Cornet, Walter

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0205-13

WALTER BRUCE CORNET, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY

A LCALA, J., delivered the opinion for a unanimous Court.

OPINION

This case addresses whether a trial court’s omission of a “medical care” defensive jury

instruction was harmless error.1 In the first ground in his petition for discretionary review,

1
The Texas Penal Code provides for a medical-care defense to charges of sexual assault and
aggravated sexual assault. See TEX . PENAL CODE §§ 22.011(d), 22.021(d) (adopting Section
22.011(d)’s language verbatim). Section 22.011(d) states, “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.” TEX .
PENAL CODE § 22.011(d).
 Cornet–2

Walter Cornet, appellant, contends that the court of appeals erred in its harm analysis by

failing to consider that the erroneous omission of a medical-care-defense instruction

“preclude[d] the jury from giving the defensive argument any effect.” See Cornet v. State,

No. 08-09-00054-CR, 2012 WL 5359233, at *1 (Tex. App.—El Paso Oct. 31, 2012) (mem.

op., not designated for publication). Appellant’s remaining ground contends that the court

of appeals erred by mistakenly relying “on the jury’s verdict of guilty to find an absence of

harm,” thereby conducting a sufficiency-of-the-evidence review instead of a harm analysis.

See id. at *3. As appellant has observed, appellate courts have generally held that the

omission of a “confession and avoidance” type of jury instruction is harmful because it

provides a defendant’s sole avenue for acquittal. This is only a general rule, however,

because reviews for harm are always record-specific and based on the totality of the record

in each case. Our review of the entire record in this case reveals that the jury in fact rejected

appellant’s statements invoking the medical-care defense, and, therefore, we conclude that

he was not actually harmed in this case. Furthermore, although the court of appeals erred by

referring to the sufficiency of the evidence, it reached the correct disposition. We, therefore,

affirm the judgment of the court of appeals.

I. Background

A. The Facts

The complainant was appellant’s stepdaughter. In June 2006, when she was eight

years old, she told a forensic interviewer that appellant had, on one occasion, told her to sit
 Cornet–3

on his face, at which point he made oral contact with her anus. The complainant also said

that appellant had, on one occasion, showed her various “sex toys” and placed one between

her legs so that she could “feel the vibration.”

Appellant responded to these accusations by providing a written statement to police

that was admitted at his trial. His statement indicated that, based on prior comments by the

complainant, he suspected that she had been sexually active with her brothers. He said that

on one occasion in March 2006, the complainant entered his bedroom, lifted her dress, and

exposed herself, causing him to notice that she was not wearing underwear. Because she

covered her genital area with her hand, appellant stated that he decided to examine her to see

if she had any physical evidence of sexual contact or injury. To examine the complainant,

appellant laid her down on the bed and spread her legs while she was on her stomach. After

that, he opened her buttocks to visually check her anus and labia. He claimed that his fingers

made contact with her labia, which he “spread to see if her hymen was intact,” and he noticed

that “she did not have a hymen,” but he did not “know if it had been developed or had been

broken.” He believed that his fingers may have gotten wet at that time and made contact with

her anus while he was examining her. He determined that the “examination was inconclusive

and her anus did not appear to be streached/ripped [sic].” He maintained that there was no

intent for any sexual gratification.

Appellant was subsequently charged with three counts of aggravated sexual assault

of a child. T EX. P ENAL C ODE § 22.021(a)(1)(B), (a)(2)(B). At his trial for the three charges
 Cornet–4

that were tried concurrently, appellant testified about the same March 2006 incident that had

given rise to the investigation. In his testimony, appellant added that he initially saw the

complainant masturbating in her room and told her to stop. He went into his own room, and

within a short period of time she knocked on his door. She then entered his room wearing

a dress, lifted it, and exposed her naked bottom to him, telling him that he could lick it. He

then testified similarly to his written statement describing how he examined her. Appellant

maintained that he did not invade “her private parts.” He specifically denied placing his

tongue into the complainant’s anus and placing his finger into her vagina. He also stated that

he would never molest a child and that “any type of sexual activity with a child is wrong.”

