Green, Joseph Lester ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0738-14
JOSEPH LESTER GREEN, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
MEDINA COUNTY
A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J., M EYERS,
J OHNSON, K EASLER, Y EARY , and N EWELL, JJ., joined. R ICHARDSON, J., filed a
dissenting opinion in which H ERVEY, J., joined.
OPINION
In this opinion, we review the holding of the court of appeals reversing the conviction
of Joseph Lester Green, appellant, for aggravated sexual assault of a child based on its
conclusion that the trial court’s instructions to the jury were erroneous and harmful to
appellant. See Green v. State, 434 S.W.3d 734, 741 (Tex. App.—San Antonio 2014); T EX.
P ENAL C ODE A NN. § 22.021(a)(1)(B)(i) (West 2014). The State’s sole ground in its petition
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for discretionary review asserts that the “court of appeals erred in holding that, by defining
the terms ‘penetration’ and ‘female sexual organ’ in the instructions to the jury at the
conclusion of the evidentiary portion of the guilt phase of the trial, the trial court committed
reversible error.” Although we agree with the court of appeals’s error analysis in that the
trial court should not have defined those terms that are undefined in the applicable statute,
we disagree that appellant was harmed by the erroneous instructions. We, therefore, sustain
in part the State’s sole ground that asserts that the court of appeals erred by finding reversible
error in the jury instructions. We reverse the judgment of the court of appeals and remand
this case to that court to address appellant’s remaining points of error.
I. Background
After the complainant’s father, appellant, was released from prison, the complainant,
who was raised by her grandparents, began to have overnight visits with him. At first,
appellant slept on the sofa while the complainant slept in his bed, but later, appellant began
sleeping in the same bed with her. During her last visit with him, the complainant, who was
twelve years old at the time, awoke to find appellant’s hand underneath her clothes and
touching her genital area and breast. The complainant started crying, got up, turned on the
light, and demanded that appellant take her home. When appellant asked her what was
wrong, the complainant told him that she was upset “because he touched her.” In response
to that, appellant said, “Well, I can go to jail for this serious accusation.” After appellant
took her home, the complainant immediately reported the touching to a family member. The
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next day, the complainant’s grandparents notified the police, and the complainant was taken
to the hospital for a sexual-assault examination, which did not reveal any physical trauma.
At appellant’s trial for aggravated sexual assault, the complainant specifically testified
about how appellant touched her. She said that his hand was inside her shorts, that his hand
rubbed the lips of her vagina, and that his hand went “in between them.” The prosecutor
handed the complainant a picture and asked her to draw how appellant had touched her. The
complainant drew a “circular pattern.” She also showed on the picture that she understood
what the lips of the vagina were and confirmed that appellant had touched her “in between
that area.” The complainant acknowledged that, previously, when she was asked by the CPS
worker and sexual assault nurse examiner whether she had been penetrated, she had
answered “No,” explaining that “nothing went in” her and that it “was just on the outside
touching.” On cross-examination by defense counsel, she was specifically asked about the
inconsistencies in her prior statements regarding penetration. Counsel then asked, “So as we
sit here today is it your testimony then that your dad did not penetrate you?” She responded,
“You’re correct.” She explained that she believed that penetration means “like insertion,”
“to insert something,” or “like [ ] anything that passed my skin or anything.”
Deputy Adam Hernandez with the Bexar County Sheriff’s Office testified that he was
the patrolman who initially responded to investigate this case. He stated that, in his interview
of the complainant, she told him that appellant’s “hand [was] inside her panties touching her
vagina,” but she never told him that appellant penetrated or went inside her vagina. The
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deputy testified that he explained to the complainant what penetration meant by stating,
I told her, “This is your wall of your private area.” And I go, “This is
penetration. This is around here.” She told me he just went around the vagina.
That’s what she explained to me, and that’s the way I understood it.
Deputy Hernandez further testified that the complainant said that appellant’s finger went
“around the wall,” indicating that the “wall is the vagina.” He further stated, “She said he
tried sticking it in there but I don’t know if he probably couldn’t do it or something.”
Sergeant Jack Gonzalez with the Medina County Sheriff’s Office conducted the
follow-up investigation. He testified that he was present in another room watching on a
closed-circuit television while a forensic interviewer questioned the complainant. According
to Sergeant Gonzalez, the complainant said that appellant’s hand was under her panties
touching her “cooch,” which he understood to mean her vagina. He further recalled that the
complainant said that appellant tried to “stick a finger into her vagina.” Sergeant Gonzalez
indicated that penetration of the female sexual organ includes having a finger between the
lips of the vagina, but it does not necessarily require insertion into the vaginal canal. He
explained that he initially charged appellant with indecency with a child by contact rather
than aggravated sexual assault of a child because he felt more certain as to appellant’s guilt
of that offense.
Cynthia Garcia was the sexual assault nurse examiner who examined the complainant
and determined that no evidence of physical trauma existed. Garcia’s report included quotes
from her questions to the complainant and the complainant’s responses. Garcia asked, “So
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did his finger go inside past the lip part?” The complainant responded, “No.” Garcia
explained that she was referencing the “labia majora” when she used the term “lip part” and
that “it’s the outer part of the genital area.” She acknowledged that she did not ask the
complainant if anything went in between the lips and asked only if anything “went inside”
or “past.” She also did not give any further explanation or demonstrations about what
penetration of the female sexual organ meant, but indicated that, if the complainant had said
that “it went between the labia majora,” that would “be considered penetration.”
In his testimony, appellant denied any sexual touching of the complainant. Appellant
suggested that he was asleep and awoke to find the complainant crying as she claimed that
she had a “bad dream” that he had touched her. According to appellant, the complainant then
told him, “Dad you were touching me for real.” Appellant asked her, “What are you talking
about? What do you mean that I was touching you?” The complainant responded by saying
that she “just wanted to go home.” Appellant then took the complainant back to her
grandparents’ house. Appellant denied touching the complainant’s genital area or breasts,
and he suggested that the complainant had fabricated the incident.
After the conclusion of the evidence portion of the trial, the trial court discussed the
State’s request that definitions for “penetration” and “female sexual organ” be included in
the jury instructions. Appellant’s counsel objected that any such instructions would
constitute an improper comment on the weight of the evidence and were unauthorized by the
Code of Criminal Procedure. Counsel also objected to the substance of the trial court’s
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definition for “female sexual organ,” explaining that the definition would be “highly
confusing and highly misleading” to the jury because it was based on medical definitions,
whereas the statutory language had left the term undefined. After overruling defense
counsel’s objections, the trial court included the State’s requested instructions. The trial
court defined the meaning of the phrase “penetration of the female sexual organ” in the
context of the aggravated-sexual-assault statute.1 The trial court defined the word
“penetration,” as something that “occurs so long as contact with the female sexual organ
could reasonably be regarded by ordinary English speakers as more intrusive than contact
with the outer vaginal lips and is complete, however slight, if any[,]” and the instructions
specified that “[t]ouching beneath the fold of the external genitalia amounts to penetration
within the meaning of the aggravated sexual assault statute.” Similarly, the trial court
defined the term “female sexual organ,” as meaning “the entire female genitalia, including
both vagina and the vulva,” and the instructions specified that “‘[v]ulva’ is defined as the
external parts of the female sexual organs, including the labia majora, the labia minora, mons
veneris, clitoris, perineum, and the vestibule or entrance to the vagina.” The jury found
appellant guilty, and the trial court sentenced him to twenty-four years in prison.
On appeal, the court of appeals reversed appellant’s conviction on the basis that the
terms should have been left undefined, as in the Texas Penal Code, and the jury should have
been permitted to construe the terms according to the rules of grammar and common usage.
1
See TEX . PENAL CODE § 22.021(a)(1)(B)(i).
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See Green, 434 S.W.3d at 737-39. Relying primarily on this Court’s precedent in Kirsch v.
State, the court of appeals held that the inclusion of the challenged instructions constituted
an improper comment on the weight of the evidence by “focus[ing] the jury’s attention on
the specific type of evidence that would support a finding of the contested element of
penetration” of the female sexual organ. Id. at 737-38 (citing Kirsch v. State, 357 S.W.3d
645, 652 (Tex. Crim. App. 2012)). Noting that appellant had preserved his complaint about
the jury instructions, the court of appeals held that he suffered some harm from the error.
Id. at 739.
II. Analysis
Although we agree with the court of appeals that the trial court erred by including
definitions for the terms “penetration” and “female sexual organ” in its instructions to the
jury, we disagree that appellant was harmed by the error. We explain each of these
conclusions in turn below.
A. Trial Court Erred By Providing Definitions for Terms
The Code of Criminal Procedure requires that instructions to the jury be limited to
setting forth the law applicable to the case and that they not express any opinion as to the
weight of the evidence. See T EX. C ODE C RIM. P ROC. art. 36.14. Under Article 36.14, the
trial court is required to give the jury a written charge “setting forth the law applicable to the
case; not expressing any opinion as to the weight of the evidence, not summing up the
testimony, discussing the facts or using any argument in [its] charge calculated to arouse the
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sympathy or excite the passions of the jury.” Id.As a general matter, definitions for terms that are not statutorily defined are not
considered to be the “applicable law” under Article 36.14, and it is thus generally
impermissible for the trial court to define those terms in the jury instructions. See Kirsch,
357 S.W.3d at 651 (citing Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007));
Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013) (plurality op.) (“Non-statutory
instructions, even when they are neutral and relate to statutory offenses or defenses, generally
have no place in the charge.”); Walters, 247 S.W.3d at 214 (“Normally, if the instruction is
not derived from the code, it is not ‘applicable law.’”). Consistent with the terms of Article
36.14, we have explained that jurors should be permitted to “freely read [undefined] statutory
language to have any meaning which is acceptable in common parlance.” Kirsch, 357
S.W.3d at 650 (alteration in original) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex.
Crim. App. 1995)); see also Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App.
2000) (explaining that “terms not legislatively defined are typically to be understood as
ordinary usage allows, and jurors may thus give them any meaning which is acceptable in
common parlance”).
On the other hand, although it is generally impermissible to instruct on the meanings
of terms that are not statutorily defined, an exception to that general rule exists for “‘terms
which have a known and established legal meaning, or which have acquired a peculiar and
appropriate meaning in the law, as where the words used have a well-known common law
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meaning.’” Kirsch, 357 S.W.3d at 650 (quoting Medford, 13 S.W.3d at 772). Such terms are
“considered as having been used in their technical sense,” and, therefore, it is not error for
the trial court to include in its instructions “a precise, uniform definition” to guide the jury’s
deliberations. Medford, 13 S.W.3d at 772.
In assessing the propriety of the non-statutory instructions in this case, the court of
appeals held that the terms “penetration” and “female sexual organ” are common terms that
have not acquired a technical meaning, and it thus reasoned that those terms are to be
interpreted by the jury according to common usage. Green, 434 S.W.3d at 738. We agree
with this analysis. Consistent with this Court’s reasoning in Kirsch, we conclude that the
jury was free to assign those terms any meaning that is acceptable in common parlance, and
the trial court’s provision of non-statutory definitions instructing the jury to apply particular
definitions was improper. See Kirsch, 357 S.W.3d at 652. Furthermore, in response to the
State’s suggestion that the terms have acquired particular legal meanings in cases addressing
the sufficiency of the evidence, we observe that, “[a]lthough an appellate court may articulate
a definition of a statutorily undefined, common term in assessing the sufficiency of the
evidence . . . a trial court’s inclusion of that definition in a jury charge may constitute an
improper comment on the weight of the evidence.” Id. at 651. Having found no persuasive
authority to establish that the terms have acquired technical or particular legal meanings that
would apply in this context, we hold that the court of appeals correctly concluded that the
trial court’s instructions in this case were erroneous.
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B. Appellant Was Not Harmed By the Error in the Charge
After finding error, the court of appeals noted that appellant had objected to the
inclusion of the challenged instructions, and it determined that the erroneous instructions had
caused him “some harm.” Green, 434 S.W.3d at 738-39. In conducting its harm analysis,
the court of appeals explained that “there was conflicting testimony on the critical, and hotly
contested, question of whether [appellant] touched [the complainant’s] female sexual organ
only on the ‘outside’ or whether he touched her ‘beneath the fold of the external genitalia’
amounting to penetration of the female sexual organ.” Id. at 738. It further observed that this
“issue of whether penetration occurred—a question of fact for the jury to resolve—was the
focus of counsel’s questioning of the witnesses and closing arguments.” Id. Viewing the
erroneous instructions in the context of the entire jury charge, the court noted that the type
of error at issue—impinging on the jury’s fact-finding authority by focusing its attention on
a particular type of evidence—was an additional factor weighing in favor of a finding of
harm. Id. Based on this analysis, the court of appeals explained that it could not say with fair
assurance that the error did not have an injurious effect or influence in determining the jury’s
verdict, and it concluded that appellant’s conviction must be reversed. Id. at 738-39 (citing
Trevino v. State, 100 S.W.3d 232, 243 (Tex. Crim. App. 2003)).
Although we disagree with its application of the standard to the facts of this case, we
agree with the court of appeals that the “some harm” standard is appropriate in light of the
fact that appellant preserved his charge-error complaint. Almanza v. State, 686 S.W.2d 157,
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170 (Tex. Crim. App. 1985) (if error in the charge was the subject of a timely objection in
the trial court, “then reversal is required if the error is calculated to injure the rights of the
defendant, which means no more than that there must be some harm”). In reaching our
conclusion that appellant was not harmed, we consider (1) the jury charge as a whole; (2) the
arguments of counsel; and (3) the entirety of the evidence and any other relevant factors
present in the record. Id. at 171.
1. The Jury Charge as a Whole
In considering the jury charge as a whole, we conclude that this factor weighs against
a finding of harm. We explain below that, although the definitions of the terms were
extraneous, they accurately described the common meanings of the terms. Furthermore, to
the extent that they might have drawn the jury’s attention to particular evidence, the
definitions did not harm appellant because, as an element of the offense, the jury’s attention
would already have been focused on the meaning of the phrase “penetration of the sexual
organ,” and the instructions thus could not have harmfully impacted appellant on that basis.
The trial court defined the meaning of the phrase “penetration of the female sexual
organ” in the context of the aggravated-sexual-assault statute. The trial court provided the
following instruction on “penetration”:
One of the elements in this case is “penetration.” You are instructed that
penetration occurs so long as contact with the female sexual organ could
reasonably be regarded by ordinary English speakers as more intrusive than
contact with the outer vaginal lips and is complete, however slight, if any.
Touching beneath the fold of the external genitalia amounts to penetration
within the meaning of the aggravated sexual assault statute.
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Additionally, the trial court defined “female sexual organ” as follows:
The term “female sexual organ” means the entire female genitalia, including
both vagina and the vulva. Vulva is defined as the external parts of the female
sexual organs, including the labia majora, the labia minora, mons veneris,
clitoris, perineum, and the vestibule or entrance to the vagina.
The trial court’s instructions were consistent with this Court’s descriptions of the
common meaning of the phrase “penetration of the female sexual organ” in Vernon v. State,
841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992). In Vernon, this Court addressed what
would constitute penetration of the female sexual organ in the context of assessing the
sufficiency of the evidence to sustain a conviction for aggravated sexual assault. Id. at 409.
It began by observing that “[w]ords not specifically defined by the Legislature are to be
understood as ordinary usage allows, and jurors may thus freely read statutory language to
have any meaning which is acceptable in common parlance.” Id. Applying that concept to
the terms in the aggravated-sexual-assault statute, the Court stated that “‘penetrate’ may
mean ‘to enter into’ or ‘to pass through.’” Id. (quoting Webster’s Third New International
Dictionary, p. 1670 (Merriam-Webster 1981)). It continued,
Thus, in common parlance, mere contact with the outside of an object does not
amount to a penetration of it. But 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.
Consequently, it is not ungrammatical to describe Appellant’s touching of
complainant in this case as a penetration, so long as contact with the injured
part of her anatomy could reasonably be regarded by ordinary English speakers
as more intrusive than contact with her outer vaginal lips. For this reason, we
think that the phrase “penetration of the . . . female sexual organ” is fairly
susceptible of an understanding which includes the kind of touching proven in
this case.
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Id. at 409-10.2 The Court’s analysis in Vernon indicates that the trial court’s definitions in
this case conformed to the common meanings of the terms “penetration” and “female sexual
organ.” See id. As such, the instructions are “mild, neutral,” and describe “an obvious
common-sense proposition,” and thus they would not have impinged on the jury’s fact-
finding authority. Brown v. State, 122 S.W.3d 794, 803 (Tex. Crim. App. 2003).
Furthermore, we disagree with the court of appeals that the trial court’s instructions
impinged upon the jury’s fact-finding authority by focusing its attention on a particular type
of evidence. Because penetration of the complainant’s sexual organ was a critical element
of the offense, the jury was already focused on the evidence pertaining to penetration. The
totality of the record shows that the jury’s focus would have been on this element of the
offense regardless of the inclusion of the definitions, which were accurate under the law and
did not function to draw additional or undue attention to any particular evidence that might
weigh in favor of or against a finding of guilt. In this sense, this case is analogous to Brown,
in which we concluded that, although the trial court’s instruction that “intent or knowledge
may be inferred by acts done or words spoken” constituted an improper comment on the
weight of the evidence, the error was harmless in light of the “benign” nature of the
instruction. Id. at 803-04. In Brown, we reasoned that, although it was a disputed issue at
his trial for capital murder, Brown’s intent was already the focus of the jury’s deliberations
2
Although the aggravated-sexual-assault statute now refers to the “sexual organ” rather than
the “female sexual organ,” this Court has continued to refer to the “female sexual organ” when the
complainant is a female. See Arrington v. State, 451 S.W.3d 834, 836-38 (Tex. Crim. App. 2015);
Steadman v. State, 280 S.W.3d 242, 248 (Tex. Crim. App. 2009).
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and, therefore, “[t]he jury did not need any judicial instruction to focus its attention” on that
matter. Id. at 803 (observing that the “advocates focused the jury’s attention quite
competently on the disputed issue,” and thus the improper comment “was not, in any sense,
harmful”). Here, similarly, given that the extraneous instructions were neutral and benign
in the sense that they merely described the common meanings of the terms, and given that
the jury already would have been focused on the evidence of penetration in light of the fact
that it was an element of the offense, we do not find that the erroneous instructions
themselves weigh in favor of a finding of harm.
As further support for our conclusion that the trial court’s instructions were consistent
with the accurate and common meaning of the phrase “penetration of the female sexual
organ,” we note that the testimony from a police officer and SANE nurse each used these
definitions. In questioning Sergeant Gonzalez, the State asked whether it would constitute
penetration for appellant to place his finger “between the lips” of the complainant’s female
sexual organ, to which Sergeant Gonzalez answered, “Yes.” The State then asked, “Is there
a requirement that there be an insertion into the vaginal canal?” Sergeant Gonzalez
answered, “No.” Later, in questioning Nurse Garcia, the State similarly asked, “And you
being a SANE nurse, if a child had said, ‘Yes, it went between the labia majora,’ would that
be considered penetration?” Nurse Garcia answered, “Yes.” In closing arguments, the State,
addressing the evidence on penetration, said,
[Appellant] didn’t go all the way inside her. He doesn’t have to. To meet the
elements of an aggravated sexual assault of a child he doesn’t have to go all
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the way inside her. When you think of the word ‘penetration,’ you think all
the way inside. That was [the complainant’s] understanding. He didn’t go all
the way inside. He went between her labia majora[.]
Because the instructions were largely redundant of the information that was already before
the jury through these witnesses and the State’s argument, we conclude that this is an
additional consideration that weighs against a finding of harm. See Brown, 122 S.W.3d at
803 (concluding that erroneous instruction by trial court commenting on the weight of the
evidence was harmless; jury was already focused on “disputed issue” of defendant’s intent
in light of the arguments of counsel, which had used “exactly the same language as in the jury
charge to prove [their] point”). Although we recognize that the complainant and other
witnesses had their own subjective definitions for penetration, we cannot conclude that those
inaccurate definitions would be a basis for finding harm in this case, in which the definitions
were immaterial to appellant’s defensive theory that no inappropriate touching of any kind
occurred.
In addition, the trial court’s admonition to the jury to disregard any instruction that
might seem to indicate the judge’s opinion about the evidence or verdict weighs against a
finding of harm in this case. The court’s charge contained language instructing the jury that
it was
the exclusive judge[ ] of the facts proved, of the credibility of the witnesses
and of the weight to be given the testimony[,] but the law of the case you must
receive from the Court as contained in these instructions, and be governed
thereby. You must disregard any comment or statement made by the Court
during the trial or in these instructions which may seem to indicate an opinion
with respect to any fact, item of evidence or verdict to be reached in this case.
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No such indication was or is intended.
