Cornet v. State
Cornet v. State
Opinion of the Court
OPINION
announced the judgment of the Court and delivered an opinion,
The appellant was charged with three counts of aggravated sexual assault of an eight-year-old child, his step-daughter, for allegedly digitally penetrating her genitals,
We granted the appellant’s petition for discretionary review to address three issues with respect only to his conviction of the count pertaining to the digital penetration of the child’s sexual organ: (1) whether the medical-care defense is available when the accused, a layperson with respect to medical science, is attempting to ascertain information regarding the existence of a relevant medical fact, (2) whether the doctrine of confession and avoidance applies to the medical-care defense, such that a defendant attempting to claim the defense must “essentially admit” to each element of sexual assault, including digital penetration of the sexual organ, and (3) if so, whether the defensive evidence in this case amounts to a concession of the elements of the offense, thus rendering the trial court’s refusal to instruct the jury on the defense erroneous. We respond to all three issues in the affirmative, and therefore reverse the judgment of the court of appeals.
I. FACTS AND PROCEDURAL POSTURE
In June 2006, forensic interviewer Laura Moreno-Frescas conducted a video-taped interview with eight-year-old K.M., on suspicion that the child had been sexually abused by her mother’s first husband, Brian Valentine. During the course of the interview, K.M. made various statements causing Moreno-Frescas to suspect that she may have also suffered sexual abuse at the hands of her mother’s current husband, the appellant. Specifically, K.M. told Moreno-Frescas that the appellant had, on one occasion, told K.M. to sit on his face, and had thereupon made oral contact with her anus. K.M. also drew a picture illustrating what she alleged had transpired, and she went on to state that the appellant had, on one occasion, showed her various “sex toys” and that he had placed one between her legs so that she could “feel the vibration.”
A witness to this interview, Detective Jaime Terrazas, informed K.M.’s mother and the appellant of what K.M. had alleged. Upon learning that he was suspected of sexually assaulting K.M., the appellant voluntarily participated in a noncustodial interview with Detective Terra-zas. The appellant’s responses were reduced to a formal written statement, which, in relevant part, reads:
*219 I suspected my step[-daughter] had problems because she had devulged [sic] to me that she had sex with both of her brothers, which caused me great concern. [0]n one particular incident, I had physically examined my step daughter because she [said she] had secrets which I believed were sexual in nature ... This made me want to exam [sic] her to see if she had any physical evidence of sexual contact or injury.
I layed [sic] her down on the bed in my master bedroom and proceeded to exam [sic] her ... I had spread her legs while she was on her stomach while I opened her buttocks to check her anus and labia. I visually inspected her genetal [sic] area and remember my fingers getting wet which she may have thought was my licking anus [sic]. My fingers made contact with her anus but it was only during the time that I was examining her ...
My fingers also made contact with her labia, which I spread to see if her hymen was still intact because at her age, I did not know if it would have been developed. After examining the child, I noticed that she did not have a hymen, which I did not know if it had been developed or had been broken. The examination was inconclusive and her anus did not appear to be streached [sic] [or] ripped.
The appellant signed this statement, and he placed his initials upon it in several places to signify that it comported with his understanding of the events.
A. At Trial
The appellant was charged in a three-count indictment with aggravated sexual assault of a child. One of the counts alleged that he caused the penetration of KM.’s vagina with his finger (“Count I”), one alleged that he caused the penetration of her anus with his finger (“Count II”), and one alleged that he caused her anus to come into contact with his mouth (“Count III”). At the close of the State’s evidence at the ensuing jury trial, the appellant moved for a directed verdict with regard to all three charges. The State made the following argument against that motion, referring to the appellant’s statement to Detective Terrazas: “In the defendant’s own words, your [sic] Honor, he says he spread her labia.... I have some very graphic case law that indicates once you break the plane of the labia ... that equals penetration. In his own words he says that.” The trial court ultimately granted a directed verdict with respect to Count II, but refused the appellant’s motion for a directed verdict on Counts I and III.
The appellant then took the stand to testify on his own behalf. On direct examination, when asked if he had ever “insert[ed][his] finger in the vagina of [his] step-daughter,” the appellant responded, “No. I have no business doing that.” He was also asked whether he had “ever touchfed] any areas [he] would consider her private parts”; but before the appellant could respond, this question was immediately rephrased to inquire whether he had “invadefd] any of those areas.” The appellant then responded, “No, I did not have to, I was looking for external signs of any injuries.” The appellant maintained that he had “spread her cheeks ... to look to see if there was any swelling, any scarring, any indication externally that she had been injured.”
