The court imposed a forty-year sentence for each of the assault counts and a twenty-year sentence for the indecency count.Ates v. State, No. 03-09-00501-CR, 2011 WL 350476 at, *1-3 (Tex. App.- Austin 2011, pet. ref'd). C. Petitioner's Grounds for Relief

The Third Court of Appeals of Texas affirmed Ates's convictions and denied his motion for rehearing on February 4, 2011. Ates v. State, No. 03-09-00501-CR, 2011 WL 350476 (Tex. App.—Austin Feb. 4, 2011, pet. ref'd). The Texas Court of Criminal Appeals refused Ates's petition for discretionary review on September 14, 2011.

Appellant also argues that the trial court erred egregiously in defining "intentionally and knowingly." According to Appellant, on a charge of aggravated sexual assault, the mental state definition should be limited to the nature of the conduct, not the result. Appellant cites to Belmares v. State, No. 03-11-00121-CR, 2011 Tex. App. LEXIS 9273, at **3-7 (Tex. App.—Austin Nov. 23, 2011 pet. ref'd) (mem. op., not designated for publication) and Ates v. State, No. 03-09-00501-CR, 2011 Tex. App. LEXIS 860, at **17-18 (Tex. App.—Austin Feb. 4, 2011, pet. ref'd) (mem. op., not designated for publication) in support of his argument that there is a split of authority on this issue. Because Appellant did not object at trial, reversal is warranted only if the error is so egregious and created such harm that Appellant did not have a fair and impartial trial.

However, this Court has recently held, in an unpublished opinion, that because sexual assault is a "conduct" offense, it was error for a jury charge to define "knowingly" in terms of the "result of conduct." See Ates v. State, No. 03-09-00501-CR, 2011 Tex. App. LEXIS 860, at *17-18 (Tex. App.—Austin Feb. 4, 2011, pet. ref'd) (mem. op. on reh'g, not designated for publication). The court of criminal appeals has not squarely addressed this issue.