Opinion
Nos. 05-04-00240-CR, 05-04-00241-CR
Opinion issued November 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73483-Ps and F01-73484-PS. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Lupe Mendoza on two charges of aggravated sexual assault of a child under fourteen years of age and sentenced him to ten years in prison. In four points of error, appellant complains about the factual sufficiency of the evidence and charge error. The facts of this case are known to the parties, and we do not recite them in detail here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgments. Appellant was indicted on charges that he penetrated the sexual organ of A.R. with his finger and penis. A.R., appellant's stepdaughter, said appellant began sexually abusing her when she was nine years old. The abuse began with appellant kissing her on the mouth, touching her breasts, and putting his finger in her "private part." Eventually, appellant had sexual intercourse with A.R. At trial, A.R. was seventeen. In his first point of error, appellant challenges the factual sufficiency of evidence to support only the conviction for digital penetration (No. 05-04-00240-CR). He complains that A.R. failed to "sufficiently communicate to the jury that penetration occurred with respect to a part of the body within the meaning of the statute." Appellant asserts that A.R. used childlike terms, such as "private part," without ever identifying what "private part" meant. The record does not support appellant's claim. The standard of reviewing the factual sufficiency of the evidence is well established. See Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.)). At trial, A.R. testified appellant "put his fingers in me." The State immediately asked A.R. to be more specific, and A.R. replied, "He put it in my vagina." In addition to this testimony, A.R. testified at various times that appellant put his finger in her "private part." A.R. also testified that "private part" referred to her vagina. We conclude the evidence is factually sufficient to establish that appellant penetrated A.R.'s sexual organ with his finger. We overrule the first point of error. In his second point of error (05-04-00240-CR) and first point of error (No. 05-04-00241-CR), appellant argues the trial court erred by failing to limit the conduct elements in the jury charge. In particular, he argues that aggravated sexual assault is a nature of conduct offense, and the trial court should have limited the definitions of intentionally and knowingly accordingly. Instead, he asserts, the trial court "simply set out the full definitions of intentionally and knowingly" from section 6.03 of the Texas Penal Code. Appellant did not object to the charge at trial. Three "conduct elements" can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex Crim. App. 1989). A particular offense may contain one or more of these conduct elements. Id. When an offense is either a result oriented or nature of the conduct offense, the court should limit the statutory definitions of knowingly and intentionally to the culpable mental state required. Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex.App.-Corpus Christi 1989, no pet.); Murray v. State, 804 S.W.2d 279, 281 (Tex.App.-Fort Worth 1991, pet. ref'd). However, when an offense, such as aggravated sexual assault, is not clearly a result oriented or nature of the conduct type offense, it is not error for the trial court to submit both in its definitions of knowingly and intentionally. Saldivar, 783 S.W.2d at 267 (citing Bosier v. State, 771 S.W.2d 221, 225 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). Submitting the full definitions of knowingly and intentionally allows the jury to consider both the nature of an assailant's conduct as well as the result of his conduct. Id. We conclude that until the Texas Court of Criminal Appeals classifies aggravated sexual assault as either a result oriented crime or nature of the conduct offense, it is not error for the trial court to submit the complete definition of intentionally and knowingly. Even if we assumed the charge was erroneous, we conclude appellant was not egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). In his brief, to show egregious harm, appellant states merely that the jury was confused. He does not present any explanation, argument, or analysis suggesting how the jury could have been confused or misled by the charge given in this case. Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused. Under the application paragraph in No. 05-04-00241-CR, the jury had to find, beyond a reasonable doubt, that appellant did "knowingly and intentionally cause the contact or penetration of the female sexual organ of [A.R.]" with his sexual organ, before it could return a guilty verdict. In No. 05-04-00240-CR, the application paragraph required the jury to find, beyond a reasonable doubt, that appellant did "knowingly or intentionally cause the penetration of the female sexual organ of [A.R.]" by his finger, before it could return a guilty verdict. Each paragraph required the jury to find appellant engaged in the conduct with the requisite intent. Moreover, intent was not an issue at trial; rather, appellant denied the incidents occurred. We overrule the points of error. In his third point of error (05-04-00240-CR) and second point of error (05-04-00241-CR), appellant complains the trial court erred by instructing the jury regarding the availability of good conduct time because he was not eligible for good conduct time. The Texas Court of Criminal Appeals has concluded that a trial judge, who follows legislative dictates and instructs the jury according to article 37.07, section 4(a) when the defendant is not eligible, does not commit statutory error. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). We overrule the points of error. In his fourth point of error (05-04-00240-CR) and third point of error (05-04-00241-CR), appellant complains the trial court erred by instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." Appellant argues this instruction provides a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously decided this precise issue against appellant. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). Although appellant expresses disagreement with the O'Canas opinion, we do not share similar concerns. We overrule the points of error. We affirm the trial court's judgments.