COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

WAL TER CORNET, Appellant,

v.
THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00054- CR

Appea l from the
384th District Court of El Paso County , Texas (TC# 20060D03223)

O P I N I O N Appellant, Walt e r Co r

n et, was convicted of two counts of ag g rava ted sexual assault of a child

– digital penetra tion of t he ch i l d ’s s exual org an and causing the child’s anus t o contac t his mouth

– and sentenc ed to ten y ear s’ imprisonment and a $7,500 fine. On appea l, Appellant contends that 1
the trial cour

t violated his c onfrontation rig hts by admitting cer tain evidenc e and err ed by deny ing
his defensive instruction on medical ca re. We a ffirm.
BACK GR OUND
After Child Protective Service s initiated a repor t of suspected child a

b u s e in v o lv in g th e eig hty ea r-old complainant, K.M., L aura Fr esca s conducte d a fore nsic interview at the El Pa s o C h i l d
Advoca cy Center. During the interview, K.M. rela y ed that Appellant sexually abused her by having
her sit on his fac e as h e l i ck ed her anus wit h his tongue

. K.M. also drew a picture illust rating the
sexual conduct. Following the interview, Appellant g ave a written statement to Detec tive Terr azas
in which he admitted to examining the child’s anus and labia for evidenc e of sexual contac t or injury

.

A p p e l l a n t w a s a l s o i n d i c t e d f o r a g g r a v a t e d s e x u a l a s s a u l t o f a c h i l d b y d i g i t a l p e n e t r a t i o n o f t h e c h i l d ’ s 1

a n u s , b u t a d i r e c t e d v e r d i c t w a s g r a n t e d o n t h a t c o u n t

.Specifica lly , an excer pted portion of the state ment rea d as follows:

I first explained to Detec tive Terr azas that I suspected my step-daugh t er h ad problems beca

use she had divulge d to me that she had sex with both of her brothers, which cause d me g rea t conce rn. I then ex p l ained to him that on one particula r incident I had phy sically examined my step-daug hter beca use she had secr ets which I believed wer e sexual in nature and she came into my bedroom with only a dress on and no underw ear
. She lifted her dress to me and exposed herse lf when I noticed that she was not wea

ring underw ear
. She showed me her rea r-e nd and I noticed that she
cover ed her vag in al area with her hand. This made me want to examine her to see if she had a

ny phy sical evide nce of

sexual contact or injury

. I laid her dow n on the bed in my master be droom and proc eede d to examine her. I did it in a play ful m an n er, basica lly telling her how to do it to keep from alar ming her. I had her sprea d her leg s while she was on her stomach while I opened her butto ck s to chec k her anus and labia. I visually inspected her g enital are a and
reme mber my fing ers g etting wet when they may have- -which she may have thought
was my licking anus. My fing ers made contac t with her anus but it was only during the time that I was examining her. There was no intent f or any sexual g ratification. My fing ers also made contac t w ith he r labia which I sprea d to see if her hy men was intact beca

use of her ag e. I did not know if it would have been develope d. After examining the child I noticed that she did not have a hy men, which I do not know if it had not been developed or had been broke n
. T h e examination was inconclusive and her anus did not appea r to be stretche d or ripped. I deter mined there was nothing wrong with the child and spanked her buttocks and said to her that she could g o, in a play ful manner

. During trial, Appellant expressly denied p en etra ting K.M.’s vag ina with his fing er or licking her anus, stating that he “did not have to” as he “wa s looking for external signs of

any injuries.”
CONF RONTATION RIGHTS Ap p el l an t’s first issue contends that the trial court violated his confr ontation rig hts b y admitting, without a prior opportunity to cross-e x amine K.M., Fr esca s’ rec itation of the child’s
outcry , the videotape of the fore nsic interview, and the stick illust ration of t h e abuse. The State

r e s p o n ds that no violation occur red since K.M. testified at trial and was subject to cr o s s - e xa mi n a ti o n
. Admission o f t estimonial hear say violates a defe ndant’s Six th Amendment rig ht to
confr ontation when the decla rant is unavailable to testify and the defe ndant had no prior opportunityto cross-e x amine the decla rant. See Crawf

