Affirm and Opinion Filed July 12, 2013 

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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 Crimin al District Court No. 4 Dallas County, Texas Trial Court Cause No. F09-56346-K

OPINION Before Justices FitzGera ld, 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 poin ts of error. He compla ins that the jury charge was erroneous and that the tria l judge improperly commented on the weight of the evidence during voir dire. We affirm.
I. B ACKGROUND The evidence at appellant’s jury trial showed the following facts. On June 9, 2009, the thirteen-year-old compla inant spent the night at her grandm other’s house. Several other people were present; one of the complainant’s aunt s 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,–2– appellant went into her bedroom three diffe rent times and touched her on each of those occasions. She testified that on the first occa sion, appellant touched her vagina both over and under her shorts, and he moved his hand back a nd 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. Appe llant 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 ch ild. 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 punishme nt at three years’ imprisonment . Appellant timely appealed.
II. A NALYSIS 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 “knowingl y,” 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 instructi ons 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 in tent, with respect to a result of his conduct when it is his conscious objectiv e or desire to cause the result.–3– A person acts knowingly, or with knowle dge, with respect to a result of his conduct when he is awar e that his conduct is reasona bly 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, includi ng 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, th e 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 defe ndant guilty of INDECENCY WITH A CHILD BY CONTACT as char ged in the indictment. Appellant argues that the trial judge erred by defining “intentiona lly” and “knowingly” in terms of the result of an actor’s conduct because inde cency with a child is a “nature of the conduct” offense, meaning that the actor must intend to engage in the proscrib ed conduct rather than intend to bring about an y 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 st atute. 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, T EX
. P ENAL C ODE A NN . § 21.11(a)(1) (West 2011), and it defines “sexual conduct” as touching, including touc hing through clothing, any part of the genitals of the child “with the intent to arouse or gratif y the sexual desire of any person,” id . § 21.11(c)(1). 1 In other words, the offense consists of touching, includ ing 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 21.1 1, and they are not relevant to this case. Accordingly, we cite the current version of the statute.–4– of any person. See generally id . § 21.11(a)(1), (c)(1). Thus, th e only mental state expressly required by the statute is “inten t,” and the statute appears to re quire 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 touc hing itself. Logically, an actor cannot touch a child with the intent to arouse or gratify sexua l desire without also kno wingly 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 ha ve found such an intent [to arouse or gratify sexual desire] unless it believed that appellan t 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 i ndecency with a child are that the defendant “1) knowingly or intentionally; 2) engaged in sexu al contact; 3) with a child; 4) younger than seventeen years of age; 5) who was not the spous e 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 T EX
. P ENAL C ODE A NN . § 21.11, and the jury charge in this case did. Assuming without deciding that the trial ju dge erred by including the definitions of “intentionally” and “knowingly” in the jury ch arge 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 inst ructions. In assessing harm, we may consider (1) the charge itself, (2) the state of the eviden ce, including the contested issues and the weight of the probative evidence, (3) th e 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 arou se or gratify a person’s sexual desi re. The presence of the additional–5– phrase “intentionally and knowingly” would not have reduced the State’s burden of proof, so any harm caused by the inclusion would have been mi nimal. With respect to the evidence, the contested issue was the complain ant’s credibility, not appellant’s intent, knowledge, or lack thereof. Appellant directs us to no evidence pu tting his intent or knowledge at issue, and we have found none. The closing arguments focused on the complainant’s cred ibility. 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) (rejec ting claim of egregious harm from similar jury charge). Appellant argues that harm is shown by cer tain 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, expres sed some confusion about how to know whether alleged conduct gratified appellant’s sexual desi re, 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 judg e’s remarks had any influence in this case that turned primarily on the complainant’s credibility. Because the charge error, if any, did not cau se 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 tr ial 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 T EX
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. A NN . art. 38.05 (West 1979) (providing that,–6– before the return of the verdict, the trial judge shall not “make any remark calculated to convey to the jury his opinion of the cas e”). Appellant concedes that he did not object to the judge’s remarks of which he now complains, but he ar gues that no objection wa s required to preserve this kind of error. The State disagrees and argu es that appellant waived any error by failing to object. “Preservation of error is a syst emic 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 T EX
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. 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. Appellan t relies specifically on the following sentence
in Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012): “We concl ude 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 we ight 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 invol ves 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 conclu de 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).–7– Outside the context of the jury charge, the cour ts of appeals have cons istently 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 out side the jury-charge context. We overrule appellant’s second point of erro r because it was not preserved in the trial

court. III. C ONCLUSION For the foregoing reasons we affirm the trial court’s judgment.

Do not publish T EX
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. P. 47.2(b) 111679F.U05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–8– 

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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 da te, the judgment of the trial court is AFFIRMED

. Judgment entered July 12, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE