Concurring and Dissenting Op inion Filed June 9, 2021 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-01328-CR JERRY LYNN TURNER, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 070819 CONCURRING AND DISSENTING OPINION Before Justices Partida-Kipness, Pedersen, III, and Goldstein Dissenting Opinion by Justice Partida-Kipness While I concur in the majority’s affirm ation of the trial court’s judgment, I disagree with the majority’s conclusion thatthe trial court did not err by giving the instruction on “penetration.” Because I conc lude the instruction was erroneous under binding precedent from the Texas Court of Criminal Appeals, I respectfully dissent from the majority’s resolution of Turner’s third issue. The charge included the following per tinent language regarding aggravated sexual assault of a child: A person commits the offense of Aggr avated Sexual Assault of a child if the person, regardless of whethe r the person knows the age of the–2– child at the time of the offense, intentionally and knowingly causes the penetration of the mouth of a child by the sexual organ of the actor, . . . .

. . . . Penetration is complete however slight. In his third issue, Turner argues that the charge commented on the weight of the evidence by including the instruction “[p]en etration is complete however slight.” Turner further argues the error caused him egregious harm. The State concedes the trial court erred by including the penetration instruction in the charge but maintains the error was harmless. None theless, the majority concludes that submitting the penetration instruction was not error. That conclusion is contrary to the court of criminal appeals’s 2015 opinion in Green v. State , 476 S.W.3d 440 (Tex. Crim. App. 2015). Further, the cases the majority relies on to reach its conclusion were each issued before Green and conflict with Green ’s holding that it is error for a trial court to define penetration in a charge because “penetration” is not statutorily defined and does not have a known and es tablished legal meaning. Green , 476 S.W.3d at 445.
In Green , the trial court defined the word “penetration” in the charge and instructed the jury as follows: One of the elements in this case is “penetration.” You are instructed that penetration occurs so long as contact with the fe male sexual organ could reasonably be regarded by or dinary English speakers as more intrusive than contact withthe outer vaginal lips and is complete, however slight, if any. Touching beneath the fold of the external genitalia amounts to pene tration within the meaning of the aggravated sexual assault statute.–3– Green v. State , 434 S.W.3d 734, 737 (Tex. App.—S an Antonio 2014) (emphasis added), rev’d on other grounds , 476 S.W.3d 440 (Tex. Crim. App. 2015). The court of criminal appeals held that the court of appeals correctly concluded that those instructions were erroneous because the term “penetration” is not statutorily defined and no persuasive authority es tablished that the term had acquired a technical or particular legal meaning applicab le in the context of the case. Id. at 445–46. The Green court then conducted a harm analysis and concluded the error was harmless. Id. at 449. Under Green , the focus of an error analysis is on whether the term “penetration” is statutorily defined or has a known and established legal meaning such that a definition of that term is c onsidered the law applicable to the case under article 36.14. Green , 476 S.W.3d at 445. Terms that are not statutorily defined or do not have a known and establ ished legal meaning are not considered “the law applicable to the case” and should not be included in the charge. Id. Instead, the jury should be permitted to interpret the term according to common usage. Id. Here, as in Green , the term at issue is “pen etration.” That term is not statutorily defined and, according to the court in Green , that term does not have a known or established legal meaning such that a definition of that termis considered the law applicable to the case under article 36.14. See id. And each instruction includes the same language that penetration “is complete, howeve r slight.” I would conclude that Green controls–4– our analysis here and requires this Court to hold that the trial court erred by including the penetration instruction in the court’s charge. The majority’s attempt to distinguish Green is unavailing. The majority states that Green is inapplicable because the langua ge at issue here “served as an instruction on the degree of penetration re quired under the aggravat ed sexual assault statute” rather than providi ng a “meaning as to what act constituted penetration.” (Slip. Op. at 16–17). That is incorrect. The penetration instruction given here includes the same language—that penetration is complete “however slight”—as the definition and instructi on deemed erroneous in Green . Although the instructions in Green included more language than the penetr ation instruction at issue here, the Green court concluded the entire instructi on was erroneous becau se it defined a term—penetration—that is not statutoril y defined and does not have a known and established legal meaning. Green , 476 S.W.3d at 445–46. The instructions in Green are arguably more incorrect th an the instruction at issue here because they included more words, but that does not make the pe netration instruction in this case correct under Green . On the contrary, I believe Green requires this Court to conclude that the penetration instruction was given in error. Further, the four cases relied on by the majority are pre- Green and do not support a conclusion that defini ng “penetration” was proper here. Henry v. State , 103 S.W.2d 377 (1937); Sherbert v. State , 531 S.W.2d 636 (Tex. Crim. App. 1976); Vernon v. State , 841 S.W.2d 407 (Tex. Crim. App. 1992); Arriaga v. State , No. 05-–5– 09-00815-CR, 2010 WL 2404693 (T ex. App.—Dallas June 17, 2010, pet. ref’d) (not designated for publication). For example, this Court’s 2010 opinion in Arriaga v. State was issued five years before the court of criminal appeals issued Green . In Arriaga , a sexual assault case, the trial court instructed the jury that “‘penetration’ is complete however slight.” 2010 WL 2404693, at *2. This C ourt concluded the instruction was not