During the jury-charge conference, the appellant requested that the jury be instructed on the medical-care defense to aggravated sexual assault. The court, apparently reading from the litany of medical professions described in Sections
B. On Appeal
On appeal, the appellant complained that the trial court erred in refusing to instruct the jury on the defense of medical care. In an unpublished opinion, the court of appeals made a two-pronged ruling. First, while admitting that the case presented an “extremely close call,”
II. ANALYSIS
Sections 22.021(a)(1) (B) (i) and 22.021(a)(2)(B) of the Texas Penal Code state that a person commits aggravated sexual assault, a felony of the first degree, if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age.
A. Availability of the Defense
We turn first to the holding of the court of appeals that the appellant’s conduct did not fall within the purview of the defense because “the statute is not meant to apply ... in cases ... when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the
Nearly two decades ago, in Boykin v. State, this Court declared that its ultimate goal in the practice of statutory interpretation is to “effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.”
If, on the other hand, an ambiguity or absurdity arises, we are permitted to peer behind the statutory text and employ limited extra-textual sources in adopting an interpretation that best honors the will of the Legislature. These include the “object sought to be attained; circumstances under which the statute was enacted; legislative history; common law or former statutory provisions, including laws on the same or similar subjects; consequences of a particular construction; administrative construction of the statute; and title (caption), preamble, and emergency provision.”
i. Non-Medical Professionals
Turning first to the question of whether non-medical professionals are precluded from claiming the defense, we note that, while the court of appeals did mention that the medical-care defense sometimes encompasses “treatment of infections or injuries by the parent,” it went on to cast doubt on the appellant’s claim to the defense, observing that he lacked “medical education, training, or experience.”
Furthermore, we have said that when the Legislature desires to convey a certain level of specificity within a statutory provision, it knows how to do it.
ii. “Mere” Inspections
Next we address the question of whether the defense is available when the penetrative conduct consisted of a “mere” medical inspection. Again we start with the particular language of the statute itself, asking whether the phrase “medical care” plainly encompasses such inspections. We have often turned to dictionaries as an aid in discerning what the Legislature intended in adopting particular language in a statute and whether its meaning is plain.
Webster’s Third International Dictionary defines “medical” as “of, relating to, or concerned with physicians or the practice of medicine[.]”
Having attained some understanding of the modifier “medical,” we must be cautious in searching for meaning in the word “care” that we limit ourselves to definitions of the word that make sense in the context of the phrase “medical care.” To that end, we find that Webster’s relevantly defines “care” as “chaRge, supervision, management.- responsibility for or attention to safety and well-being <under a doctor’s 5- [.] ”
The State opposes the inclusion of medical inspection within the contours of the defense, asserting that the plain meaning of “medical care” adopted in the statute is, according to the State’s preferred dictionary, “medical treatment.”
iii. The Appellant’s Claim to the Defense
Measured by these criteria, and putting aside for the moment the question (to
B. Confession and Avoidance
We turn next to the holding of the court of appeals that the medical-care instruction is inappropriate “when the defendant’s defensive evidence fails to essentially admit to every element of the offense.”
A defense subject to the doctrine of confession and avoidance is one in which “a defendant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect.”
The appellant points out, nevertheless, that this Court recently pronounced, in Juarez v. State, that “the doctrine of confession and avoidance does not apply to all defensive issues.”
The appellant furthermore questions the consistency of this Court’s holdings, arguing that we ignored the doctrine of confession and avoidance, specifically as it applies to self-defense, in Martinez v. State,
We turn lastly to the holding of the court of appeals that “none of the evidence presented at trial shows that Appellant admitted to the offense.”
With respect to “penetrate,” as the court of appeals correctly noted, this Court has held that penetration occurs when there is “tactile contact beneath the fold of complainant’s external genitalia,” and that it is not inaccurate “to describe [conduct] as a penetration, so long as [the] contact with [the complainant’s] anatomy could reasonably be regarded by ordinary English speakers as more intrusive than contact with her outer vaginal lips.”
As for “admitting” conduct under the doctrine of confession and avoidance, it is sufficient that the defendant point to defensive evidence, originating in his own statements, such that a trier of fact could reasonably infer that each element of the offense has been satisfied.
