PD-0738-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/3/2015 9:25:36 AM
September 3, 2015 Accepted 9/3/2015 9:37:31 AM
ABEL ACOSTA
No. PD-0738-14 CLERK
IN THE
TEXAS COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS,
PETITIONER,
v.
JOSEPH GREEN,
RESPONDENT.
ON PDR FROM THE FOURTH
COURT OF APPEALS
AMICUS CURIAE BRIEF BY DISTRICT ATTORNEY FOR THE
105TH JUDICIAL DISTRICT OF TEXAS
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@nuecesco.com
Attorney for Amicus Curiae
STATEMENT OF COMPLIANCE WITH TEX. R. APP. P. 11
The present amicus curiae brief is filed by the District Attorney’s
Office for the 105th Judicial District of Texas, in accordance with the
requirements of Texas Rule of Appellate Procedure 11. No fee has been
paid or will be paid for the preparation of this brief. The certificate of
service attached to the back page of this brief certifies that copies have been
mailed to all parties.
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TABLE OF CONTENTS
STATEMENT OF COMPLIANCE WITH TEX. R. APP. P. 11 .................... i
INDEX OF AUTHORITIES ......................................................................... iii
PRELIMINARY STATEMENT .....................................................................1
ARGUMENT ...................................................................................................2
The Fourth Court of Appeals erred in concluding that the trial court
improperly defined the terms “penetration” and “female sexual organ”
in the jury charge on aggravated sexual assault. ........................................2
I. Proper Jury Charge Definitions. ....................................................2
A. Technical Terms......................................................................3
B. Arbitrary Application..............................................................5
II. Sexual Assault Terms. ....................................................................5
A. Legal History. .........................................................................6
B. Lack of “Common Parlance” Definition. ..............................8
C. Policy Considerations. ...........................................................9
CONCLUSION ............................................................................................. 11
RULE 9.4 (i) CERTIFICATION .................................................................. 11
CERTIFICATE OF SERVICE ..................................................................... 12
ii
INDEX OF AUTHORITIES
Cases
Ball v. State, 163 Tex. Crim. 214, 289 S.W.2d 926 (1956).............................7
Capps v. State, 171 Tex.Crim. 579, 352 S.W.2d 833 (1962). .........................2
Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013). ............................ 2-4
Clark v. People, 224 Ill. 554, 79 N.E. 941. .....................................................8
Clark v. State, 558 S.W.2d 887 (Tex. Crim. App. 1977). ...............................7
Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012). .............................6
Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995)..............................2
Flannery v. State, 135 Tex. Crim. 235, 117 S.W.2d 1111 (1938)...................8
Green v. State, 434 S.W.3d 734 (Tex. App.—San Antonio 2014, pet.
granted). ...........................................................................................................6
Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012). .......................... 2-5
Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639 (Tex. Civ. App.-Dallas
1976, writ ref'd n.r.e.). .....................................................................................4
Lynch v. State, 150 Tex. Crim. 57, 199 S.W.2d 780 (1947). ..........................7
Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000).......................... 2-5
Mirick v. State, 83 Tex. Crim. 388, 204 S.W. 222 (1918).......................... 7, 8
State v. Nash, 83 N.H. 536, 145 A. 262. ..........................................................7
Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426 (1952).........................7
Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1983). .............................3
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Sanders v. State, 127 Tex. Crim. 55, 75 S.W.2d 116 (1934). .........................7
Sherbert v. State, 531 S.W.2d 636 (Tex. Crim. App. 1976)............................7
Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Examiners,
254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied). ...............................4
Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992)..............................2
Watkins v. State, 78 Tex. Crim. 65, 180 S.W. 116 (1915). .............................7
Statutes & Rules
Tex. Gov't Code § 311.011. .............................................................................3
Tex. Pen. Code § 1.05. .....................................................................................3
Tex. Pen. Code § 21.11. ................................................................................ 10
Tex. Pen. Code § 22.01. ................................................................................ 10
Tex. Pen. Code § 22.011. .................................................................................5
Tex. Pen. Code § 22.021. .......................................................................... 5, 10
Tex. Code Crim. Proc. art. 36.13. ...................................................................9
Tex. Code Crim. Proc. art. 36.14. ....................................................................2
The Penal Code of 1925, Art. 1183. ...............................................................7
1 Wharton's Crim. Law (11th Ed.) § 697. .......................................................8
10 Encyc. of Ev. p. 580. ...................................................................................8
2 Bishop's New Crim. Law, § 1132. ................................................................8
iv
NO. PD-0738-14
(Appellate Court Cause No. 04-12-00830-CR)
THE STATE OF TEXAS, § IN THE
Petitioner, §
§
V. § COURT OF CRIMINAL APPEALS
§
JOSEPH GREEN, §
Respondent. § OF TEXAS
PETITIONER’S BRIEF
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
PRELIMINARY STATEMENT
The District Attorney for the 105th Judicial District of Texas has a
special interest in the resolution of this case because of an aggravated sexual
assault case with similar issues from the 214th District Court of Nueces
County, which is now pending before the Thirteenth Court of Appeals as
Victor Sanchez v. State of Texas, No. 13-14-00440-CR (Tex. App.—Corpus
Christi), and in which the appellant has raised a similar challenge to the trial
court’s definition in the jury charge of the terms “penetration” and “sexual
organ.”
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ARGUMENT
The Fourth Court of Appeals erred in concluding that the trial
court improperly defined the terms “penetration” and “female sexual
organ” in the jury charge on aggravated sexual assault.
I. Proper Jury Charge Definitions.
The trial court must instruct the jury on statutorily defined terms as
the law applicable to the case. Celis v. State, 416 S.W.3d 419, 433 (Tex.
Crim. App. 2013) (citing Tex. Code Crim. Proc. art. 36.14). By contrast, it
is generally impermissible to instruct on terms not statutorily defined, and
the trial court instead must permit the jury to construe them according to the
rules of grammar and common usage. Celis, 416 S.W.3d at 433 (citing Tex.
Gov't Code § 311.011 and Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.
App. 2012)). Such words are to be understood as ordinary usage allows and
jurors may freely read them to have any meaning which is acceptable in
common parlance. See Kirsch, 357 S.W.3d at 650; Medford v. State, 13
S.W.3d 769, 771–72 (Tex. Crim. App. 2000); Denton v. State, 911 S.W.2d
388, 390 (Tex. Crim. App. 1995); Vernon v. State, 841 S.W.2d 407 (Tex.
Crim. App. 1992). The trial court is not required, or allowed, to define them
in the jury charge because they are “commonly and ordinarily understood by
people generally.” Capps v. State, 171 Tex.Crim. 579, 352 S.W.2d 833, 835
(1962); see also Kirsch, 357 S.W.3d at 650 (citing Capps).
2
To that end, the Court of Criminal Appeals has stated that, “[w]here
there is no statutory definition of a term, the question of trial court's
obligation 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 such meaning.” Russell v. State, 665 S.W.2d 771, 780 (Tex.
Crim. App. 1983). In other words, no definition is required or allowed
“when such word is used in its ordinary sense, and it is easily comprehended
by everyone.” Id. at 780.
A. Technical Terms.
However, a trial court may define a statutorily undefined term that has
an established legal definition or that has acquired a technical meaning that
deviates from its meaning in common parlance. Celis, 416 S.W.3d at 433
(citing Medford, 13 S.W.3d at 771–72 and Tex. Gov't Code § 311.011(b)).
The Code Construction Act provides that “[w]ords and phrases that have
acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed accordingly.” Tex. Gov't Code § 311.011
(b); see also Tex. Pen. Code § 1.05 (b) (applying this provision of the Code
Construction Act to the Penal Code).
Terms which have a known and established legal meaning, or which
have acquired a peculiar and appropriate meaning in the law, as where the
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words used have a well-known common law meaning, are considered as
having been used in their technical sense. Kirsch, 357 S.W.3d at 650 (citing
Medford, 13 S.W.3d at 772).
In Celis, for example, the Court of Criminal Appeals found that, for
purposes of practicing law, the term “in good standing” with the State Bar
was a technical term because it has acquired a peculiar and appropriate
meaning in the law. 416 S.W.3d at 433. In Kirsch, however, the Court
refused to allow a charge definition of “operate” in a DWI case because of
the absence of any controlling case law dictating any particular definition of
“operate.” 357 S.W.3d at 648.
