### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 23

- 00101

- CR

Jason James Robinson , Appellant

v. The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 79219 , THE HONORABLE PAUL L. LEPAK , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Jason James Robinson challenges his conviction for sexual assault of a
child. Tex. Penal C o de § 22.011(a)(2). After the jury found him guilty , the trial court assessed punishment at twelve yea rs ’ imprisonment. Id. § 1 2.33

. Robinson contends in his sole issue on appeal that the trial court erred by not including , on its own initiative , a definition for “p enetration ” in the jury charge. We will affirm the trial court ’ s judgment of conviction.

BACKGROUND 1
Tris ha Rain 2 testified t hat when she was fifteen, she reconnected with Robinson
over social media. Robinson was a childhood friend that Rain thought of like an older sibling

. Ro bi nson was nineteen years old at the time. A couple weeks after Rain reconn ected with

1 We recite only the relevant facts neces sary to resolve the pr e sented issue

.
2 Because the victim in this case was a minor when the offense was committe d , we refer to her using a pse udonym

. See Tex. R. App. P . 9.10(a)(3).2 R obinson, Rain ’ s grandmother drove her to Robinson ’ s house . Rain believed she would be helping Robinson w ith some work around the house and catch ing up
. Rain testified that Robinson took her to a bedroom and alternated between speaking with he r and workin g.
Robinson expressed that he wan ted to kiss Rain multiple times

. Rain told him “ no, ” but eventually she became “ annoyed at the fact that he kept mentioning it, ” and “ eventually gave in

. ”
Rain testified that Robinson did not stop at kissing , s tar ted tou ching her hips, and e x pressed that
he wanted to have sex with her . Rain told him “ no
. ” Rain testified that Rob inson removed her shorts, move d her underwear to the side, and penetrated her vagina with his penis. Rain was in pain and began to c r y. Robins on asked her if she was ok ay and after Rain told him that she was

not ok ay, he stopped. Rain called her grandmother to pick her up. Ra in testified that s he told

two friends about the assault a couple days later. Rain told her grandmother abo ut a week la ter.
Rain ’ s grandmother took her for a medical exam ination. Rain ’ s grandmother reported the assault

t o the police. On cross examination, defense counsel asked Rain about a medical report that
included a note that stated that Rain ’ s underwear h ad stayed on and that Rain did “not think there was any penetration

. ” Rain explained that the note was in error and that she never told the nur se there was no penetration. Rain testified that there was penetration and that she told a medical profession al at the cl inic that she had experienced pain in her vagina. W hen asked if the pain was caused by Robinson ’ s penis penetrating her vagina, she answered , “ yes
. ”
D uring deliberations, the jury sen t a note to the trial judge asking for “ the
el ements that th e S tate must prove ” and stating , “Contradition [sic] of Part II in the charge penetration by ‘Any Means

. ’” 3 A f ter reaching an agr eed answer with the parties, t he trial court

3 Part II of the charge was titled , “ Sexual Assault o f a Child , ” a nd instructed that:3 respon de d that it could not answer the question and that the jury had all the evid en c e and th en
referred the ju r y to the charge . T he jury returned a guilty verdict

. Foll owing a sentencing
hear ing, the trial court imposed a punishment of twelve years ’ imprisonment

. T his appeal followed.

DISCUSSION On appeal, R obinson contends that th e trial cour t erred by not including , on its

own initiative , a definition for “ p enetration ” in the jury charge.
J

ury charge error claims are reviewed un d er a two

- pronged test in which the

app ell ate court mus t determine : (1) whet her the ch arge was erron eo us , and (2) if there was an

error, whether the error was h armf ul to t he defendant. Olivas v. State , 202 S.W.3d 13 7, 143

– 44 (Tex. Crim. App. 2006) ; A lma nz a v. State , 686 S. W. 2d 157, 171 (Tex. Cr im. App. 1985 ) (op. on rehearing)