Even if the inclusion of the definitions arguably could be seen as the trial court asking the
jury to pay particular attention to that evidence, another portion of the trial court’s
instructions specifically told the jury to disregard anything in the instructions that might
appear to indicate the court’s opinion on the weight to assign any of the evidence, and the
inclusion of that curative instruction weighs against a finding of harm. See Marks v. State,
617 S.W.2d 250, 252 (Tex. Crim. App. 1981) (instruction by trial judge to disregard
comments made by him or her is generally sufficient to cure any error arising from his or her
statements); Aschbacher v. State, 61 S.W.3d 532, 539 (Tex. App.—San Antonio 2001) (pet.
ref’d) (same). In view of the jury charge as a whole, we cannot conclude that this factor
weighs in favor of a conclusion that the error was harmful, in the sense that it was calculated
to injure appellant’s rights. See Trevino, 100 S.W.3d at 243.
2. The Arguments of Counsel
Although it accurately observed that a focus of counsel’s arguments was on the
evidence with respect to whether penetration of the female sexual organ had occurred, the
court of appeals failed to consider that the arguments were aimed at the broader question of
the complainant’s credibility as a whole with respect to whether appellant was guilty or not
guilty of any sexual touching of the complainant, rather than at whether appellant was guilty
of aggravated sexual assault or was instead guilty of the lesser offense of indecency with a
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child.3 In light of appellant’s defensive theory that was focused on undermining the
complainant’s credibility by showing that no sexual touching of any kind had occurred, we
conclude that the record fails to reveal that appellant’s defense was affected by the inclusion
of the accurate definitions. We, therefore, conclude that this factor weighs against any
finding of harm.
A review of defense counsel’s arguments indicates that his contention that penetration
had not occurred was to show that the complainant was fabricating the entire incident. In
opening arguments, defense counsel informed the jury that this was a “he said/she said
scenario” that would pit the credibility of the complainant against the credibility of appellant.
Counsel stated, “[U]ltimately, the evidence is going to boil down to the credibility of that
child versus the credibility of her dad.” During closing arguments, defense counsel asserted
that the complainant was “not telling the truth,” and he further stated that, although the
prosecutor was going to “tell [the jurors] all day long that she’s credible” because “[t]hat’s
his job,” it was apparent that “[n]ot even [the prosecutor] believe[s] what that child said
beyond a reasonable doubt.” Defense counsel’s arguments that the complainant was
inconsistent as to whether penetration had occurred culminated in his statement, “That is
important because hanging on such a crucial area of this thing, the child is not telling the
truth. Where else is she not telling the truth?” As demonstrated through that succinct
3
See TEX . PENAL CODE § 21.11(a)(1), (c) (“A person commits an offense if, with a child
younger than 17 years of age, . . . the person: engages in sexual contact with the child[.]”; “sexual
contact” means “any touching by a person . . . of the anus, breast, or any part of the genitals of a
child” if “committed with the intent to arouse or gratify the sexual desire of any person[.]”).
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argument, appellant’s theory challenged the entire credibility of the complainant, and that
argument was unaffected by the inclusion of accurate definitions as to the common meaning
of the phrase penetration of the female sexual organ.
The remainder of counsel’s argument similarly challenged the complainant’s
credibility. Counsel focused on the lack of physical evidence in the case; the complainant’s
version of events leading up to the incident; and the fact that the complainant was a “troubled
child” who had “resentment to not only [appellant] but also to [her] mom for just not being
there for all those years when she was young.” Counsel told the jury that it would have to
make a decision based on “the credibility of her story and the credibility of [appellant’s]
story[.]”
Based on its assessment that the issue of whether penetration had occurred was the
“focus” of counsel’s questioning and closing arguments, the court of appeals concluded that
this factor weighed in favor of a finding of some harm. See Green, 434 S.W.3d at 739. We,
however, determine that the record demonstrates that counsel’s purpose in focusing on
penetration was to argue that the complainant’s story was lacking in credibility as to the
occurrence of any sexual contact, not to address the more specific points of whether the
alleged conduct, if proven, would constitute penetration of the female sexual organ within
the meaning of the aggravated-sexual-assault statute. Under these circumstances, the
erroneous instructions describing the common meanings of statutory terms would have had
no bearing on the likely success of appellant’s defensive strategy.
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We conclude that, to the extent that it focused on the evidence of penetration, defense
counsel’s argument sought an all-or-nothing outcome based on the jury’s finding that the
complainant’s testimony regarding sexual contact between her and appellant was wholly
fabricated. Defense counsel never argued that appellant was guilty of only some lesser
sexual offense based on the type of sexual contact that occurred. Because defense counsel’s
arguments and theory focused on establishing that the complainant fabricated the entire
sexual incident, we conclude that the record fails to reveal that appellant’s defensive strategy
was affected by the erroneous definitions. See Cornet v. State, 417 S.W.3d 446, 454-55 (Tex.
Crim. App. 2013) (rejecting Cornet’s claim that he was harmed by trial court’s omission of
medical-care-defense instruction from jury charge, in part, because it was “clear that the jury
believed the complainant and disbelieved [Cornet’s] claims that he was only touching the
complainant with his hand to provide medical care”; because the record “strongly indicate[d]
that the jury considered and rejected [Cornet’s] claim that his contact with the complainant
was for her medical care,” error was harmless).
3. The Entirety of the Evidence and Any Other Relevant Information
Examining the entirety of the record, we conclude that this factor also weighs against
a finding of harm. We disagree with the court of appeals’s determination that inclusion of
the definitions caused harm to appellant on the basis that the evidence was “hotly contested”
as to whether appellant penetrated the complainant’s female sexual organ. To the extent that
the parties disputed the evidence on the element of penetration, the focus of that dispute was
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aimed at the broader question of whether the complainant was credible in stating that
appellant had sexually touched her at all.
We note here that the complainant’s testimony was largely consistent in describing the
nature of the touching done by appellant, regardless of her apparent belief that there had been
no penetration of her female sexual organ, as she understood that phrase. She consistently
stated that appellant’s hand was “in the boxers that [she] was wearing”; that he “was rubbing
the lips . . . to [her] vagina” in a “circle”; and that he went in between the lips. The
complainant further testified that appellant “took his hand out and it sounded as if he either
smelled or licked his hand.” Although it is true that she varied in the particular terminology
that she used to describe appellant’s conduct, the complainant’s testimony was factually
consistent with respect to the type of touching that took place. Based on her subjective
understanding of the phrase, the complainant also consistently said that appellant had not
penetrated her female sexual organ.
Because the definitions supplied by the trial court were inconsistent with the
complainant’s testimony that appellant had not penetrated her female sexual organ as she
understood that phrase, the definitions supplied by the trial court actually conflicted with the
complainant’s testimony and thus could not have harmed appellant’s theory that the
complainant lacked credibility in this respect.
Although not mentioned by the court of appeals in its harm analysis, the trial court,
at the State’s request, included a jury instruction on the lesser-included offense of indecency
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with a child as an alternative to aggravated sexual assault of a child. See T EX. P ENAL C ODE
§§ 21.11(a)(1), (c), 22.021(a)(1)(B)(i). Because this was not his defensive theory at trial,
defense counsel objected to the inclusion of this instruction, stating, “This defense did not
prepare for a trial dealing with indecency. It did not do any voir dire . . . that it could have
done if the charge was indecency. . . . The defense was not asking for that in this case . . . .
The lesser included charge I believe denies my client [his] right to adequately and properly
prepare for a jury trial because this was not something that we were prepared to defend.”
Appellant’s objection to the inclusion of the lesser offense plainly shows that his defensive
theory did not turn on the particular definition of the phrase describing penetration of the
female sexual organ but was instead focused on an all-or-nothing strategy premised on an
assertion that no sexual touching of any kind occurred. Furthermore, appellant never
suggested at any point during the trial that the jury should find him guilty only of indecency
by sexual contact on the basis that he was guilty merely of touching that did not constitute
penetration of the female sexual organ.
Given that the central dispute at trial was as to the complainant’s credibility in
asserting that appellant had sexually touched her at all, as opposed to a factual dispute as to
the type or degree of touching alleged by the complainant, we conclude that appellant was
not harmed by the definitions under these circumstances. Finding no other relevant
information in the record, we conclude that, in view of the entirety of the record, the
erroneous inclusion of the accurate definitions did not harm appellant, in the sense that the
Green - 22
error was not calculated to injure his rights. See Almanza, 686 S.W.2d at 171.
III. Conclusion
Although it was error to define the words “female sexual organ” and “penetration,”
the definitions did not cause harm to appellant. We reverse the judgment of the court of
appeals and remand for consideration of appellant’s other appellate issues.
Delivered: December 16, 2015
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