ord v. W ashington , 541 U.S. 36, 68, 124 S.Ct

. 1354, 158

L .Ed.2d 177 (2004). I n child sexual-assault case s, the Confrontation Clause ac t s as a brake

conce rning the admission of “testimonia l ” child outcry statements unless: (1) the child actua lly
testifies ; o r (2 ) is prese ntly unavailable but has been subject to cross-e x amination in a prior

proce eding

. See M

artinez v. State , 178 S.W .3d 806, 811 n.21 (Tex. Crim. App. 2005). Appellant arg ues that beca use he was not a llowed a prior opportunity to c ross-examine the
child befor e the complai n ed -o f evidenc e was admitted, the trial court violated his confr ontation rig hts. Howeve r, Appellant was not entitled to a prior opportunity for cross-e x amination befor e the
evidenc e was admitted since the child testified at trial. Martinez , 178 S.W .3d at 811 n.21. As the 2 Supreme Court note d in Crawf ord , when “ the dec lara

nt appea rs for c ross-examination at trial, the
C o n frontation Clause place s no constraints at all on the use of his prior testimonial statem en t s
. ” Crawf ord , 541 U.S. at 59 n.9 (empha sis added)

. Acc ording ly , beca use K.M. testified at trial and was
available for cross-examinat i o n , t h e trial court did not violate Appellant’s confr ontation rig hts by admitting the outcry witness’s testimon y , t h e v ideotape interview, or the stick draw ing. See 3 Crawf ord v. State , 139 S.W .3d 462, 465 (Tex. App.–Dallas 2004, pet. ref ’d) (conc luding Crawf

ord

v. W ashington was inapplicable when defe ndant had opportunity to cr o s s -examine complainant

reg arding extrajudicial testimonial statements); Eustis v. State , 1 91 S.W .3d 879, 886 (Tex.

A p p e l l a n t d o e s n o t c o n t e n d t h a t K

. M

. ’ s t e s t i m o n y w a s s o v a g u e a n d c o n t r a r y t o h e r p r e v i o u s o u t c r y 2

s t a t e m e n t s t h a t s h e w a s a n u n a v a i l a b l e w i t n e s s d e s p i t e a p p e a r i n g a t t r i a l , a n d t h e r e f o r e , w e n e e d n o t a d d r e s s t h i s a r g u m e n t

. A l t h o u g h t h e S t a t e ’ s b r i e f c o n t a i n s a f o o t n o t e e x a m i n i n g t h i s t h e o r y , w e f i n d A p p e l l a n t ’ s b r i e f d e v o i d o f
a n y s u c h a l l e g a t i o n e x c e p t f o r a s i n g l e s e n t e n c e t h a t c a n v a g u e l y b e c o n s t r u e d a s a “ c h a l l e n g e [ ] [ t o ] a n y t h e o r y o f l a w w h i c h t h e S t a t e h a s e m p l o y e d o r w i l l e m p l o y t o d e f e a t A p p e l l a n t ’ s 6 A m e n d m e n t r i g h t t o c o n f r o n t t h e t h

e v i d e n c e
. ” T h u s , t h e c o n t e n t i o n , e v e n i f r a i s e d , i s i n a d e q u a t e l y b r i e f e d

. S e e T E X

. R

. A P P

. P

. 3 8

. 1

.
I n t w o s e n t e n c e s , A p p e l l a n t c h a l l e n g e s t h e c o n s t i t u t i o n a l i t y o f T e x a s C o d e o f C r i m i n a l P r o c e d u r e a r t i c l e 3 3 8