Specifically, with regard to anatomical terms that might be commonly
understood in general, but that have a special meaning in the context in
which they are used in a statute, such as the term “foot” as used in defining
the scope of the practice of podiatry, the courts have interpreted it as a
technical term and looked to medical definitions. See Texas Orthopaedic
Ass'n v. Texas State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714, 720-
21 (Tex. App.—Austin 2008, pet. denied); see also Lloyd A. Fry Roofing
Co. v. State, 541 S.W.2d 639, 642–43 (Tex. Civ. App.-Dallas 1976, writ
ref'd n.r.e.) (explaining that when a statutory term has technical meaning,
court will look to the particular art, science, or trade from which it was taken
4
to ascertain its meaning).
B. Arbitrary Application.
In deciding which terms are common and understandable without
definition in the charge, and which are technical terms requiring definition,
the Court of Criminal Appeals also takes into consideration the risk “that
jurors may arbitrarily apply an inaccurate definition to the term,” and
whether “an express definition is required to assure a fair understanding of
the evidence.” Kirsch, 357 S.W.3d at 650. In Medford, the Court of
Criminal Appeals stated:
“Arrest” 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. Justice would be better
served, and more consistently applied, if jurors were provided a
precise, uniform definition to guide their determination whether the
particular circumstances at issue constituted a completed arrest.
Id. at 772.
II. Sexual Assault Terms.
The present sexual assault and aggravated sexual assault statutes
criminalize, in pertinent part, the “penetration” of, or “contact” with, the
“sexual organ” of the victim in a variety of different ways specified under
the statutes. See Tex. Pen. Code § 22.011 (a) & Tex. Pen. Code § 22.021 (a)
(Added by Acts 1983, 68th Leg., p. 5312, ch. 977, § 3, eff. Sept. 1, 1983).
With little analysis, the San Antonio Court of Appeals held that
5
definitions of “female sexual organ” and “penetration” were improperly
included in the jury charge and constituted an improper comment on the
weight of the evidence. Green v. State, 434 S.W.3d 734, 738 (Tex. App.—
San Antonio 2014, pet. granted). The State would argue that the Green
opinion, which is presently under review by this Court, is wrong.
The terms in question are clearly technical ones with a long history in
Texas law, they lack common definition or consensus as to meaning in the
legal context of a sexual offense, and a failure to define them in the charge
would create a real and substantial danger of arbitrary results.
A. Legal History.
The Court of Criminal Appeals has recently stated that “penetration
occurs when there is tactile contact beneath the fold of complainant's
external genitalia,” and that “pushing aside and reaching beneath a natural
fold of skin into an area of the body not usually exposed to view, even in
nakedness, is a significant intrusion beyond mere external contact, and
therefore constitutes penetration in the context of sexual assault.” Cornet v.
State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) (citations omitted).
This is consistent with a long history of similar definitions of penetration
with regard to the present sexual assault statutes and prior rape statutes
criminalizing essentially the same conduct under the guise of “carnal
6
knowledge.” 1
In spite of significant statutory changes, substituting sexual
intercourse and various more specific acts of contact or penetration of the
female sexual organ for the prior term “carnal knowledge,” Texas cases have
consistently retained the concept that penetration, however slight, is
sufficient, and that penetration beneath the folds of the outer labia or vulva is
enough to show a rape or sexual assault. See Clark v. State, 558 S.W.2d
887, 889 (Tex. Crim. App. 1977); Sherbert v. State, 531 S.W.2d 636, 637
(Tex. Crim. App. 1976); Ball v. State, 163 Tex. Crim. 214, 217, 289 S.W.2d
926, 928 (1956); Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426
(1952); Lynch v. State, 150 Tex. Crim. 57, 58, 199 S.W.2d 780 (1947);
Sanders v. State, 127 Tex. Crim. 55, 58, 75 S.W.2d 116, 117 (1934); Mirick
v. State, 83 Tex. Crim. 388, 393, 204 S.W. 222, 225 (1918); Watkins v.
State, 78 Tex. Crim. 65, 66, 180 S.W. 116, 117 (1915). Some Court of
Criminal Appeals cases even cite cases from other states and nationally
recognized treatises employing the same concepts concerning the definition
of rape and sexual assault. See Ball, 289 S.W.2d at 928 (citing State v.
1
The Penal Code of 1925 provided, in pertinent part, that “Rape is the
carnal knowledge of a woman without her consent obtained by
force, threats or fraud ….” Art. 1183 (available at Texas State Law
Library, http://www.sll.texas.gov/assets/pdf/historical-
codes/1925/1925pen5.pdf).
