Concurring and Dissenting Opinion 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 TEXAS, 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 affirmation of the trial court’s judgment, I 

disagree with the majority’s conclusion that the trial court did not err by giving the 

instruction on “penetration.” Because I conclude 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 pertinent language regarding aggravated 

sexual assault of a child: 

A person commits the offense of Aggravated Sexual Assault of a child 

if the person, regardless of whether the person knows the age of the 
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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]enetration 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. Nonetheless, 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 established 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 female sexual organ 

could reasonably be regarded by ordinary English speakers as more 

intrusive than contact with the outer vaginal lips and is complete, 

however slight, if any. Touching beneath the fold of the external 

genitalia amounts to penetration within the meaning of the aggravated 

sexual assault statute. 
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Green v. State, 434 S.W.3d 734, 737 (Tex. App.—San 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 established that the term had acquired a technical or 

particular legal meaning applicable 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 considered 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 established 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 “penetration.” 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 term is considered the law applicable to the 

case under article 36.14. See id. And each instruction includes the same language 

that penetration “is complete, however slight.” I would conclude that Green controls 
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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 language at issue here “served as an 

instruction on the degree of penetration required under the aggravated sexual assault 

statute” rather than providing 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 instruction deemed erroneous in Green. Although the instructions in 

Green included more language than the penetration instruction at issue here, the 

Green court concluded the entire instruction was erroneous because it defined a 

term—penetration—that is not statutorily 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 than the instruction at issue here because they included 

more words, but that does not make the penetration 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 defining “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-
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09-00815-CR, 2010 WL 2404693 (Tex. 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 Court 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 the 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 established 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 
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whether defining “penetration” in a charge constitutes error. 103 S.W.2d at 380. 

Rather, the Henry court determined, without analysis, that the charge’s definition of 

“act of intercourse” was properly submitted: “By the term ‘Act of intercourse’ as 

used herein is meant any degree of penetration, however slight, of the person of 

prosecuting witness by defendant.” Id. 

In Sherbert and Vernon, penetration was not defined 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, the 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 earlier 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 sexual 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: 
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Furthermore, in response to the State’s suggestion that the terms have 

acquired particular legal meanings in cases addressing the sufficiency 

of the evidence, we observe that, “[a]lthough an appellate court may 

articulate a definition of a statutorily undefined, common term in 

assessing the sufficiency of the evidence ... 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 conclusion 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 designated 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 (emphasis 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 conducted a harm analysis 

and concluded Duarte was not egregiously harmed by the charge error. Id. at *7–8. 
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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” was error. However, as in those cases, that error was 

harmless because the definition was neutral and provided 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 instruction 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 sisters’ 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 Turner’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 outdated law, misapplies binding precedent 

from the court of criminal appeals, and disregards analogous persuasive authority, I 

respectfully dissent from the majority’s conclusion that inclusion of the penetration 

instruction in the charge was not error. 

 
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I concur, however, in the judgment affirming the trial court’s judgment. 

Publish 

TEX. R. APP. P. 47.2(b) 

191328CF.P05 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE