medical-care defense in Texas

2023See Villarreal, 453 S.W.3d at 440 (“Because the omission of the instruction affected only appellant’s secondary defensive theory, we do not find that the omitted instruction touched upon a ‘vital aspect’ of his case.”); see also Cornet, 417 S.W.3d at 455 (“Because he did not question the jury about the defense during voir 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

2023See Almanza, 686 S.W.2d at 171 (requiring us to review voir dire in our harm analysis); see also Rodriguez III, 2022 WL 2840153 , at *2 (finding that the State and defense counsel addressed self-defense during voir dire, and repeated the elements of self-defense as set out in the penal code, such that venire members even sought clarification); see also Cornet v. State, 417 S.W.3d 446, 455 (“Other relevant information in the record suggests that appellant’s defensive theory at trial was focused 18 on his argument that the State failed to prove” an essential element of the charge “rather than on

2015That defense is codified in the Penal Code and provides that “[i]t 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 Tex. Penal Code §§ 22.011(d) (setting out defense), .021(d) (explaining that medical-care defense applies to aggravated assault cases); Cornet v. State, 417 S.W.3d 446, 451 (Tex.Crim.App.2013) (“Comet II”) (stating that “the medical-care defense does not negate criminal intent but rather ‘mer

2015That defense is codified in the Penal Code and provides that “[i]t 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 Tex. Penal Code §§ 22.011(d) (setting out defense), .021(d) (explaining that medical-care defense applies to aggravated assault cases); Cornet v. State, 417 S.W.3d 446, 451 (Tex.Crim.App.2013) (“Comet II”) (stating that “the medical-care defense does not negate criminal intent but rather ‘mer

2017See, e.g., Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (“The medical-care defense is one of confession and avoidance.

2015“The medical-care defense is one of confession and avoidance.” Villa, 417 S.W.3d at 462 .

2012If 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).

2012If 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.

2014See id.; Villa v. State, 370 S.W.3d 787, 792 (Tex. App.—Eastland 2012), aff’d, 417 S.W.3d 455 (Tex. Crim.

2013Id.4 In Villa v. State, the second case cited by appellant, the court held that trial counsel was ineffective when he failed to request an instruction on the medical- care defense. 370 S.W.3d 787, 796-97 (Tex. App.—Eastland 2012, pet. granted).

2013See Watrous, 842 S.W.2d at 795 .

2013Id. at 795.

2015Pursuant to its rigorous qualitative evaluation of the record, this Court should conclude that a rational jury could not have concluded that App ellant acted with intent to arouse and gratify his sexual desire.' Brooks 323 S.W.3d at 915 .

2012In a sufficiency review, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. *792 Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010).

2024See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.

2021See Rodriguez, 2019 WL 406167 , at *7; Escovedo, 902 S.W.2d at 115 ; cf. Cornet v. State, 417 S.W.3d 446, 455 (Tex. Crim. App. 2013) (“Because he did not question the jury about the defense during voir 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.

2018See, e.g., Browne v. State, 483 S.W.3d 183, 191-95 (Tex. App.—Austin 2015, no pet.) (similar analysis). 6 Appellant has not satisfied his burden under Strickland.

2017Compare Villa, 417 S.W.3d at 462 (holding that because the medical care defense is one of confession and avoidance, “a defendant claiming entitlement to an instruction on the medical-care defense must admit to each element of the offense, including both the act and requisite mental state”), with Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (reiterating that “intent to arouse and gratify” is a part of the “proof of the elements of aggravated sexual assault,” in holding that indecency with a child is a lesser-included offense of aggravated sexual assault).

2017Compare Villa, 417 S.W.3d at 462 (holding that because the medical care defense is one of confession and avoidance, “a defendant claiming entitlement to an instruction on the medical-care defense must admit to each element of the offense, including both the act and requisite mental state”), with Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (reiterating that “intent to arouse and gratify” is a part of the “proof of the elements of aggravated sexual assault,” in holding that indecency with a child is a lesser-included offense of aggravated sexual assault).

2017See Cornet, 417 S.W.3d at 454-55 (holding that the error of omitting a medical-care defensive instruction did not cause some harm in part because trial counsel did not question the jury about the defense during voir dire or invoke the defense in his opening statement; “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”); Rogers v. State, Nos. 13-15-00600-CR, 13-15-00601-CR, 527 S.W.3d 329, 333 , 2017 WL 930017, at *2 (Tex. App.—Corpus Christi Mar. 9, 2017, no pet. h.) (holding that the error

2017See Cornet, 417 S.W.3d at 454-55 (holding that the error of omitting a medical-care defensive instruction did not cause some harm in part because trial counsel did not question the jury about the defense during voir dire or invoke the defense in his opening statement; “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”); Rogers v. State, Nos. 13-15-00600-CR, 13-15-00601-CR, 527 S.W.3d 329, 333 , 2017 WL 930017, at *2 (Tex. App.—Corpus Christi Mar. 9, 2017, no pet. h.) (holding that the error

2017Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (citing Jackson, 443 U.S. at 319 , 99 S.Ct. at 2789 ).

2017See Hooper, 214 S.W.3d at 15 .

2017See Cornet, 417 S.W.3d at 454-55 (holding that the error of omitting a medical-care defensive instruction did not cause some harm in part because trial counsel did not question the jury about the defense during voir dire or invoke the defense in his opening statement; “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”); Rogers v. State, Nos. 13-15-00600-CR, 13-15-00601-CR, 527 S.W.3d 329, 333 , 2017 WL 930017, at *2 (Tex. App.—Corpus Christi Mar. 9, 2017, no pet. h.) (holding that the error

2013See Ngo, 175 S.W.3d at 743 .

2013See Ferrel, 55 S.W.3d at 591 .

2013See Cocke, 201 S.W.3d at 747 .

2012We clarified, in Juarez, that the defensive issues the doctrine does not apply to are those that “by [their] terms, negate[] the culpable mental state” required for commission of the offense.40 But the medical-care defense does not, “by its terms,” negate the necessary culpable mental states of intent or knowledge; as mentioned above, it merely justifies what would otherwise be an unlawful touching of a child.41 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- 38 S

2012Like the Good Samaritan defense, the medical-care defense “does not negate any element of the offense, including culpable intent; it only excuses what would otherwise constitute criminal 33 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). 34 Black’s Law Dictionary 339 (9th ed. 2009). 35 See Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim.

2012App. 2007). 36 See Shaw, supra (the Good Samaritan defense “operates as a kind of particularized example of the justification of necessity”). 37 See Juarez, supra, at 404 (citing, in support of this assertion, Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim.