Joseph Lester Green v. State

Opinion

Fourth Court of Appeals San Antonio, Texas CONCURRING OPINION No. 04-12-00830-CR

Joseph Lester GREEN, Appellant

v. The STATE The STATE of Texas, Appellee

From the 38th Judicial District Court, Medina County, Texas Trial Court No. 11-06-10686-CR The Honorable Camile G. DuBose, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice Concurring Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: May 28, 2014

I concur in the judgment because the result reached by the majority is compelled by the

holding in Kirsch v. State, 357 S.W.3d 645, 650-52 (Tex. Crim. App. 2012), which tells us that a

jury charge should not include definitions of words or phrases unless they are statutorily defined

or have acquired a technical meaning. The legislature has not defined “female sexual organ” or

“penetration” as those words are used in chapter 22 of the Penal Code. And, I agree those words

do not have technical meanings akin to those in Celis v. State, 416 S.W.3d 419, 433-34 (Tex. Crim.

App. 2013) (“foreign legal consultant”) and Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim.

App. 2000) (“arrest”), in which the jury instructions were upheld. Concurring Opinion 04-12-00830-CR

However, I believe these instructions were appropriate and necessary to assure the jury’s

fair understanding of the evidence and proper application of the law to the evidence. Touching

beneath the fold of the external genitalia constitutes penetration of the female sexual organ within

the meaning of the sexual assault statute. See Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim.

App. 2012); Vernon v. State, 841 S.W.2d 407, 409-410 (Tex. Crim. App. 1992). I do not believe

that comports with the common and ordinary understanding of the words “penetration” and

“female sexual organ.” If not constrained by Kirsch, I would conclude the definitions of “female

sexual organ” and “penetration” in the charge in this case were both proper and necessary and were

not comments on the weight of the evidence. I therefore urge the Texas Legislature to adopt

statutory definitions of these terms so that in future sexual assault cases the jury may be instructed

as to their meaning.

Luz Elena D. Chapa, Justice

PUBLISH

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