After that incident, appellant claimed that, in an attempt to obtain the complainant’s

confidence to talk to him about whether she had been sexually touched by others, he made

a bargain with her: She would tell him if anyone had touched her in exchange for him

showing her his sex toys. After he showed her the toys, the complainant confided to him that

someone had “licked her pee-pee.”

Appellant was convicted of two out of three charged counts of aggravated sexual

assault of a child by digitally penetrating the complainant’s genitals, as charged in count one,

and making oral contact with her anus, as charged in count three. See T EX. P ENAL C ODE §

22.021(a)(1)(B)(I), (iii), (a)(2)(B). The trial court granted appellant’s motion for directed

verdict as to the second count, in which appellant had been charged with digital penetration

of the complainant’s anus. Id. at § 22.021(a)(1)(B)(I). Although appellant requested a jury
 Cornet–5

instruction on the medical-care defense on the count pertaining to the digital penetration, the

trial court denied his request for that instruction. Id. at § 22.021(d). For each count on which

he was convicted, he was sentenced to 10 years in prison to run concurrently and a $7,500

fine.

On direct appeal, the court of appeals determined that the trial court properly excluded

the medical-care-defense instruction. Cornet v. State, No. 08-09-00054-CR, 2010 WL

2396799, at *1 (Tex. App.—El Paso June 16, 2010) (mem. op., not designated for

publication). We reversed and remanded the case for a harm analysis. Cornet v. State, 359

S.W.3d 217, 228 (Tex. Crim. App. 2012). On remand, the court of appeals held that the

exclusion of the instruction was harmless for two reasons. First, the court explained that,

despite the absence of the instruction, the jury implicitly considered appellant’s defensive

theory and “inferentially resolved the issue” against appellant by finding him guilty. Cornet,

2012 WL 5359233, at *3. Second, the court observed that the jury had sufficient evidence

before it to disbelieve appellant’s defensive testimony regarding his medical-care

examination. Id. Appellant challenges this reasoning and cites to several decisions by courts

of appeals holding that the omission of a defensive instruction is harmful error because it

deprives defendants of their sole defense. Appellant also contends that reviews for charge-

error harm are distinct from, and are not to be mistaken for, evidence-sufficiency reviews.

The State responds that, in finding appellant guilty of aggravated sexual assault of a child,

the jury implicitly determined that he had criminal intent, and, therefore, necessarily rejected
 Cornet–6

his defensive theory.

II. Omission of Appellant’s Medical-Care Jury Instruction was Harmless Error

The parties agree that the court of appeals applied the proper procedural framework

described in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);

see also Posey v. State, 966 S.W.2d 57, 62 n.12 (Tex. Crim. App. 1998) (timely requested

defensive issue becomes law “applicable to the case” to which Almanza applies). As the

court of appeals noted in this case, if the charge contains error and that error has been

properly preserved by an objection or request for instruction, reversal is required if the error

is “calculated to injure the rights of the defendant.” Cornet, 2012 WL 5359233, at *1; see

Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003); Almanza, 686 S.W.2d at 171.

This means that the trial record must demonstrate that there is some actual harm and not just

a theoretical complaint. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012)

(requiring actual harm and not just theoretical harm). The court of appeals explained that the

standard for assessing “the actual degree of harm” requires an appellate court to consider the

totality of the record, including “[A] the entire jury charge, [B] the state of the evidence,

including the contested issues and weight of probative evidence, [C] the argument of counsel,

and [D] any other relevant information revealed by the record of the trial as a whole.”

Cornet, 2012 WL 5359233, at *1 (citing Almanza, 686 S.W.2d at 171). Because we agree

with the parties that the court of appeals accurately described the procedural framework, we

focus on its application of the standard to the record in this case.
 Cornet–7

A. The Entire Jury Charge

The first category of Almanza requires a reviewing court to consider the entire jury

charge. Almanza, 686 S.W.2d at 171. In arguing that he was harmed, appellant focuses on

(1) the lack of a specific requirement that the jury find criminal intent before convicting a

defendant of aggravated sexual assault of a child, and (2) the lack of a vehicle by which the

jury could have acquitted appellant of aggravated sexual assault of a child on the digital-

penetration count if it believed that he was providing medical care to the complainant. We

are unpersuaded by both arguments.

1. The Medical-Care Legal Justification is Different from Criminal Intent

The parties dispute whether, in finding appellant guilty of aggravated sexual assault

of a child, the jury has determined that he acted with the “intent to arouse or gratify sexual

desire.” See T EX. P ENAL C ODE § 22.021(a)(1)(B)(I), (a)(2)(B). Appellant accurately

observes that the statute’s plain language does not require this. See id. Pointing to this

Court’s earlier decision in this case, appellant suggests that, without the medical-care

defensive instruction, appellant has admitted to all the elements of the offense and is left

without the instruction that would legally justify the conduct and permit the jury to acquit

him. See Cornet, 359 S.W.3d at 225; cf. Villa v. State, No. PD-0792-12, ___ S.W.3d ___,

slip op. at 16 (Tex. Crim. App. Nov. 6, 2013).

The State, however, responds that the jury implicitly found this sexual intent in

finding appellant guilty. See Evans v. State, 299 S.W.3d 138, 142 (Tex. Crim. App. 2009).
 Cornet–8

In Evans, this Court held that indecency with a child by contact is a lesser-included offense

of aggravated sexual assault of a child because, even though the latter offense did not include

that intent as an express element, lascivious intent was implicitly included. Id. This Court

determined that it was unnecessary for the Legislature to expressly include that element in

describing aggravated sexual assault “because both the title (aggravated sexual assault) of

the statute and the severity of the conduct proscribed (penetration) ensure that the statute

would not be applied to any legitimate handling of the child.” Id. Evans discussed the

ordinary understanding of aggravated sexual assault of a child as it would apply without

statutory defenses. We see no conflict, therefore, between Evans and this Court’s prior

opinion in Cornet because the medical-care defense does not negate criminal intent but rather

“merely justifies” what would otherwise be an unlawful touching of a child. Cornet, 359

S.W.3d at 225 (“medical-care defense does not, ‘by its terms,’ negate the necessary culpable

mental states of intent or knowledge; . . . it merely justifies what would otherwise be an

unlawful touching of a child”). We cannot conclude that, simply by finding appellant guilty

of the digital-penetration count, the jury would necessarily disbelieve the evidence that he

was providing medical care to the complainant.

2. Generalities Are No Substitute for Record-Specific Analysis for Harm

As explained more fully below, the wrongful omission of a medical-care-defense jury

instruction is generally considered harmful, however, in view of the totality of the record

before us, we conclude that its omission was harmless in this case. The medical-care defense
 Cornet–9

is one of confession and avoidance. See Cornet, 359 S.W.3d at 224–25; Villa, No. PD-0792-

12, ___ S.W.3d at ___, slip op. at 11. We have explained that a defendant claiming

entitlement to this defense must admit to each element of the offense, including both the act

and the requisite mental state. See Villa, No. PD-0792-12, ___ S.W.3d at ___, slip op. at 11.

When the defensive evidence does no more than attempt to negate an element of the offense,

a defendant is not entitled to a defensive instruction on any defense subject to the confession-

and-avoidance doctrine. Id. (citing Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App.

2007)). An instruction on a confession-and-avoidance defense, therefore, is appropriate only

when “the defendant’s defensive evidence essentially admits to every element of the offense,

including the culpable mental state, but interposes the justification to excuse the otherwise

criminal conduct.” Id. (quoting Shaw, 243 S.W.3d at 659).

The absence of this type of instruction is generally harmful because its omission

leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the

elements of the offense. See, e.g., Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App.

1992) (omission of instruction on defense of necessity harmful); Miller v. State, 815 S.W.2d

582, 586 (Tex. Crim. App. 1991) (omission of instruction on mistake-of-fact defense

harmful); Hill v. State, 765 S.W.2d 794, 797–98 (Tex. Crim. App. 1989) (omission of

instruction on mistake-of-fact defense harmful); Johnson v. State, 271 S.W.3d 359, 368–69

(Tex. App.—Beaumont 2008, pet. ref’d) (omission of self-defense instruction harmful). Our

survey of case law, in fact, has revealed no cases that have found the omission of a defensive
 Cornet–10

instruction under a confession and avoidance theory to be harmless. In general, when there

is a single offense tried before a jury, it is impossible to determine how a jury would have

weighed the credibility of the evidence on a defensive issue, and, therefore, appellate courts

have reversed convictions in order to permit the jury to decide whether it believes the

defensive evidence.

Although generalities may be instructive, they cannot substitute for the record-specific

analysis for harm that must be conducted in each case. See, e.g., Almanza, 686 S.W.2d at

171. Here, the entire jury charge consisted of a single set of instructions that permitted the

jury to consider whether appellant was guilty or not guilty of counts one and three, both of

which were alleged to have occurred on or about the same day. By finding him guilty of two

offenses litigated simultaneously in a single trial, the jury determined that appellant

committed both (1) aggravated sexual assault of the complainant in count one by digital

penetration of her sexual organ, see T EX. P ENAL C ODE § 22.021(a)(1)(B)(I), (a)(2)(B); and

(2) aggravated sexual assault of the complainant in count three by contacting her anus with

his mouth, see id. at § 22.021(a)(1)(B)(iv), (a)(2)(B). The error in the jury instructions before

us in this appeal affects only count one, the digital-penetration count, and has no effect on

count three, the oral-contact count. See id. at §§ 22.011(d), 22.021(d) (conditioning medical-

care defense on alleged conduct’s “not includ[ing] 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”). In this

case, although the complainant and appellant differ in their descriptions of the actions taken
 Cornet–11

by appellant when he touched her, the undisputed evidence at trial established that they each

described a single event when this occurred. Under appellant’s version, he touched the

complainant for the sole purpose of examining her to see if she had been sexually assaulted

by someone else. Under the complainant’s version, appellant sexually touched her and had

her sit on his face as he made oral contact with her anus. By its terms, the medical-care

defense does not apply to any alleged conduct involving anus-to-mouth contact. See id. at

§ 22.011(d). It is inconceivable that the jury would have found appellant guilty of causing

the anus of the complainant to contact his mouth, a claim entirely denied by appellant, had

it believed his claim that he was providing medical care to the complainant during the same

event. It is clear that the jury believed the complainant and disbelieved appellant’s claims

that he was only touching the complainant with his hand to provide medical care.

This situation contrasts with Villa v. State, a case in which we similarly considered

the implications that reasonably could be drawn from a jury’s verdicts on two different

offenses tried simultaneously. Villa, No. PD-0792-12, ___ S.W.3d at ___, slip op. at 11. In

Villa, a single jury simultaneously heard one count of aggravated sexual assault of a child and

one count of indecency with a child, but convicted Villa of only the former charge. See id.

at 15. In finding that the failure of Villa’s counsel to request a medical-care-defense

instruction constituted ineffective assistance of counsel, we explained that the jury’s acquittal

on the charge of indecency with a child, an offense that required the State to prove that Villa

had the intent to arouse or gratify sexual desire, was a circumstance indicating that the jury
 Cornet–12

may have found the medical-care evidence persuasive because the jury had convicted Villa

of aggravated sexual assault that did not include that element. From the two verdicts in the

single trial, as in the present case, we could discern how the jury likely viewed Villa’s

medical-care-defense evidence. We noted,

The jury’s not guilty verdict for the indecency with a child charge indicates
that the jury found no intent by Appellant to arouse or gratify his sexual
desires. This verdict is supported by the record as there was no evidence
presented by the State relating to intent to arouse or gratify, and both
[complainant] and Appellant stated that someone else was in the room when
the touching took place. Thus, it appears that the jury’s guilty verdict on the
aggravated sexual assault charge was based solely on the very specific act of
penetration of the sexual organ. The statements by [complainant] and
Appellant related to this specific act are not inconsistent. . . . Given the fact
that the jury specifically found no sexual intent to Appellant’s actions, it is
likely that the verdict on the aggravated sexual assault charge would have been
different had the jury been provided with a vehicle to give effect to
Appellant’s medical-care defense.

Id. at 15–16. This Court thus reasoned that the jury’s acquittal of Villa on the count that

required proof of intent to arouse or gratify sexual desire strongly suggested that Villa may

have been found guilty of aggravated sexual assault of a child despite the jury’s belief that

he was providing medical care for the child.

This case also contrasts with another case in which the erroneous omission of the

medical-care-defense instruction was determined to be harmful. Appellant cites to Watrous

v. State to support his argument that the omission of the medical-care instruction was harmful

in his case. See Watrous v. State, 842 S.W.2d 792, 795 (Tex. App.—El Paso 1992). Like

appellant, the defendant in Watrous was tried in a single trial for two counts, one for touching
 Cornet–13

and one for penetrating the child’s sexual organ with his finger. Id. at 795. Watrous is

distinguishable, however, because the omitted medical-care defense would have applied to

both counts, unlike the situation in this case. See id. at 793–94. The record in Watrous,

unlike here and in Villa, was inadequate from which to discern how the jury would have

assessed a medical-care defense had such an instruction been given. Id. at 795.

Our record-specific analysis of the totality of the instructions to the jury indicate that

the error in the omission of the medical-care-defense charge was harmless in this case.

B. The State of the Evidence

Under the second category in Almanza, an appellate court must consider the state of

the evidence, including the contested issues and weight of probative evidence. Almanza, 686

S.W.2d at 171. The State and appellant each described a single event when appellant

touched the complainant, but their characterizations of that event differ with respect to

appellant’s intent. The State’s case describes appellant’s conduct as lascivious, as compared

to appellant, who claims that he did not penetrate the sexual organ of the complainant, and,

alternatively, that he was providing medical care to the complainant. As we have explained

above, the record affirmatively shows that the jury believed the State’s version and not

appellant’s.

In his second ground, appellant specifically challenges the court of appeals’s analysis

by claiming that it inappropriately conducted a review for sufficiency of the evidence rather

than assessing the record for the harmful impact from the charge error. Appellant refers to
 Cornet–14

the portion of the court of appeals’s opinion in which the court stated that the jury “had

sufficient evidence before it to disbelieve Appellant’s version of the events and his defensive

testimony regarding his medical-care examination.” Cornet, 2012 WL 5359233, at *3. We

agree with appellant that a review for sufficiency of the evidence cannot substitute for a harm

analysis. See Sanchez, 376 S.W.3d at 772 (“The court of appeals erred in applying the Hicks

rule to charge-error complaints when it was a sufficiency-of-the-evidence rule”). Although

it inappropriately used the words “sufficient evidence,” it does not appear that the court of

appeals was conducting a sufficiency-of-the-evidence review. Instead, the court examined

the quality of the defensive evidence, a matter pertinent to the second category in Almanza.

The court noted that appellant did not immediately inform the complainant’s mother about

his conduct or his need to immediately examine the complainant. The court concluded that

“[n]othing in the record or in Appellant’s argument shows the jury would have attached any

more credence to Appellant’s testimony that he was only performing ‘medical care’ than they

did to his testimony of denying the act of penetration.” Cornet, 2012 WL 5359233, at *3.

Although the court of appeals erred by referring to sufficiency of the evidence, we conclude,

based on our review of the evidence, that the court of appeals correctly determined that the

jury’s finding that appellant orally contacted the complainant’s anus indicates that it

disbelieved the medical-care evidence. Had the jury believed appellant’s defensive evidence

that he was medically examining the child, it would not logically follow that it would have

convicted him in count three for causing the anus of the complainant to contact his mouth,
 Cornet–15

an event that occurred concurrently with the digital penetration.

C. The Arguments of Counsel

Under the third category in Almanza, an appellate court must consider the arguments

of counsel in deciding whether a defendant was harmed by an erroneous jury instruction.

Almanza, 686 S.W.2d at 171. In his closing arguments, appellant’s attorney focused on the

State’s purported failure to prove that appellant penetrated the complainant’s sexual organ

by his finger or that he made oral contact with her anus. Appellant’s attorney challenged the

credibility of the complainant and the outcry witness, and urged the jury to read appellant’s

written statement, which he argued was not a confession. Appellant’s counsel did not

mention the medical-care defense expressly or implicitly, and he appeared to disavow it by

characterizing appellant’s conduct as “definitely inappropriate behavior,” and by arguing that

“inappropriate is not the question.” The prosecutor’s closing argument, on the other hand,

asked the jury to reject appellant’s explanation that his physical contact with the

complainant’s genital area was for medical care.2 Although the medical-care defense was

2
The record of the prosecutor’s closing argument includes the following relevant portions:

He’s telling you that he is examining the child and his fingers get wet, that must be
why she mistook it for licking her butt, I—I’m not getting that. I’m sorry. You’ve got
a child lying on a bed and she’s on her stomach and you’re like this (indicating) and
you’re touching her with your fingers, where do you get a mistake of licking on [sic]
butt? . . . When you have a statement by this defendant who says, “I was just
examining her to see if she was okay after masturbating.” He’s an educated person.
He has a freaking Ph. D. Come on. And he doesn’t think that you should go to an
M.D. to have a child examined? He should examine a little girl outside the presence
of her mother? Even if you accepted that that was okay, do it when the mom is gone?
(continued...)
 Cornet–16

not the focus of defense counsel’s closing arguments, the State did suggest to the jury that

it should consider appellant’s statements that he was providing medical care to the

complainant and to reject that evidence on its merits. Together, the State’s argument and the

jury’s conviction of appellant for orally contacting the complainant’s anus strongly indicate

that the jury considered and rejected appellant’s claim that his contact with the complainant

was for her medical care.

D. Other Relevant Information

Other relevant information in the record suggests that appellant’s defensive theory at

trial was focused on his argument that the State failed to prove that he penetrated the sexual

organ of the complainant rather than on the medical-care defense. Neither defense counsel

nor the prosecutor asked questions on voir dire about the medical-care defense. In his

opening statement, appellant’s trial counsel presented his defensive theory that the jury

would “find that the State has not proved these specific allegations.” He did not mention the

medical-care defense and appeared to disavow the suggestion that this was appropriate

medical care. Rather than suggesting that the jury consider appellant’s conduct with the

complainant as a proper examination for her medical benefit, trial counsel described

appellant as making the “mistake” of examining the complainant “to see if he could see any

injuries, or whatever.” Because he did not question the jury about the defense during voir

(...continued)
How does that make any sense? How does it? When you take it in context and you
take all the facts and circumstances surrounding everything that he admitted to doing
and you take it with what [complainant] said, I think the answer is clear.
 Cornet–17

dire or invoke the defense in his opening statement, and because he made comments

suggesting to the jury that appellant’s conduct was a mistake and inappropriate, trial

counsel’s request for the medical-care defense appears to be an afterthought and does not

appear to be the primary focus of his defensive theory at trial. This further suggests that the

error in omitting the defensive instruction was harmless.

Our review of the totality of the record shows that the error in the omission of the

medical-care-defense instruction was harmless. Had appellant been tried solely for the

digital penetration count or only for offenses to which the medical-care-defense instruction

applied, we likely would have no information from which to determine whether the jury

would have found appellant’s medical-care-defense evidence credible. See Watrous, 842

S.W.2d at 795. Or had appellant been acquitted of one offense that required proof of

criminal intent to arouse sexual desire, but convicted of another offense that did not have that

criminal intent, then we would have affirmative information from which to determine that

the error in the omission of the medical-care-defense instruction was harmful. See Villa, No.

PD-0792-12, ___ S.W.3d at ___, slip op. at 12-14. But here it is clear that the jury did not

believe appellant’s medical-care defense. By convicting appellant of orally contacting the

complainant’s anus, an offense to which the medical-care defense is inapplicable, the jury

clearly determined that it did not believe appellant’s testimony that he was examining the

child for her medical care and that he did not penetrate her sexual organ or orally contact her

anus. Because the totality of the record reveals the jury’s implicit rejection of the medical-
 Cornet–18

care defense, we hold that the absence of that instruction was harmless. We overrule

appellant’s two grounds.

III. Conclusion

We affirm the judgment of the court of appeals.

Delivered: November 6, 2013

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