Trevino, Richard Nieto

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. PD-1304-11

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RICHARD NIETO TREVINO, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

BELL COUNTY

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Keller, P.J., delivered the opinion of the unanimous Court.

Appellant was convicted of indecency with a child. On appeal, he complained that the trial judge erred by including in the jury charge a definition of female genitalia. He contended that the definition was a comment on the weight of the evidence. The court of appeals affirmed, concluding that the definition was not a comment on the weight of the evidence. ⁽¹⁾ After the court of appeals had issued its decision, we handed down Kirsch v. State, ⁽²⁾ which held that defining the word "operate" in a DWI prosecution constituted an impermissible comment on the weight of the evidence. ⁽³⁾ Because the court of appeals did not have the benefit of our opinion in Kirsch, we vacate the court of appeals's decision and remand the case to that court for reconsideration in light of Kirsch.

Delivered: May 2, 2012

Do not publish

1. Trevino v. State, No. 07-11-00027-CR, 2011 Tex. App. LEXIS 5777 (Tex. App.-Amarillo July 27, 2011) (not designated for publication).

2. 357 S.W.3d 645

(Tex. Crim. App. 2012).

3. Id. at 649-52.