Opinion by: Tom Rickhoff, Justice
Dissenting opinion by: Phil Hardberger, Chief Justice
Sitting: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Sarah B. Duncan, Justice
Delivered and Filed: October 25, 2000
The majority holds that the trial court did not abuse its discretion in submitting a definition of "genitals" or "genitalia" in the jury charge. Because the term is not statutorily defined, I believe the trial court erred in submitting the definition, and I respectfully dissent.
The general rule in criminal law regarding when definitions should be submitted to a jury is well-established. If a term or word is statutorily defined, the trial court must submit the statutory definition to the jury. See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) (statutorily defined word must be included in the charge as part of the law applicable to the case); Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref'd) (statutory definition should be submitted). If a term is not statutorily defined, whether a trial court is obligated to define the term depends on whether the term has such a common and ordinary meaning that jurors can be fairly presumed to know and apply that meaning. See Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983); Phillips v. State, 597 S.W.2d 929, 937 (Tex. Crim. App. 1980). Terms that are not statutorily defined are typically to be understood as ordinary usage allows, and jurors are presumed to know and apply the common and ordinary meaning. See Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000); Davis v. State, 949 S.W.2d 28, 29 (Tex. App.--San Antonio 1997, no pet.). As a result, if a word is not statutorily defined, the trial court is not required to define it. See Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996); Davis, 949 S.W.2d at 29.
Under this general rule of law, if Breckenridge had requested that the trial court define the term "genitals" or "genitalia," the trial court would not have erred in refusing the request. See Martinez, 924 S.W.2d at 698; Davis, 949 S.W.2d at 29. The term "genitals" or "genitalia" has a common meaning, so no definition would be required. The question presented in this case, however, is the opposite of the question resolved by the general rule of law. We know that a trial court is not required to define a term that has a common meaning, but what if the trial court does?
In analyzing this issue, I would start with the proposition that "[l]anguage that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further defining or refining." Toney v. State, 3 S.W.3d 199, 206 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (quoting Buel v. State, 104 Wis. 132, 80 N.W. 78, 85 (1899)). What is the effect of providing a definition under those circumstances? I believe such a definition should be given the same effect as a surplus instruction or definition in civil cases. In civil cases, trial courts are instructed not to burden the jury with surplus instructions even if the instruction is a correct statement of the law. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984). Surplus instructions are treated as impermissible comments that tilt or nudge the jury one way or the other. See Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984).
In this case, Breckenridge's entire defense was centered on whether the jury understood the term "genitals" or "genitalia" as including pubic hair. The legislature, in enacting the criminal statute, chose not to define this term. A jury is entirely capable of deciding whether "genitals" or "genitalia" includes pubic hair. The jury should have been allowed to do so. The instruction caused harm for the following reasons. Most of the witnesses testified that they saw "pubic hair." By tailoring the instruction to the testimony, nothing was left for the jury to decide. The trial court had, in effect, directed the verdict. At the very least, the trial court's definition tilted or nudged the jury toward conviction. This is harmful error.
Words, phrases, and terms used in the Penal Code should be taken and understood in their ordinary meaning in common language, except where legislatively defined. Neumuller v. State, 953 S.W.2d 502, 511 (Tex. App.--El Paso 1997, pet. ref'd). Trial courts should not be involved in the business of redefining words used in an ordinary sense by the Texas Legislature. Id. If the Texas Legislature believed that the term "genitals" or "genitalia" should be given a specific meaning, it would have provided one.
In a recent decision, the Texas Court of Criminal Appeals indicated that providing definitions that are not Constitutionally or statutorily mandated is ill-advised. See Paulson v. State, 2000 WL 1468423, at *3 (Tex. Crim. App. Oct. 4, 2000). The definition provided by the trial court in this case was not statutorily mandated, and the term has a commonly understood meaning. I would hold that the trial court erred in providing a definition instructing the jury that pubic hair constituted "genitals" or "genitalia."
PHIL HARDBERGER,
CHIEF JUSTICE
PUBLISH