Affirm and Opinion Filed July 12, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01679-CR
JORGE ARREDONDO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F09-56346-K
OPINION
Before Justices FitzGerald, Francis, and Lewis
Opinion by Justice FitzGerald
Appellant Jorge Arredondo was convicted of indecency with a child and sentenced to
three years in prison. On appeal, he raises two points of error. He complains that the jury charge
was erroneous and that the trial judge improperly commented on the weight of the evidence
during voir dire. We affirm.
I. BACKGROUND
The evidence at appellant’s jury trial showed the following facts. On June 9, 2009, the
thirteen-year-old complainant spent the night at her grandmother’s house. Several other people
were present; one of the complainant’s aunts lived at the house with the complainant’s
grandmother, and two of her cousins also spent that night there. Appellant was also present that
evening, having arrived at around 9 p.m. The complainant testified that during the night,
appellant went into her bedroom three different times and touched her on each of those
occasions. She testified that on the first occasion, appellant touched her vagina both over and
under her shorts, and he moved his hand back and forth. He left the room, and then a few
minutes later he returned and put his hand on her vagina over her shorts. He left the room again,
and the complainant rolled over so that she was lying on her stomach. Then appellant returned,
touched the complainant’s buttocks over her shorts, and left again. Appellant left the house the
next morning before the complainant got out of bed. The complainant reported the incidents to
her mother the next day, and her mother called the police.
Appellant was indicted for indecency with a child. The issue of guilt was tried to a jury,
and the jury found appellant guilty. The issue of punishment was tried to the bench, and the trial
judge assessed appellant’s punishment at three years’ imprisonment. Appellant timely appealed.
II. ANALYSIS
A. Jury charge
In his first point of error, appellant argues that the trial judge erred by including in the
jury charge the full definitions of “intentionally” and “knowingly,” thereby confusing the jury.
Appellant acknowledges that he did not object to the jury charge. Accordingly, in this appeal we
determine first whether the jury charge was erroneous. Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). If it was, we reverse only if the error was so egregious and created such
harm that it denied appellant a fair and impartial trial. See id.
These are the jury instructions appellant complains of:
A person commits the offense of INDECENCY WITH A CHILD if, with
a child younger than 17 years of age, the person intentionally or knowingly
engages in sexual contact with the child with intent to arouse or gratify the sexual
desire of any person.
A person acts intentionally, or with intent, with respect to a result of his
conduct when it is his conscious objective or desire to cause the result.
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A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause the
result.
“Sexual contact” means the following act, if committed with the intent to
arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of any
part of the genitals of a child.
...
Now if you find from the evidence, that on or about 9th [sic] day of June,
A.D., 2009 in Dallas County, Texas, the defendant, JORGE ARREDONDO, did
unlawfully then and there intentionally or knowingly engage in sexual contact
with [complainant], a child younger than 17 years and not then the spouse of the
defendant, by contact between the hand of the defendant and the GENITALS of
the complainant, with intent to arouse or gratify the sexual desire of the
defendant, then you will find the defendant guilty of INDECENCY WITH A
CHILD BY CONTACT as charged in the indictment.
Appellant argues that the trial judge erred by defining “intentionally” and “knowingly” in terms
of the result of an actor’s conduct because indecency with a child is a “nature of the conduct”
offense, meaning that the actor must intend to engage in the proscribed conduct rather than
intend to bring about any particular result. See Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.
App.—Corpus Christi 2000, pet. ref’d).
We compare the jury charge to the relevant statute. As applicable to the facts of this
case, the statute defines indecency with a child as engaging in “sexual conduct” with a person
under 17 years of age, TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011), and it defines “sexual
conduct” as touching, including touching through clothing, any part of the genitals of the child
“with the intent to arouse or gratify the sexual desire of any person,” id. § 21.11(c)(1).1 In other
words, the offense consists of touching, including touching through clothing, any part of the
genitals of a child under the age of 17 years, with the intent to arouse or gratify the sexual desire
1
Section 21.11 was amended in 2009, effective after the date of the offense involved in this case. See Act of May 18, 2009, 81st Leg., R.S.,
ch. 260, § 1, 2009 Tex. Gen. Laws 710. Those amendments made marriage an affirmative defense to prosecution under section 21.11, and they
are not relevant to this case. Accordingly, we cite the current version of the statute.
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of any person. See generally id. § 21.11(a)(1), (c)(1). Thus, the only mental state expressly
required by the statute is “intent,” and the statute appears to require the actor’s intent to be
directed to the result of the conduct—arousal or gratification of a person’s sexual desire—rather
than the nature of the conduct, which is the touching itself. Logically, an actor cannot touch a
child with the intent to arouse or gratify sexual desire without also knowingly or intentionally
committing the touching itself. See McMillan v. State, 926 S.W.2d 809, 811 (Tex. App.—
Eastland 1996, pet. ref’d) (“The jury could not have found such an intent [to arouse or gratify
sexual desire] unless it believed that appellant knowingly or intentionally engaged in sexual
contact with the complainant.”); see also Guia v. State, 723 S.W.2d 763, 765 (Tex. App.—Dallas
1986, pet. ref’d) (stating that the elements of indecency with a child are that the defendant “1)
knowingly or intentionally; 2) engaged in sexual contact; 3) with a child; 4) younger than
seventeen years of age; 5) who was not the spouse of the accused”). Nevertheless, the statute
does not expressly require proof that the actor intentionally or knowingly engaged in sexual
contact with a child, see generally TEX. PENAL CODE ANN. § 21.11, and the jury charge in this
case did.
