Richard Nieto Trevino v. State ( 2011 )

NO. 07-11-00027-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 27, 2011
RICHARD N. TREVINO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 426TH DISTRICT COURT OF BELL COUNTY;
NO. 65377; HONORABLE FANCY H. JEZEK, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Richard N. Trevino, was convicted of indecency with a child by
contact1 and sentenced to twenty years‘ imprisonment. On appeal from his conviction,
he complains that the trial court erred by including in its charge to the jury a definition of
female genitalia. Appellant maintains that the trial court‘s inclusion of this definition
constitutes an improper comment on the weight of the evidence because a witness had
testified to a substantially similar definition at trial. We will affirm.
1
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). In companion case,
Trevino v. State, 07-11-00026-CR, appellant appealed his conviction for aggravated
sexual assault of a child.
Factual and Procedural History
Because appellant does not challenge the sufficiency of the evidence to support
his conviction, we provide only so much of the factual background as is necessary to
provide a context and to address appellant‘s issue. When she was in sixth grade, V.H.
was the only passenger on the school bus that appellant drove. The two talked
regularly. After V.H. moved to a different bus route in the seventh grade, fifty-two-year-
old appellant made arrangements to take then thirteen-year-old V.H. to various extra-
curricular activities, making certain to take longer routes and to arrange stops so that
V.H. was either the last remaining or the only passenger on the bus. The two began to
talk regularly by phone and exchanged text messages and letters. Their relationship
eventually took on certain romantic characteristics.
In the spring of 2009, appellant drove V.H. to a newly-developed neighborhood,
parked the bus, and began kissing and touching her as he had done in the past. He
removed V.H.‘s pants and kissed and touched her ―genital area.‖ At a later encounter,
appellant once again removed her pants and penetrated her vagina with his penis for,
according to V.H., about fifteen seconds.
The State presented testimony from Heather Young, registered nurse and sexual
assault nurse examiner (SANE). In pertinent part and in reference to a diagram, Young
testified as follows:
The external structures, the first thing [you] have, this is called the – the
fatty outer lips of the – of the genitalia is called the labia majora. Okay.
That is where pubic hair grows. Okay.
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Also, part of the external genitalia is called the mons pubic – pubis. It is
the area up here. It is a fatty layer of tissue over the pubic bone that also
has pubic hair growth on it as well.
...
And I apologize. I did forget to mention the fatty outer lips which is the
labia majora, then you have the inner lip which is the labia minora, it‘s the
thin inner lip, as well.
Appellant lodged no objection to this testimony.
In its charge to the jury, the trial court included the following language:
The genitals or genitalia of a female consist of an internal group and an
external group. The internal group is situated within the pelvis and
consists of the ovaries, uterine tubes, uterus and vagina. The external
group is situated below and in front of the pubic arch and consists of the
mons pubis (the rounded mound in front of the joinder of the pubic bones
that becomes covered with hair at the time of puberty), the labia majora
and minora (longitudinal folds of skin at the opening of the female orifice)
and certain glands situated within the vestibule of the vagina.
Appellant objected to the inclusion of this definition. Appellant contended and maintains
on appeal that inclusion of this definition constituted an improper comment by the trial
court on the weight of the evidence because it so closely resembled the testimony of
Young. We will overrule appellant‘s sole issue presented and affirm the trial court‘s
judgment of conviction.
Standard of Review and Applicable Law
A person commits the offense of indecency with a child by contact if, with a child
younger than 17 years of age and not the person‘s spouse, the person engages in
sexual contact with the child or causes the child to engage in sexual contact. TEX.
PENAL CODE ANN. § 21.11(a)(1). ―Sexual contact‖ means ―any touching by a person‖ of
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―any part of the genitals of a child‖ or ―any touching of any part of the body of a child‖
with ―any part of the genitals of a person,‖ ―if committed with the intent to arouse or
gratify the sexual desire of any person.‖ Id. § 21.11(c). The Texas Penal Code does
not define the term ―genitals.‖
The trial court‘s charge to the jury must satisfy the following definition:
a written charge distinctly 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 his charge
calculated to arouse the sympathy or excite the passions of the jury.
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court‘s charge must
contain an accurate description of the law. Ex parte Varelas, 45 S.W.3d 627, 633
(Tex.Crim.App. 2001). But the trial court must not convey any personal opinion in the
jury charge as to the truth or falsity of any evidence. Russell v. State, 749 S.W.2d 77,
78 (Tex.Crim.App. 1988). A charge that ―assumes the truth of a controverted issue‖ is
an improper comment on the weight of the evidence. Whaley v. State, 717 S.W.2d 26,
32 (Tex.Crim.App. 1986); Delapaz v. State, 228 S.W.3d 183, 212 (Tex.App.—Dallas
2007, pet. ref‘d).
A trial court has broad discretion in submitting proper definitions and explanatory
phrases to the jury. Macias v. State, 959 S.W.2d 332, 336 (Tex.App.—Houston [14th
Dist.] 1997, pet. ref‘d). A trial court must define any legal phrase that a jury must
necessarily use in properly resolving the issues. See Breckenridge v. State, 40 S.W.3d
118, 123 (Tex.App.—San Antonio 2000, pet. ref‘d); Macias, 959 S.W.2d at 336. As a
general rule, a term that is not legislatively defined is to be understood as ordinary
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usage allows, and jurors may give them any meaning which is acceptable in common
parlance. See Breckenridge, 40 S.W.3d at 123 (citing Medford v. State, 13 S.W.3d 769,
771-72 (Tex.Crim.App. 2000)).