In the instant case, there are two relevant pieces of evidence, each originating in the appellant’s own statements, that tend to show the appellant’s admission to the commission of penetration: his written statement, and the testimony he gave at trial. In his written statement, the appellant admitted that “[his] fingers also made contact with her labia, which [he] spread to see if her hymen was still intact.” He also stated that he “remembered [his] fingers getting wet.” At trial, the appellant testified that he had “spread her cheeks” in order to ascertain whether or not she had been sexually abused. We think that these statements, taken together, constitute evidence sufficient to establish confession in the context of confession and avoidance — that is, we think it would be reasonable for a fact-finder to infer from the appellant’s defensive evidence that he admitted to penetration as it is described in Vernon. Specifically, a fact-finder could reasonably infer that his fingers were wet because he “reached beneath the natural fold of skin” of KM.’s labia and entered “an area of the body not usually exposed to view, even in nakedness”;
The State argues to the contrary that the appellant vehemently denied penetration at trial, and that such denial precludes him from satisfying the requirement of confession. While we decline to address the latter part of this argument, we take issue with its premise. We are not convinced that the appellant denied penetration at all, in the legal sense of the word. A review of the record establishes that, when asked if he had ever “inserted] [his] finger in the vagina of [his] stepdaughter,” the appellant responded, “No. I have no business doing that.” As noted above, vaginal penetration is not the legal standard prescribed in the statute — penetration of the “sexual organ” is. This testimony, therefore, is not necessarily a denial of the element of penetration; it is more plausibly understood as a denial by the appellant of inserting his finger past the outer and inner labia and into the child’s vaginal canal. The element of penetration may be satisfied by less than this.
Furthermore, the appellant was also asked, “[D]id you ever touch any areas that you would consider her private parts? Did you ever invade any of those areas?” He again responded “No, I did not have to, I was looking for external signs of any injuries.” The appellant’s negative response to this question is somewhat ambiguous — did he deny “touching]” the child’s “private parts,” or did he deny “in-vad[ing]” them; or did he deny both acts? And what, specifically, did the appellant interpret the prosecutor to mean by her “private parts”? Even if the jury believed the appellant was denying “invad[ing]” the child’s “private parts,” it could still find that the appellant did not deny that he had committed penetration in the legal sense. The term “invade” carries a much different common meaning than the term “penetrate”;
For the foregoing reasons, while we agree with the court of appeals that the issue presents an “extremely close call,”
III. CONCLUSION
In light of our resolutions of the three foregoing issues, we hold that the court of appeals erred to affirm the trial court’s decision to deny the appellant a jury instruction regarding medical care to the charge of digitally penetrating the victim’s sexual organ. Accordingly, we reverse the judgment of the court of appeals and remand this case to that court to determine the extent of the harm, if any, resulting from the trial court’s error.
The remainder of the opinion was joined by KELLER, P.J., and JOHNSON and ALCALA, JJ.
. See Tex. Penal Code § 22.021(a)(l)(B)(i) & (a)(2)(B) ("A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the ... sexual organ of a child by any means ... and ... if ... the victim is younger than 14 years of age[J")
. See id. ("A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the anus ... of a
. See Tex. Penal Code §§ 22.021 (a)( 1 )(B)(iv) & 22.021(a)(2)(B) ("A person commits an offense ... if the person ... intentionally or knowingly ... causes the anus of a child to contact the mouth ... of another person, including the actor ... and ... if ... the victim is younger than 14 years of age[.]”).
. See Tex. Penal Code § 22.021(d) ("The defense provided by Section 22.011(d) [Section 22.011 defines the offense of non-aggravated sexual assault] applies to this section."); Tex. Penal Code § 22.011(d) ("It is a defense to prosecution ... that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.”).
. See Cornet v. State, No. 08-09-00054-CR, 2010 WL 2396799, at *4 (Tex.App.-El Paso June 16, 2010) (not designated for publication).
. See Tex. Penal Code §§ 22.011(c)(3), 22.011(c)(4) ("Health care services provider” means a physician, chiropractor, physical therapist, physician assistant, or nurse; and "Mental health services provider” means, among other things, a licensed social worker, chemical dependency counselor, licensed professional counselor, licensed marriage and family therapist, or psychologist offering psychological services). Section 22.011(b)(9) of the Penal Code, to which this provision refers, says that "[a] sexual assault ... is without the consent of the other person if ... the actor is a mental health services provider or a health care services provider who causes the other person ... to submit or participate by exploiting the other person's emotional dependency on the actor[.]”
. Cornet, supra, at *3.
. See id. at *4.
. Id.
. See notes 1 & 2, ante.
. Tex. Penal Code §§ 22.021(d), 22.011(d).
. Cornet, supra, at *4.
. 818 S.W.2d 782, 785 (Tex.Crim.App. 1991) (citing Camacho v. State, 765 S.W.2d 431 (Tex.Crim.App. 1989)).
. Id.
. Id.
. Tex. Gov't Code § 311.023 (internal numbering omitted).
. Boykin, supra, at 785 (quoting Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App. 1991)).
. Cornet, supra, at *4.
. Id.
. To the contrary, as the Ninth Court of Appeals has aptly observed: "Daily, throughout the world, parents administer ‘medical care’ to their children ... [and] on many occasions lives are saved through the administration of 'medical care' by non-licensed persons.” Lynch v. State, 952 S.W.2d 594, 597 (Tex.App.-Beaumont 1997, no pet.).
. See Tex. Penal Code § 22.011(d) ("It is a defense ... that the conduct consisted of medical care for the child ■■■’’) (emphasis added).
. See, e.g., Long v. State, 931 S.W.2d 285, 290 (Tex.Crim.App. 1996) (‘‘[H]ad the legislature intended to apply a reasonable person standard, they easily could have specified one, or a clear synonym.”); Hatch v. State, 958 S.W.2d 813, 816 (Tex.Crim.App. 1997) ("Chapter 62 of the Government Code shows that the Legislature knew how to restrict statutes to civil cases. For example, the very next section of the Texas Government Code, Section 62.202, is restricted to ‘a civil case.' ").
. Tex. Penal Code § 22.04(k).
. See, e.g., Ex parte Reick, 144 S.W.3d 510, 512 (Tex.Crim.App. 2004).
. Webster’s Third New International Dictionary 1402 (2002).
. Id.
. Id. at 338.
. State’s Brief at 15 (citing Medical Care, Dictionary.com, http://dictionary, reference, com/browse/medical + care) (emphasis added).
. See Tex. Penal Code § 22.06(a)(2)(B) (“The victim's effective consent ... to the actor’s conduct is a defense to prosecution [for nonsexual assault] if ... the victim knew the conduct was a risk of ... recognized medical treatment [.] ” (emphasis added)).
. If the medical care defense is in the nature of a confession-and-avoidance type of defense, then the appellant may not be entitled to an instruction without "an admission to the [otherwise prohibited] conduct, which includes both the act or omission and the requisite mental state." Juarez v. State, 308 S.W.3d 398, 404 (Tex.Crim.App. 2010). We address whether the medical care defense is of such a nature in Part IIB, and (concluding that it is) whether the evidence in this case satisfies the admission-of-the-prohibited-conduct requirement, in Part IIC, post.
. See Cornet, supra, at *3.
. See Callis v. State, No. 01-89-00159-CR, 1990 WL 68465, at *3 (Tex.App.-Houston [1st Dist.] May 24, 1990, no pet.) (not designated for publication).
. Black's Law Dictionary 339 (9th ed. 2009).
. See Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App. 2007).
. See Shaw, supra (the Good Samaritan defense "operates as a kind of particularized example of the justification of necessity”).
. See Juarez, supra, at 404 (citing, in support of this assertion, Ex parte Nailor, 149 S.W.3d 125, 133 (Tex.Crim.App. 2004); Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App. 2005); Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999); Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App. 1992); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App. 1984)).
. Appellant’s Brief at 5 (citing Juarez, supra, at 402).
. It should be noted that Section 22.021 does not require the State to prove that the assaultive conduct it proscribes be committed with a specific lascivious intent.
. 775 S.W.2d 645, 647 (Tex.Crim.App. 1989); see also Juarez, supra, at 403 (“[Martinez ] ignored the confession and avoidance doctrine altogether.”).
. But we note that in Juarez, supra, at 401-403, we treated Martinez as little more than a legal anomaly and pointed out that we have, since Martinez, re-emphasized the applicability of confession and avoidance to self-defense, at least as it relates to misdemeanor assault, in Ex parte Nailor, supra, at 132-34.
. See Cornet, supra, at *3.
. Id.
. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim.App. 1992).
. Id. (quoting the contemporary equivalent of Tex. Penal Code § 22.021(a)(l)(B)(i)).
.Id.
. Id. at 400 (emphasis added).
. Id.
. And indeed, the term "penetrate” was not used at all in connection with examining or cross-examining the appellant.
. Comet, supra, at *3.
. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) ("If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the errar is calculated to injure the rights of defendant, which means no more than that there must be some harm to the accused from the error.”) (internal quotation marks omitted); see also Miller v. State, 815 S.W.2d 582, 585-86 (Tex.Crim.App.199I) (discussing the harm analysis of Almanza as it applies to a trial court's failure to give a defensive instruction that was raised by the evidence).
Dissenting Opinion
dissenting in which MEYERS, KEASLER and HERVEY, JJ., joined.
I respectfully dissent. Appellant’s written statement asserts that he just wanted to “examine” his eight-year-old stepdaughter because
she had secrets which I believed were sexual in nature and she came into my bedroom with only a dress on and no underwear. She lifted her dress to me and exposed herself when I noticed that she was not wearing underwear. She showed me her rear-end and I noticed that she covered her vaginal area with her hand. This made me want to examine her to see if she had any physical evidence of sexual contact or injury.
This sort of “checking out” the sexual status of an eight-year-old girl by a stepfather on his bed is surely not the type of “medical care” envisioned by the Texas Legislature when it enacted this defense to sexual assault and aggravated sexual as
I laid her down on the bed in my master bedroom and proceeded to examine her. I did it in a playful manner, basically telling her how to do it to keep from alarming her. I had her spread her legs while she was on her stomach while I opened her buttocks to check her anus and labia. I visually inspected her genital area and remember my fingers getting wet when they may have — which she may have thought was my licking [her] anus. My fingers made contact with her anus but it was only during the time that I was examining her. There was no intent for any sexual gratification.
If this description meets any commonsense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, friend, priest, or big brother to “check out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with someone and this “concerned” him. Nor was there any testimony that the type of examination performed by appellant would have any success in determining whether the child had, in fact, had sex with anyone. The cases are legion in which medical providers testify that they have found no evidence of sexual assault in their physical examinations of a child, but that does not mean that the child has not been molested.
When asserting a “medical care” defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.
a defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true. In determining whether a defense is thus supported, a court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven. If a defense is supported by the evidence, then the defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. But the evidence must be such that it will support a rational jury finding as to each element of the defense.5
Thus, before appellant would be entitled to an instruction on the “medical care” defense, the trial court, and any reviewing court, must conclude that, if the defendant’s version of events is believed, he is entitled to an acquittal. Is the Court really saying that if the Archangel Gabriel comes down and verifies that appellant is telling the absolute truth, his conduct, as a matter of law, constitutes the type of “medical care” exception that the Legislature enacted to exculpate a person from penetrating a child’s anus or vagina? I do not think so. I think that appellant’s defense fails as a matter of law.
I respectfully dissent.
. See, e.g., Reckart v. State, 323 S.W.3d 588, 592 (Tex.App.-Corpus Christi 2010, pet ref’d) (sexual-assault nurse-examiner who conducted examination of child found no physical evidence of assault, but noted "that in eighty percent of examinations, there is no physical trauma discovered.”); Bargas v. State, 252 S.W.3d 876, 885 (Tex.App.Houston [14th Dist.] 2008, no pet.) (sexual-assault nurse-examiner who found no evidence of physical trauma, "explained that the absence of medical evidence in examinations of sexually abused child victims is common.”); Carty v. State, 178 S.W.3d 297, 304 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (in child-sexual-abuse trial, doctor testified that "most sexually abused children do not exhibit any physical evidence of the assault — even while the abuse is ongoing”); Peak v. State, 57 S.W.3d 14, 17 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (doctor testified that a person probing with his finger to see if a girl's hymen is ruptured to determine pregnancy "would not, under any medical standard, qualify as medical care”); Heslep v. State, No. 11-09-00226, 2011 WL 2175873, *2 (June 2, 2011) (not designated for publication) ("Dr. Sims explained that no physical evidence of sexual abuse is found in ninety percent of cases in which a child is not examined within twenty-four hours after the sexual abuse occurred. She said that vaginal injuries to young girls heal very rapidly.”).
. Of course, some medical treatments are so widely known and practiced — e.g., rubbing cream on a diaper rash, examining various body parts for boils, bruises, or cuts — that a defendant need not offer any medical testimony concerning their practice and efficacy. But an examination of this sort-including its time, place, manner, and person-is so far outside a jury’s and reasonable person's understanding of accepted and acceptable "medical care,” that some testimony as to its medical appropriateness should be necessary to invoke this statutory defense.
.Hall V. State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007) (before a defendant is entitled to a charge on a lesser-included offense, “the evidence must establish the lesser-included offense as 'a valid, rational alternative’ to the charged offense”).
. 243 S.W.3d 647 (Tex.Crim.App. 2007).
. 657-58.
Reference
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