Assuming without deciding that the trial judge erred by including the definitions of
“intentionally” and “knowingly” in the jury charge and by including the phrase “intentionally or
knowingly” in the definition of the offense and in the application paragraph, we conclude that
appellant was not egregiously harmed by these instructions. In assessing harm, we may consider
(1) the charge itself, (2) the state of the evidence, including the contested issues and the weight
of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information
revealed by the record. Vega v. State, 394 S.W.3d 514, 521 (Tex. Crim. App. 2013). As for the
charge itself, the application paragraph required the State to prove all the statutory elements,
including intent to arouse or gratify a person’s sexual desire. The presence of the additional
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phrase “intentionally and knowingly” would not have reduced the State’s burden of proof, so any
harm caused by the inclusion would have been minimal. With respect to the evidence, the
contested issue was the complainant’s credibility, not appellant’s intent, knowledge, or lack
thereof. Appellant directs us to no evidence putting his intent or knowledge at issue, and we
have found none. The closing arguments focused on the complainant’s credibility. Under these
circumstances, appellant did not suffer egregious harm. See Rodriguez, 24 S.W.3d at 503
(concluding on similar facts that there was no egregious harm); see also Battaglia v. State, No.
05-06-00798-CR, 2007 WL 4098905, at *2 (Tex. App.—Dallas Nov. 19, 2007, no pet.) (not
designated for publication) (rejecting claim of egregious harm from similar jury charge).
Appellant argues that harm is shown by certain statements by the judge and certain
questions by veniremembers during voir dire. We disagree. One veniremember, whom
appellant concedes did not sit on the jury, expressed some confusion about how to know whether
alleged conduct gratified appellant’s sexual desire, but this confusion did not implicate the
definitions of “intentionally” or “knowingly,” and there is no indication that any members of the
jury were confused about the intent element. The judge did briefly discuss the meanings of
“intentionally” and “knowingly” during voir dire, but there is no indication that the jury was
confused by the judge’s remarks, or that the judge’s remarks had any influence in this case that
turned primarily on the complainant’s credibility.
Because the charge error, if any, did not cause egregious harm, we overrule appellant’s
first point of error.
B. Comments by the trial judge
In his second point of error, appellant argues that the trial judge erred by commenting on
the weight of the evidence before the venire panel regarding the complainant’s age and the
parties’ marital status. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979) (providing that,
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before the return of the verdict, the trial judge shall not “make any remark calculated to convey
to the jury his opinion of the case”). Appellant concedes that he did not object to the judge’s
remarks of which he now complains, but he argues that no objection was required to preserve
this kind of error. The State disagrees and argues that appellant waived any error by failing to
object.
“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009) (footnote omitted). If an issue has not been preserved for
appeal, we should not address its merits. Id.; see also TEX. R. APP. P. 33.1(a). Appellant argues
that the court of criminal appeals has recognized an exception to this rule for a trial judge’s
comments on the weight of the evidence. Appellant relies specifically on the following sentence
in Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012): “We conclude that failure to
preserve error is not a proper basis for the court of appeals to decline to address whether the trial
court improperly commented on the weight of the evidence.” But as the State points out, the
issue in Kirsch was whether the jury charge contained a comment on the weight of the evidence
in the jury charge, and objection is not necessary to preserve jury-charge error. Indeed, the
Kirsch court recognized this very point in the same paragraph where the sentence relied on by
appellant appears:
However, all alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court. Appellate review of purported error
in a jury charge involves a two-step process. First, we determine whether the jury
instruction is erroneous. Second, if error occurred, then an appellate court must
analyze that error for harm. The issue of error preservation is not relevant until
harm is assessed because the degree of harm required for reversal depends on
whether the error was preserved. We conclude that failure to preserve error is not
a proper basis for the court of appeals to decline to address whether the trial court
improperly commented on the weight of the evidence.
Id. (emphasis added, citations and footnote omitted).
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Outside the context of the jury charge, the courts of appeals have consistently said that a
party must object to preserve an argument that a trial judge’s statement before a jury constitutes
an erroneous comment on the weight of the evidence. See, e.g., Brown v. State, 333 S.W.3d 606,
614 (Tex. App.—Dallas 2009, no pet.); Williams v. State, 191 S.W.3d 242, 251 (Tex. App.—
Austin 2006, no pet.); Davis v. State, 177 S.W.3d 355, 362–64 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (en banc). We conclude that Kirsch did not change this rule for comments on the
weight of the evidence made outside the jury-charge context.
We overrule appellant’s second point of error because it was not preserved in the trial
court.
III. CONCLUSION
For the foregoing reasons we affirm the trial court’s judgment.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
Do not publish
TEX. R. APP. P. 47.2(b)
111679F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JORGE ARREDONDO, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-11-01679-CR V. Trial Court Cause No. F09-56346-K.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Francis and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 12, 2013
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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