As the Breckenridge court pointed out, however, there are exceptions to this
general rule:
Justice is better served, and more consistently applied, if jurors are
provided a precise, uniform definition to guide their determination
regarding the meaning of certain words and phrases. For example, justice
is better served by defining words and phrases which have a known and
established legal meaning, or which have acquired a peculiar and
appropriate meaning in the law, as where the words have a well-known
common law meaning.
Id. (citing Medford, 13 S.W.3d at 772). (Internal citations omitted).
Applying this exception, the Breckenridge court addressed a contention similar to
the one made by appellant in the instant case. Breckenridge had been convicted of
indecency with a child by exposure and argued on appeal that the trial court should not
have included a definition of female genitalia that was identical to the one included in
the instant case. Id. at 121. The San Antonio court rejected the appellant‘s argument
that the definition ―singled out testimony and commented on the weight of the evidence.‖
Id. at 122, 124. Because the testimony at trial drew distinctions between the terms
―vagina‖ and ―pubic area‖ and because ―the jurors were required to understand the legal
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meaning of the term genitals to properly resolve the issue,‖ the trial court did not abuse
its discretion by including a definition of ―genitals‖ in its charge to the jury. 2 Id. at 124.
In arriving at its conclusions directly relevant to the issues at bar, the
Breckenridge court discussed Clark v. State, 558 S.W.2d 887, 888–89 (Tex.Crim.App.
1977). In Clark, the appellant challenged the sufficiency of the evidence to sustain his
conviction for indecency with a child and urged a narrow definition of ―sexual contact‖
and ―genitals.‖ See id. at 889. The Texas Court of Criminal Appeals rejected the
appellant‘s interpretations and concluded that Section 21.11 prohibited the touching of
any part of the genitals, which includes more than just the vagina. See id. The court
continued: ―the definition of ‗genitals‘ includes the vulva which immediately surrounds
the vagina.‖ Id.; see Carmell v. State, 331 S.W.3d 450, 460 (Tex.App.—Fort Worth
2010, pet. ref‘d).
Authority from the Austin court is consistent with Clark‘s conclusions and its
treatment of the term ―genitals‖ as one having an established legal meaning.3 See Aylor
v. State, 727 S.W.2d 727, 729–30 (Tex.App.—Austin 1987, pet. ref‘d) (quoting Clark‘s
definition of ―genitals‖ to support conclusion that, similarly, ―female sexual organ‖
included more than the vagina). Authority from this Court is likewise consistent. We
2
Appellant relies heavily on the dissenting opinion in Breckenridge, 40 S.W.3d at
128 (Hardberger, J., dissenting). We are not persuaded to adopt the dissenting
opinion‘s rationale and respectfully decline to do so.
3
This appeal was originally filed in the Third Court of Appeals but was transferred
to this Court pursuant to the Texas Supreme Court‘s docket equalization efforts. See
TEX. GOV‘T CODE ANN. § 73.001 (West 2005). As we point out, we are aware of no
conflicts between the authority of the Austin court and this Court which would invoke the
conflicts considerations of Rule 41.3 of the Texas Rules of Appellate Procedure.
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recently applied Clark‘s definition of ―genitals‖ in determining that evidence that the
appellant touched the ―pubic hair area‖ of the victim was sufficient to support a
conviction for indecency with a child by contact. See Salcido v. State, No. 07-10-00170-
CR, 2011 Tex. App. LEXIS 1791, at *6–8 (Tex.App.—Amarillo Mar. 11, 2011, pet. ref‘d)
(mem. op., not designated for publication). And in an analogous case, we concluded
that the trial court did not abuse its discretion by including in its charge a definition of the
term ―female sexual organ‖ as it related to the charges of aggravated sexual assault.
See Gonzales v. State, No. 07-07-00036-CR, 2010 Tex. App. LEXIS 4962, at *3
(Tex.App.—Amarillo June 28, 2010, no pet.) (mem. op., not designated for publication).
Analysis
Here, V.H. testified that appellant kissed and touched her ―genital area.‖ She
described appellant touching her on ―the top‖ of her genital area where she had begun
to grow hair. So, the jury heard evidence as to the where and how appellant touched
V.H. As was the case in Breckenridge, the jury was called on to understand the legal
meaning of the term ―genitals‖ to resolve an issue in this case: whether appellant‘s
actions met the definition of ―sexual contact.‖ See Breckenridge, 40 S.W.3d at 124.
The trial court did not abuse its discretion by providing the jury with the meaning of the
term ―genitals‖ in order to accurately set forth the law applicable to this case. See TEX.
CODE CRIM. PROC. ANN. art 36.14. The trial court, therefore, did not abuse its discretion
by including a definition of ―genitals‖ in its charge to the jury. We overrule appellant‘s
sole issue on appeal.
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Conclusion
Having overruled appellant‘s sole issue, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
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