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, 
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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. 

Do not publish 

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

111679F.U05 

/Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JORGE ARREDONDO, Appellant 

No. 05-11-01679-CR 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 delivered by Justice FitzGerald. 

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