



99-00858 Breckenridge v State of Texas dissenting opinion.wpd



DISSENTING OPINION
No. 04-99-00858-CR
Stephanie BRECKENRIDGE,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 8500
Honorable George Thurmond, Judge Presiding
Opinion by: Tom Rickhoff, Justice
Dissenting opinion by: Phil Hardberger, Chief Justice
Sitting:	Phil Hardberger, Chief Justice
		Tom Rickhoff, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:	October 25, 2000
	The majority holds that the trial court did not abuse its discretion in submitting a definition
of "genitals" or "genitalia" in the jury charge.  Because the term is not statutorily defined, I believe
the trial court erred in submitting the definition, and I respectfully dissent.
	The general rule in criminal law regarding when definitions should be submitted to a jury is
well-established.  If a term or word is statutorily defined, the trial court must submit the statutory
definition to the jury.  See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986)
(statutorily defined word must be included in the charge as part of the law applicable to the case);
Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref'd) (statutory definition should
be submitted).  If a term is not statutorily defined, whether a trial court is obligated 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 that meaning.  See Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim.
App. 1983); Phillips v. State, 597 S.W.2d 929, 937 (Tex. Crim. App. 1980).  Terms that are not
statutorily defined are typically to be understood as ordinary usage allows, and jurors are presumed
to know and apply the common and ordinary meaning.  See Medford v. State, 13 S.W.3d 769, 771-72
(Tex. Crim. App. 2000); Davis v. State, 949 S.W.2d 28, 29 (Tex. App.--San Antonio 1997, no pet.).
As a result, if a word is not statutorily defined, the trial court is not required to define it.  See
Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996); Davis, 949 S.W.2d at 29. 
	Under this general rule of law, if Breckenridge had requested that the trial court define the
term "genitals" or "genitalia," the trial court would not have erred in refusing the request.  See
Martinez, 924 S.W.2d at 698; Davis, 949 S.W.2d at 29.  The term "genitals" or "genitalia" has a
common meaning, so no definition would be required.  The question presented in this case, however,
is the opposite of the question resolved by the general rule of law.  We know that a trial court is not
required to define a term that has a common meaning, but what if the trial court does?
	In analyzing this issue, I would start with the proposition that "[l]anguage that is within the
comprehension of persons of ordinary intelligence can seldom be made plainer by further defining or
refining."  Toney v. State, 3 S.W.3d 199, 206 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd)
(quoting Buel v. State, 104 Wis. 132, 80 N.W. 78, 85 (1899)).  What is the effect of providing a
definition under those circumstances?  I believe such a definition should be given the same effect as
a surplus instruction or definition in civil cases.  In civil cases, trial courts are instructed not to burden
the jury with surplus instructions even if the instruction is a correct statement of the law.  See Acord
v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).  Surplus instructions are treated as
impermissible comments that tilt or nudge the jury one way or the other.  See Lemos v. Montez, 680
S.W.2d 798, 801 (Tex. 1984).
	In this case, Breckenridge's entire defense was centered on whether the jury understood the
term "genitals" or "genitalia" as including pubic hair.  The legislature, in enacting the criminal statute,
chose not to define this term.  A jury is entirely capable of deciding whether "genitals" or "genitalia"
includes pubic hair.  The jury should have been allowed to do so.  The instruction caused harm for
the following reasons.  Most of the witnesses testified that they saw "pubic hair."  By tailoring the
instruction to the testimony, nothing was left for the jury to decide.  The trial court had, in effect,
directed the verdict.  At the very least, the trial court's definition tilted or nudged the jury toward
conviction.  This is harmful error.
	Words, phrases, and terms used in the Penal Code should be taken and understood in their
ordinary meaning in common language, except where legislatively defined.  Neumuller v. State, 953
S.W.2d 502, 511 (Tex. App.--El Paso 1997, pet. ref'd).  Trial courts should not be involved in the
business of redefining words used in an ordinary sense by the Texas Legislature.  Id.  If the Texas
Legislature believed that the term "genitals" or "genitalia" should be given a specific meaning, it
would have provided one.  
	In a recent decision, the Texas Court of Criminal Appeals indicated that providing definitions
that are not Constitutionally or statutorily mandated is ill-advised.  See Paulson v. State, 2000 WL
1468423, at *3 (Tex. Crim. App. Oct. 4, 2000).  The definition provided by the trial court in this case
was not statutorily mandated, and the term has a commonly understood meaning.  I would hold that
the trial court erred in providing a definition instructing the jury that pubic hair constituted "genitals"
or "genitalia."
							PHIL HARDBERGER, 
							CHIEF JUSTICE
PUBLISH
