Cornet v. State (359 S.W.3d 217, 2012)

OPINION

PRICE, J.,

announced the judgment of the Court and delivered an opinion,

Part IIAi of which was for the Court, and was joined by KELLER, P.J., and WOMACK, JOHNSON, and ALCALA, JJ.

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, digitally penetrating her anus, and making oral contact with her anus. The trial court directed a verdict of acquittal with respect to the charge of digitally penetrating her anus, but the appellant was convicted of the two remaining charges. On appeal, the appellant complained that the trial court erred in refusing to instruct the jury on the medical-care defense to digital penetration. The Eighth Court of Appeals affirmed.

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:

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 22.011(c)(3) and (4), concluded that the defense was limited in its application to use by licensed medical professionals, and thus denied the appellant’s requested instruction. In its closing argument, the State directed the jury to “look at [the appellant’s written statement]. Tell me that doesn’t give you a picture of what’s going on in his mind and what he’s doing. ... [D]oes he confess to doing it? Well, yeah, I think, in there.” The jury returned a verdict of guilty with respect to Counts I and III and assessed punishment at ten years’ confinement for each count of aggravated sexual assault, to run concurrently, and a fíne of $7,500.

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,” it held that there existed no evidence at trial showing that the appellant admitted to the offense, and that, therefore, the trial court did not err in refusing to grant the instruction. In its second prong, the court of appeals went on to hold that, in any event, the defense “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 area.” We review these determinations in reverse order, as we consider the latter holding to be logically precedent to the former.

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. Section 22.021(d) provides, by reference to Section 22.011(d), that “it is a defense to prosecution ... that the conduct [constituting the offense] 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[.]”

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 area.” We are called upon, in addressing this issue, to interpret the statutory language of the medical-care defense— what does it mean, in the context of digital penetration, for conduct to “consist[] of medical care”?

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.” In effectuating this collective intent, we must look first to the text of the statute itself, because “the text is the only definitive evidence of what the legislators ... had in mind when the statute was enacted into law.” Looking to the text of the statute, we initially ascertain whether a plain-meaning interpretation is possible — that is, whether the text has a non-ambiguous meaning on its face. If so, we consider whether the adoption of that interpretation would produce “absurd consequences that the Legislature could not possibly have intended”; and if the plain-meaning interpretation generates no such absurdities, we adopt that interpretation.

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.” We resort to these sources “out of absolute necessity,” and only insofar as they do not “add or subtract from [the] statute.” We must take care, when searching beyond the text to find meaning, that we do not substitute our judgment for that of the Legislature in giving effect to a statutory 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.” It further concluded that such inspections “should be left to the medical professional.” To the extent that such language implied that the availability of the medical-care defense turns upon the accused’s familiarity with the science of medicine, we reject any such notion.

This conclusion derives from the plain language of Section 22.011(d). The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterizes the availability of the defense. Nowhere in that section is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court to read such a restriction into the defense would imper-missibly “add or subtract from [the] statute.”

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. For example, Section 22.04(k) of the Penal Code says that it is a defense to the crime of causing injury to a child that the “act or omission consisted of ... reasonable medical care occurring under the direction of or by a licensed, physician [or] emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.” That Section 22.011(d) refers simply to “medical care,” and does not, as Section 22.04(k) does, provide for different standards according to the medical savvy of the person claiming the defense, suggests two things: first, that the Legislature did not intend for Section 22.011(d) to exclude from its coverage any group of persons on the basis of their training in or familiarity with the “healing arts,” and second, that the same standard for the defense should apply to all persons, health-care professional or not, who can otherwise validly claim the defense based on their conduct.

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. In consulting dictionaries for the meaning of a particular word, we look to the lexicographical alternatives that the Legislature most likely had in mind, taking into account the context provided by the phrase, subsection of the statute, and overall statutory scheme in which the word appears. The question, then, is not whether the word “care” by itself should be understood to embrace the concept of “inspection,” but whether the whole phrase “medical care” does.

Webster’s Third International Dictionary defines “medical” as “of, relating to, or concerned with physicians or the practice of medicine[.]” This near-tautological definition begs the question: what is “medicine”? Again consulting Webster’s, we see that it defines “medicine” as, in relevant part, “the science and art dealing with the maintenance of health and the prevention, alleviation, or cure of disease[.]” Thus, if indeed the Legislature intended to include examinations as protected conduct under the defense, there is a strong inference, from the Legislature’s inclusion of the word “medical,” that the Legislature sought only to protect examinations insofar as they are medically relevant—that is, relevant to the state of the child’s health and well-being.

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