Green, Joseph Lester
PD-0738-14
| Tex. App. | Sep 3, 2015Background
- This amicus brief (District Attorney, 105th Judicial Dist.) responds to Green v. State, where the Fourth Court of Appeals held that trial court definitions of “penetration” and “female sexual organ” in an aggravated sexual-assault jury charge were improper.
- The issue is whether a trial court may supply charge definitions for anatomical/sexual-assault terms that the Penal Code does not expressly define.
- The brief argues these terms are technical, have long-established legal meaning in Texas sexual-assault and historic rape cases, and therefore may be defined by the court to avoid arbitrary jury application.
- The amicus emphasizes precedent holding that slight penetration (including beneath the folds of external genitalia) can satisfy penetration and that jurors may not have common familiarity with the technical distinctions.
- Policy concerns: leaving these terms undefined risks inconsistent jury verdicts and large sentencing disparities (from misdemeanor to life imprisonment) depending on juror interpretations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court may define statutorily undefined terms in jury charge (e.g., "penetration", "female sexual organ") | The State/Amicus: such terms are technical, have established legal meaning, and should be defined to ensure uniform application | Fourth Ct. of Appeals/Green: defining those terms in charge was improper and became a comment on weight of evidence | Court of Criminal Appeals review granted; amicus argues error in appellate decision and supports allowing definition |
| Whether "penetration" requires more than mere external contact | State/Amicus: penetration includes tactile contact beneath folds of external genitalia; slight penetration suffices | Opposing view: jury should decide based on common meaning; no judicial technical definition | Amicus relies on precedent holding slight/beneath-fold contact can constitute penetration |
| Whether jurors can be presumed to know technical anatomical distinctions | State/Amicus: average juror likely lacks familiarity; risk of arbitrary, inconsistent application without definition | Defendant: common parlance suffices; courts generally should not define common terms | Amicus contends risk of arbitrary application justifies court definition in sexual-assault context |
| Whether defining these terms affects sentencing and fairness | State/Amicus: divergent juror definitions can change offense classification and punishment drastically | Defendant: leaving to jury fits role of fact-finder; definitions may improperly instruct on evidence weight | Amicus argues definitions promote uniformity and protect against arbitrary disparities |
Key Cases Cited
- Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) (trial courts must give statutory definitions; nonstatutory terms generally left to common meaning unless technical)
- Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (courts may not define words that lack established technical meaning; consider risk jurors may arbitrarily apply definitions)
- Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) (holding penetration occurs with tactile contact beneath folds of external genitalia)
- Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1983) (no definition required where word has common ordinary meaning jurors can be presumed to know)
- Flannery v. State, 117 S.W.2d 1111 (Tex. Crim. App. 1938) (approved jury instruction that slightest penetration of vulva or labia is sufficient)
- Mirick v. State, 204 S.W. 222 (Tex. Crim. App. 1918) (early precedent recognizing slight penetration can constitute rape)