No. 05-09-00815-CR
Opinion issued June 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F07-58353-YI.
Before Chief Justice WRIGHT and Justices FRANCIS and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
A jury convicted Jose Arriaga of sexual assault of a child younger than seventeen years of age and assessed his punishment at twelve years' imprisonment. In his appeal, appellant raises a sole issue: whether the trial court reversibly erred by instructing the jury on the "appellate sufficiency standard" that any penetration, however slight, will sustain a verdict of guilty. Concluding no reversible error is shown, we affirm.
Factual and Procedural Background
Appellant is the complainant's stepfather. At the time of the trial, the complainant was seventeen years old. When the complainant was six years old, her mother began seeing appellant while they all lived in Mexico. The complainant called appellant "Daddy," and they all eventually moved from Mexico to Dallas, Texas. Appellant and the complainant's mother later had two other children, a boy and a girl. As the complainant got older, appellant began asking her if she had a boyfriend. The complainant said she did not have a boyfriend. Appellant said he would "teach" her what a boyfriend does, and he would be her boyfriend. Appellant did not allow the complainant to date, and he began sexually abusing her by kissing her on the mouth and fondling her breasts while the complainant's mother was not at home. Appellant told the complainant not to tell her mother what he was doing to her, but insisted it was okay for him to teach her because he was her stepfather. The sexual abuse escalated with appellant showing the complainant his penis. When the complainant was fourteen years old, appellant exposed his penis to her, guided her hand with his hand to touch his penis, and made her "masturbate him." That conduct was repeated several times, both at home and in appellant's car. Appellant urged the complainant to have oral sex with him, but she successfully declined. The abuse escalated further when appellant disrobed himself and removed the complainant's clothing, got on top of her, and told her to "open her legs." The last time appellant sexually abused the complainant was on September 25, 2007, the date the complainant's younger brother was born. Appellant persuaded the complainant to sleep with him, claiming he was lonely. Appellant disrobed, got on top of the complainant, and began to make moaning noises. Appellant kissed the complainant and fondled her face and breasts, then engaged in intercourse with the complainant. Appellant tried to open the complainant's legs and put his penis inside her vagina. The complainant said her vagina hurt, and she felt "a little piece" of appellant's penis inside her on two separate occasions. The complainant told her cousin Ana about the sexual abuse. After the complainant repeated the allegations to Ana's mother, Ana's mother called the police. Appellant was arrested for sexual assault. A physical examination of the complainant showed no physical signs of sexual abuse. At trial, Ana confirmed the complainant's outcry to her, as did Ana's mother. Ana also corroborated the complainant's claim that appellant sent her inappropriate text messages. The investigating officer and an employee of the Child Advocacy Center both testified about the complainant's detailed account of the sexual abuse. They explained that the complainant did not immediately make an outcry because she was afraid her mother would not believe her. The defense presented no witnesses. However, through its cross-examination, the defense claimed appellant did not have the opportunity to be alone with the complainant, and claimed the complainant felt animosity toward appellant because of his strict discipline. The trial court instructed the jury, in relevant part, that "`penetration' is complete however slight." Appellant did not object to the trial court's charge. After the jury returned a guilty verdict, the State presented no further evidence. The complainant's mother then testified about appellant's eligibility for probation. She also told the jury that both she and the complainant had been going to counseling, and that appellant's absence created a financial hardship for her. The jury assessed appellant's punishment at twelve years' imprisonment. This appeal ensued. Issue on Appeal
