Joseph Lester Green v. State

434 S.W.3d 734, 2014 Tex. App. LEXIS 5902, 2014 WL 2519504
CourtCourt of Appeals of Texas
DecidedMay 28, 2014
Docket04-12-00830-CR
StatusPublished
Cited by8 cases

This text of 434 S.W.3d 734 (Joseph Lester Green v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph Lester Green v. State, 434 S.W.3d 734, 2014 Tex. App. LEXIS 5902, 2014 WL 2519504 (Tex. Ct. App. 2014).

Opinions

OPINION

Opinion by REBECA C. MARTINEZ, Justice.

Joseph Green appeals his conviction for aggravated sexual assault of a child. Because we conclude the jury charge contained harmful error, we reverse the trial [736]*736court’s judgment and remand for a new trial.

BACKGROUND

When A.G. was twelve years old, she began communicating with her father, Green, who was incarcerated and who she did not previously know. Green and A.G. exchanged letters for a period 'of time until Green was released from prison. Upon his release, Green began visiting A.G. at her grandparents’ home where she lived. Green’s visits evolved into taking A.G. out to eat or to the mall, and eventually included A.G. spending the night with Green at his mother’s home where he resided. At first, Green slept on the couch while A.G. slept in his bed, but then Green began sleeping in the bed with A.G. On one of her overnight visits, A.G. awoke to find Green’s hand underneath her clothes, touching her genitals and breast. After Green stopped, A.G. started crying, got up, turned on the lights, and demanded he take her home. When Green asked her what was wrong, A.G. told him it was “because he touched her.” Green eventually agreed to drive A.G. home to her grandparents’ house.

When A.G. arrived home, she called her Aunt Sandy and told her that her father had touched her. Her grandparents called the police the next day. Bexar County Sheriffs Deputy Adam Hernandez interviewed A.G. at the home and recommended she go to the hospital for a sexual assault exam. SANE Nurse Cynthia Garcia examined A.G.; there was no evidence of any physical trauma. A few days later, A.G. was interviewed by an investigator with the Texas Department of Family and Protective Services. Finally, Mary Barrios of Bluebonnet Advocacy, Inc. conducted a videotaped interview with A.G. Green was initially indicted for indecency with a child by sexual contact. The State later dismissed that indictment and re-indicted Green for aggravated sexual assault of a child, alleging that Green penetrated A.G.’s female sexual organ with his finger. A jury found Green guilty of aggravated sexual assault as charged in the indictment, and he was sentenced to twenty-four years’ imprisonment. Green now appeals.

Analysis

On appeal, Green asserts the jury charge contained error, the evidence is insufficient to support his conviction, and the court erroneously excluded a videotaped interview of A.G. We address the jury charge issue first.

Jury Charge

Green argues the jury charge was erroneous because (i) it contained non-statutory definitions of the terms “penetration” and “female sexual organ” which amounted to an improper comment on the weight of the evidence, and (ii) it asked the jury to consider whether Green was guilty of the lesser-included offense of indecency with a child by sexual contact if it found him not guilty of aggravated sexual assault. When reviewing alleged charge error, we first determine whether error exists in the jury charge, and if so whether sufficient harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005).

Definitions. Upon the State’s request, and over Green’s objection, the court’s charge included instructions defining the terms “penetration” and “female sexual organ.” The charge defined “female sexual organ” as “the entire female genitalia, including both vagina and the vulva. Vulva is defined as the external parts of the female genital organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance to the vagina.” The court also de[737]*737fined “penetration” and instructed the jury as follows:

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.

Green does not argue the definitions are incorrect, but rather argues that no definitions of “penetration” and “female sexual organ” should have been given because when a term is undefined in the Penal Code the jury is to construe its meaning according to the rules of grammar and common usage. See Tex. Gov’t Code Ann. § 311.011 (West 2013); Tex. Penal Code Ann. § 1.05(b) (West 2011) (incorporating Government Code section 311.011). Green relies on Kirsch v. State, in which the Court of Criminal Appeals held a jury instruction defining the common word “operate” was an improper comment on the weight of the evidence in a driving while intoxicated prosecution. Kirsch v. State, 357 S.W.3d 645, 652 (Tex.Crim.App.2012). In Kirsch, the Court noted that while the definition given to the jury was neutral and legally accurate, because the term “operate” is a common word that has not acquired a technical meaning it was to be interpreted by the jury according to its common usage and instructing the jury to apply a particular definition was improper. Id. at 650-52; Tex. Gov’t Code Ann. § 311.011 (stating general rule that statutorily undefined term is to be construed according to its common usage, but that words and phrases that have “acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly”). The Court explained that while a particular definition of a statutorily undefined term may be used by an appellate court in conducting a sufficiency review, submitting the definition as an instruction to the jury may constitute an improper comment on the weight of the evidence. Kirsch, 357 S.W.3d at 651. Under article 36.14, the trial court is required to give the jury a written charge “setting forth the law applicable to the case” and “not expressing an opinion as to the weight of the evidence.” Id.; Tex.Code Crim. Proc. Ann. art. 36.14 (West 2007). Generally, if a jury charge instruction “is not derived from the [penal] code, it is not ‘applicable law1 under art. 36.14.” Kirsch, 357 S.W.3d at 651 (quoting Walters v. State, 247 S.W.3d 204, 214 (Tex.Crim.App.2007)). The Court explained that, “[w]ith only limited exceptions, the trial court may not include an instruction that focuses the jury’s attention on a specific type of evidence that may support a finding of an element of an offense,” even if the instruction is “facially neutral and legally accurate.” Kirsch, 357 S.W.3d at 651; cf. Medford v. State, 13 S.W.3d 769, 772 (Tex.Crim.App.2000) (holding that “ ‘[a]rrest’ is a technical term possessing a long, established history in the common law, and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest”).

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Bluebook (online)
434 S.W.3d 734, 2014 Tex. App. LEXIS 5902, 2014 WL 2519504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-lester-green-v-state-texapp-2014.