erroneous. Id. at *3. Although the definition of “penetration” in Arriaga is the same as the definition at issue here, I would hold that Arriaga is inapplicable here because it is pre- Green , unpublished, and does not address th e legal concepts relied on by the Green court. Specifically, Arriaga does not address the general rule upon which Green based its holding: that “definitions for terms that are not statutorily defined are not considered to be the ‘applicable law’ under Article 36. 14, and it is thus generally impermissible for the trial court to define those terms in the jury instructions.” Green , 476 S.W.3d at 445. The Green court concluded that “penetration” may not be defined in a charge because it is not statutorily defined and does not have a known and es tablished legal meaning. Id. To the extent Arriaga held otherwise, it conflicts with the binding precedent of Green and should not be followed here. Henry , Sherbert , and Vernon , like Arriaga , issued years before Green and are, thus, no longer good law on the question at issue here. But they are also distinguishable from this case. The 1937 case of Henry v. State did not address–6– whether defining “penetration” in a char ge constitutes error. 103 S.W.2d at 380. Rather, the Henrycourt determined, without analysis , that the charge’s definition of “act of intercourse” was prope rly submitted: “By the term‘Act of intercourse’ as used herein is meant any degree of pene tration, however sli ght, of the person of prosecuting witness by defendant.” Id.
In Sherbert and Vernon , penetration was not define d in the charges, and the court of criminal appeals did not address whether including a definition of penetration would have been error. Sherbert , 531 S.W.2d at 637; Vernon , 841 S.W.2d at 409–10. Rather, in each case, th e court addressed whether the evidence was sufficient to prove the act of penetration. Sherbert , 531 S.W.2d at 637; Vernon , 841 S.W.2d at 409–10. In each opinion, the court cited ear lier cases holding that the requirement of establishing “penetration” under the rape statute was “satisfied by showing any penetration, no matter how slight.” Sherbert , 531 S.W.2d at 637; see Vernon , 841 S.W.2d at 409–10 (citing Sherbert and other cases and concluding that “the phrase ‘penetration of the ... female se xual organ’ is fairly susceptible of an understanding which includes the kind of touching proven in this case.”). Further, Sherbert and Vernon are sufficiency-of-the-evidence cases, not charge-error cases. The Green court specifically distinguished sufficiency-of-theevidence cases from cases, like the case at bar, where the court is tasked with determining whether a trial court erred by including a definition of a statutorilyundefined term in the charge:–7– Furthermore, in response to the Stat e’s suggestion that the terms have acquired particular legal meanings in cases addressing the sufficiency of the evidence, we obs erve that, “[a]lthough anappellate court may articulate a definition of a statut orily undefined, common term in assessing the sufficiency of the eviden ce ... a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.” Green , 476 S.W.3d at 445 (quoting Kirsch v. State , 357 S.W.3d 645, 651 (Tex. Crim. App. 2012)). In addition to conflicting with Green , the majority’s conclu sion is contrary to persuasive post- Green precedent. Since Green issued, two courts have addressed whether definitions of penetration similar to the one at issue here were erroneously given. Both courts concluded that giving the definition was error but such error was harmless. Duarte v State , No. 13-16-00198-CR, 2017 WL 5184836 (Tex. App.— Corpus Christi–Edinburg Nov. 9, 2017, no pet.) (mem. op., not designated for publication); Trevino v State , No. 06-15-00165-CR, 2016 WL 2997392 (Tex. App.—Texarkana May 25, 2016, no pet.) (mem. op., not de signated for publication).
In Duarte , the charge included the following definition: One of the elements in this case is “penetration.” The burden is upon the State to prove each and every element of the offense, if any, beyond a reasonable doubt. You are instructed that penetration is complete, however, slight. Duarte , 2017 WL 5184836, at *7 (e mphasis added). Applying Green , the Duarte court concluded the trial court erred by including the definition because the definition was not statutorily defined. Id. The court then conduc ted a harm analysis and concluded Duarte wa s not egregiously harmedby the charge error. Id. at *7–8.–8– The Trevino court employed a similar analysis. In Trevino , the charge defined “penetration” as “penetration of any degree.” Trevino , 2016 WL 2997392 at *6. Applying Green , the court held that the trial court erred by including the definition in the charge, but the error was harmless. Id. at *6. Applying Green , Duarte , and Trevino to this case, the inclusion of the definition of “penetration” wa s error. However, as in th ose cases, that error was harmless because the defin ition was neutral and provide d a common-sense definition that “would not have impinged on the jury’s fact-finding authority.” See Trevino , 2016 WL 2997392, at *6. Further, the instruc tion did not focus the jury’s attention on a particular type of evidence. See id. ; see also Duarte , 2017 WL 5184836, at *8. The jury also had before it the sister s’ testimony, the testimony of multiple prosecution witnesses, and Turner’s denial of the allegations. The state of the evidence and the jury’s rejection of Turn er’s defensive evidence weighs against egregious harm. See Duarte , 2017 WL 5184836, at *8. In addition, no excessive emphasis was placed on the instruction by counsel at trial. I, therefore, agree that Turner has not shown egregious harm. See id. Because the majority relies on outdate d law, misapplies binding precedent from the court of criminal appeals, and di sregards analogous persuasive authority, I respectfully dissent from the majority’s conc lusion that inclusion of the penetration instruction in the charge was not error.–9– I concur, however, in the judgment a ffirming the trial court’s judgment.

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. P. 47.2(b) 191328CF.P05 /Robbie Partida-Kipness / ROBBIE PARTIDA-KIPNESS JUSTICE