. A trial court err s if it does not pres e nt the jury with “ a written charge distinctly setting forth the law applicable to the case

. ” Tex. Code Crim. Proc. art. 36.1 4 ; see also Be l l

v. State , 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) ( “ A trial judge is oblig ated to instruct on
th e law applicab l e to the case, for the trial judge is ultimately responsible for the accuracy of the jury charge and accompanying instructions. ” (cleaned u p )). A trial court ’s charge may not

express any opinion on the weight of the ev idence, sum ma rize test imony, discuss the facts , or

us e any argumen t calculated to arouse the sympathy or excite the passions of the jury. Tex.
Code Crim. Proc. art. 36.1 4

. A trial court “ must instruct on statutorily defined terms as the law

A per son commits the offense of Sexual Assault of a Child if the person, regardless of wheth er the person knows the age of the child at the time of the offense, intentionally or knowingly causes the penetration of the sexual organ of a child by any means. “ Chi ld ” means a person younger than seventeen (17) years of age.4 applicable t o the case. ” Celis v. State , 416 S.W

. 3d 419, 433 (Tex. Crim. App. 2013)

. However,

“ it is generally impermissible to instruct on terms not statutorily defined, and the trial c o urt instead must permit the jury to construe them according to the rules of gra mmar and common

usage. ” Id. “ [ A ] n e x ception to that genera l rule exists for terms which have a known and established legal meaning, or which have acquired a peculiar and ap pr o priate meaning in the law,
as where the words used have a well

- known common law meaning. ” Green v. St ate , 476 S.W.3 d 440, 445 (Tex. Crim. App. 2015) (cleaned u p). Here, Robinson contends that the term “penetration ” falls within the exception t o
the r ul e that a term that is not statutorily defined must not be defined for the jury. Robinson
contends t hat because there i s an established definition for “ penetration ” used i n legal sufficiency analysis , the definition is also required to be included in t h e jury charge. However, the Court of Criminal Appeals has previously considered and rejected
th e s e arg um ent s and held that defining the term “ penetration” in a jury charge is trial court error

. S

ee id. ( agreeing with appellate co urt that “penetration” is com m on te rm that ha s not acquired technical meaning and should be interpr eted by jury according to commo n usage , and holdi n g
that trial court provi ding definition was improper comment on weight of evidence ). 4 Thus, we
conclude that the trial cour t did not err by not including a definition of “ penetration ” in the jury charg e.

4 Robinson c ontends in his reply brief that Henry v. Sta te , 103 S.W.2d 377 (1937) , should control because it predate s Green and because Green did not expressly overrule Henry. Se e Green , 47 6 S. W.3d at 440

– 46

. In Henry , the C o urt of Criminal A p peals he ld that an instruction defining an “ a ct of intercourse ” as “ any deg ree of p enetration, however slight, of the person of prosecuting witness by defendant , ” should have been given to the jury. H e nry , 103 S.W.2d at 380. H owever, the Court ’ s analysis in Henry did not consider the jury charge is sue under the fram ework of A rt icle 36.1 4 of the Cod e of Criminal Pr ocedure

. Thus, Green , which analyzed the issue under the requireme nts of Article 36.14 , i s t he proper c ontr olling precedent for this case.5 Because we have concluded ther e is no trial court e rror , we do not address the harm analysis in this case

. See Tex. R. App. P. 47.1 ( “ The court of appeals must hand down a

w rit ten opin ion that is as brief as practicable but that addresses every issue raised a nd neces sar y
to f inal disp osition of t he a ppea l .”)

. We overrule Robinson’s sole issue on ap peal

.

CONCLUSION
Because we overruled Robinso n ’ s so le issue , we affirm the trial court ’ s judgment
of conviction.

_________________ _________________________ Darlene Byrne , Chief Justice
Befo re Chief Justi ce Byrne , Justic es Kelly and Theofanis
Affirmed
Filed: August 2 9 , 2 023
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