Cornet v. State, PD 1067-10.  On Appellant’s (Cornet’s) petition for discretionary review from the Eight Court of Appeals, El Paso County. Judgement announced by Judge Price,who delivered an opinion, Part IIAi of which was for the Court (and was joined by Judges Keller, Womack, Johnson and Acala.  Remainder of the opinion joined by Keller, Johnson, and Acala.  Dissent by Cochran, joined by Myers, Keasler, and Hervey.


The complainant outcried to a forensic interviewer that Appellant had sexually assaulted her by digitally penetrating her genitals, digitally penetrating her anus, and making oral contact with her anus. The detective informed Appellant of the allegations and he voluntarily gave a statement that after the girl (his step-daughter) had alleged having sex with both her brothers, he inspected her genitals and anus for signs of sexual activity. Appellant was charged with three counts of aggravated sexual assault of a child. At trial, after the State’s case-in-chief, Appellant moved for a directed verdict on all counts. The trial court granted directed verdict on count 2 (digital penetration of the anus), but not counts 1 & 3. Appellant went on to testify and then argued for inclusion of the medical care defense. The trial court denied the request, ruling that the defense only applied to medical professionals. The jury found Appellant guilty and sentenced him to 10 years confinement and a $7,500 fine.

On appeal, the 8th Court of Appeals affirmed the trial court, issuing a two-prong ruling: 1) there was no evidence at trial that Appellant admitted to the offense, so there was no error denying the medical care instruction; 2) the medical care defense only applies to medical professionals, not lay people.


The main takeaway here (and the part of Judge Price’s opinion that constitutes the law going forward) is that the medical care defense does not just apply to medical care professionals. It’s the nature of the conduct, not the actor’s occupation, that matters. In classic statutory construction analysis, Price points out how the statute doesn’t say medical professionals (so we shouldn’t read it in) and the code refers to medical professionals elsewhere (so clearly the drafters knew what they were doing when they chose not to use medical professionals-type limiting language).

The rest is just dicta, not the judgement of the Court. Price goes on to say that a mere inspection of the genitals and anus is covered by the term “medical care” in the statute. He then agreed with the lower appellate court that the medical care defense is a “confession and avoidance” defense, meaning a defendant must admit to the offense in order to use the defense, however, he found that, because a rational jury could infer from the defense evidence that all the elements were satisfied even though Appellant may or may not have have denied it at trial), he had effectively “admitted” for the purposes of claiming the defense.

The Court found that the Court of Appeals and trial court had erred in denying Appellant an instruction on the medical care defense, and reversed remanded to determine harm.

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