Appellant raises a single issue: that the trial court reversibly erred by instructing the jury on the "appellate sufficiency standard" that any penetration, however slight, will sustain a verdict of guilty. Appellant claims he did not waive error by failing to object, and that such failure is relevant only to the degree of harm required to be shown under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Appellant focuses on the complainant's words "tried to separate my legs" and "he tried to put the tip of his penis in me," claiming that but for the erroneous instruction, the jury may have acquitted him. Appellant argues penetration was a crucial element of the indicted offense, the complainant's testimony about penetration was "equivocal," and that the court's instruction "crossed the line" and directed the jury's attention to a particular piece of evidence for special attention. Appellant claims the instruction improperly informed the jury of the minimum amount of evidence from which the jury could find the element of penetration. Although appellant correctly points out contrary authority holding that the "penetration is complete however slight" instruction is proper, he claims such authority is of "dubious precedent" because none of the cases discusses the limitation on non-statutorily based definitions as set out in Bartlett v. State, 270 S.W.3d 147, 151-52 (Tex. Crim. App. 2008), and Watts v. State, 99 S.W.3d 604, 613 (Tex. Crim. App. 2003). The State argues the instruction was a proper statement of the law rather than a comment on the weight of the evidence. Moreover, says the State, even if the instruction improperly singled out the issue of penetration, appellant did not suffer egregious harm because of it. Standard of Review
A court of appeals applies a two-step process in analyzing a complaint of jury charge error. First, an appellate court must determine if an error actually exists in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Second, if error is found to exist, the court must then determine if the error caused sufficient harm to warrant reversal. Almanza, 686 S.W.2d at 171. Preservation of jury charge error is an issue only when assessing harm under the second step. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. Where, as here, there is no objection, the conviction will not be reversed unless the jury charge resulted in "egregious harm" to the appellant. Id. at 743-44; Almanza, 686 S.W.2d at 171. Analysis
Texas courts have consistently held that a jury instruction stating "penetration is complete however slight" is a correct statement of law and a proper instruction in sexual assault cases. See Sherbert v. State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976) (citing Henry v. State, 132 Tex. Crim. 148, 103 S.W.2d 377, 380 (1937) which held the jury should have been charged that "the act of intercourse means any degree of penetration, however slight, of the person of prosecuting witness by defendant"); see also Wilson v. State, 905 S.W.2d 46, 48-49 (Tex. App.-Corpus Christi 1995, no pet.); Rawlings v. State, 874 S.W.2d 740, 744 (Tex. App.-Fort Worth 1994, no pet.); Zuniga v. State, 811 S.W.2d 177, 180 (Tex. App.-San Antonio 1991, no pet.); Galloway v. State, 716 S.W.2d 556, 557 (Tex. App.-Waco 1986, no pet.). Nevertheless, appellant argues such precedent is "dubious" in light of Bartlett and Watts. See Bartlett, 270 S.W.3d at 151-52; Watts, 99 S.W.3d at 613. After reviewing those cases, we conclude they are distinguishable because (1) the cases do not deal with jury instructions in a sexual assault case, and (2) the cases neither control our case nor render inapplicable the precedent holding that the jury instruction given in our case is proper. Bartlett concerns an instruction informing the jury they could consider evidence of appellant's refusal to take a breath test in his DWI trial. In Bartlett, the court of criminal appeals held the "breath test" instruction commented on the weight of the evidence and was impermissible. See Bartlett, 270 S.W.3d at 154. Bartlett is distinguishable because the refusal to take a breath test is not an element of the offense of DWI that must be proven beyond a reasonable doubt. Penetration is one of the elements of the charged offense of sexual assault of a child that must be proven beyond a reasonable doubt. See Tex. Penal Code Ann. §§ 22.011(a)(2)(A), 49.04(a) (Vernon 2003 Supp. 2009). Likewise, Watts is distinguishable because it concerns a trial judge directly addressing the jury, before the parties had rested and before she read the charge to the jury, on a specific application of law to facts that the judge quoted from a different judicial opinion. In Watts, appellant had been convicted of discharging raw sewage into or adjacent to water in the state. The trial court's instruction in this case did not direct the jury to a specific conclusion regarding a contested fact issue. Nor did it single out a particular piece of evidence. Moreover, the only evidence about penetration came from the complainant. The defense presented no contrary evidence. In its cross-examination of the State's witnesses, the defense focused on appellant's lack of opportunity to be alone with the complainant and the complainant's animosity against appellant's strict discipline. The defense did not focus on penetration of the complainant's vagina by appellant's penis. We conclude no error is shown. We resolve appellant's sole issue against him. We affirm the trial court's judgment.