s appellate brief argues that the

―Aggravated Sexual Assault under which Appellant was originally indicted and tried is a ‗result

oriented crime,‘‖ and complains that inclusion of language relating to the nature of the conduct

was error.

         ―Sex offenses are . . . nature of conduct crimes.‖ Young v. State, 341 S.W.3d 417, 423

n.20 (Tex. 2011) (quoting Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008)); Vick

v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999) (Aggravated sexual assault is a ―conduct-

oriented offense in which the legislature criminalized very specific conduct of several different

types.‖); Mathonican v. State, 194 S.W.3d 59, 64 (Tex. App.—Texarkana 2006, no pet.) (sexual

assault is conduct-oriented offense). Accordingly, the trial court properly refused to remove the

nature-of-conduct language from the challenged definitions.3


3
 It is error not to limit the definitions in the jury charge to the conduct element or elements of the offense to which
they apply. Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Cook v. State, 884 S.W.2d 485, 491
(Tex. Crim. App. 1994); Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.). Both at trial and on
appeal, Sharp consistently argued only that the inclusion of the nature-of-conduct language was erroneous. Sharp
did not ask this Court to review the trial court‘s failure to limit the jury charge by removing the result of conduct

                                                          3
        We affirm the trial court‘s judgment.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:          July 5, 2012
Date Decided:            July 17, 2012

Do Not Publish




language. Had he done so, we could have addressed this question pursuant to Almanza. As it stands, we decline to
address sua sponte the issue of whether inclusion of the result-of-conduct language was erroneous.

                                                       4