7
Nash, 83 N.H. 536, 145 A. 262, and Clark v. People, 224 Ill. 554, 79 N.E.
941) and Mirick, 204 S.W. at 225 (citing 1 Wharton's Crim. Law (11th Ed.)
§ 697; 10 Encyc. of Ev. p. 580; 2 Bishop's New Crim. Law, § 1132).
Accordingly, the Court of Criminal Appeals long ago approved of the
following jury instruction in a rape case:
You are further instructed that the slightest penetration of the body of
the female by the sexual organ of the male is sufficient; it is
unnecessary that the penetration should be perfect; nor that there
should be an entering of the vagina or rupture of the hymen; the
entering of the vulva or labia is sufficient.
Flannery v. State, 135 Tex. Crim. 235, 240-41, 117 S.W.2d 1111, 1114-15
(1938).
B. Lack of “Common Parlance” Definition.
The “penetration of the female sexual organ,” involves subtle
distinctions that are irrelevant to acts of love and that only come into play in
connection with criminal conduct. Lovers certainly do not speak of their
acts of affection in these terms, nor do they draw the sort of distinctions
involving the boundaries of the organs in question or what does or does not
constitute penetration. Such technical distinctions only come into play in the
context of a criminal offense or, to some degree, in the equally technical and
specialized context of medical science. Accordingly, it would seem unlikely
that the average juror would have had occasion to discuss or consider what
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amounts to penetration of the female sexual organ outside of the trial at
issue.
C. Policy Considerations.
The question of what words to judicially define and what words to
leave for the jury itself to define within a range of common meanings boils
down to one of whether that definition falls on the side of a legal issue
within the realm of the courts, or a factual issue within the realm of the jury.
See Tex. Crim. Proc. Code art. 36.13 (“the jury is the exclusive judge of the
facts, but it is bound to receive the law from the court and be governed
thereby”). In other words, did the legislature intend to allow the jury some
latitude to decide for itself whether to employ a more, or less, restrictive
definition to the particular facts and circumstances under consideration. Or,
did the legislature intend to incorporate a specialized legal meaning for the
term which the jury would be bound to follow. The answer to that question
is clear when the legislature itself defines the term, but less so when the term
is left undefined.
Presumably, part of the justification for leaving the jury to define
common terms is to allow them to bring all the facts of the case to bear on
those definitions in order to reach a just result. For example, refusing to
bind the jury to any particular definition of “operate” for purposes of a DWI
9
charge gives the jury leeway to consider the manner and extent to which the
defendant’s actions, under the unique facts of the case in question, actually
placed other drivers in danger in a manner that our DWI laws are meant to
combat. However, in cases of sexual assault or indecency, the surrounding
facts could have little practical impact in determining whether the touching
in question amounted to penetration or contact with a sexual organ of the
nature that the legislature intended to punish. Touching or breaking the fold
in one case is about the same as touching or breaking the fold in any other,
and it is hard to find justification for disparate treatment of the same acts
based on arbitrarily allowing one jury to define contact or penetration in one
manner and another jury to define it in a different manner.
Moreover, differing definitions of penetration and the extent of the
“female sexual organ” may mean the difference between 25 years to life for
an aggravated sexual assault of a child, Tex. Pen. Code § 22.021 (f) (1), a
second-degree indecency with a child by sexual contact, Tex. Pen. Code §
21.11 (d), and possibly only a Class C misdemeanor assault by offensive
contact. Tex. Pen. Code § 22.01 (c).
For all of these reasons, the trial court properly defined the terms in
question in the jury charge.
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CONCLUSION
The District Attorney’s Office for the 105th Judicial District of Texas
submits the foregoing Amicus Curiae Brief for the Court’s consideration in
the present case.
.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,171.
/s/Douglas K. Norman
___________________
Douglas K. Norman
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CERTIFICATE OF SERVICE
This is to certify that copies of this brief were e-mailed on September
3, 2015, to the attorney for Mr. Green, Mr. Tomas Ramirez, the attorney for
the State, Mr. Edward F. Shaughnessy, III, and the State Prosecuting
Attorney.
/s/Douglas K. Norman
___________________
Douglas K. Norman
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