








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



 Keller, 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"
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Do not publish
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).
3.   Id. at 649-52.