. 0 7 1 o n i t s f

a c e a n d a s a p p l i e d , a s s e r t i n g t h a t i n t h e w a k e o f C r a w f o r d , t h e p r o c e d u r a l o u t c r y s t a t u t e d e s t r o y s a d e f e n d a n t ’ s r i g h t t o c o n f

r o n t a t i o n
. W e d e c l i n e t o a d d r e s s t h i s a r g u m e n t a s A p p e l l a n t ’ s a s s e r t i o n , c o n s i s t i n g o f o n e s e n t e n c e w i t h n o l e g a l a n a l y s i s o r c i t a t i o n s t o a u t h o r i t y , i s i n a d e q u a t e l y b r i e f e d

. S e e T E X

. R

. A P P

. P

. 3 8

. 1

.App.–Hou s to n [1 4 th Dist.] 2006, pet. ref ’d) (finding admission of complainant’s ty ped statement did

not violate confr ontation rig hts when complainant testified at trial and was subject to crossexamination); Hanson v. State , 180 S.W .3d 726, 731 (Tex. App.–Waco 2005, no pet.) (dete rmining
that neither Crawf

ord nor defe ndant’s confr ontation rig hts wer e violated when outcry testimony was
admitted s ince child victim testified at trial); Soto v. Stat e , No. 2-07-191-CR, 2008 WL 2553345, at *3 (Tex . App.–For

t Worth J une 26, 2008, pet. r ef’ d) (mem. op., not desig nated f or publ ication) (holding defe ndant’s confr ontation rig hts to outcry witness’s rec antation of child’s outcry wer e not
violated when child appea red and testified at trial); Robbins v. State , No. 07-05-0207- CR, 2005 WL 2898067, at *2 (Tex. App.–Amar illo Nov. 3, 2005, no p et.) (mem. op., not desig nated for publication) (bec ause outcry witness and victim wer e both prese nt at trial, defe ndant’s confr ontation rig hts under Crawf

ord wer e not violated when outcry witness testified); Moreno v. State , No. 13-03- 00649-CR, 13-03-00650-CR, 2005 WL 1413491, at *2 (Tex. App.–Corpus Christi M ay 26, 2005,
pet. ref ’d) (mem. op., not desig nated for publication) (holding Crawf ord inapplicable to admission
of outcry statements and fore nsic videotape interview when victim testified at trial). We there fore

overr ule Appellant’ s first issue.

MEDICAL CAR

E INST RUCTION Appellant’s second issue contends that the trial court err ed by failing to include his r equest
for a medical car e instruction in the jury char g e conce rning the digital penetr ation count. See T E X

. P E N A L C O D E AN N

. § 22.011(d) (Ve rnon Supp. 2009) (stating that it is a defe nse to penetr ation of the

anus or sexual org an of a child by any means if “the conduct consisted of medical car e for the child
and did not include any contac t betwee n the anus or sexual org an of the child and the mouth, anus,

or sexual org an of the actor or a third party ”). Gene rally , a defe ndant is entitled to a jury instruction

on any defe nsive issue raised by the evidenc e whether that evidenc e was raised by the prosec utionor the defe nse, or was wea k or strong , unimpeache d or contra dicted, and reg ardle ss of what the trial

court might have thought about the cre dibilit y of the e vidence

. Granger v. State , 3 S.W .3d 36, 38 (Tex. Crim. App. 1999); Smith v. State , 676 S.W .2d 584, 586-87 (Tex. Crim. App. 1984). Howeve r,

a defe ns iv e in struction is not appropr iate when the defe ndant’s defe nsive evidenc e fails to essentially
admit to ever

y element of the offe nse. Shaw v. State , 243 S.W .3d 647, 659 (Tex. Crim. App. 2007). Although an extremely close call, we find that none of the evidenc e prese nted at trial shows
that Appellant admitted to the offe nse. Appellant was char g ed with digital pene t ra t ion of the
victim’s va g ina. Appellant, howe ver, e x pressly denied ever penetr ating K.M.’s sexual org an with
his fing er or t h at h e i n v ad ed her “priva te parts.” Having denied the penetr ation element of the
offe nse, Appellant failed to admit ever y element of the offe nse such that the instruction should have
been included. See Shaw , 243 S.W .3d 660 (conc luding defe ndant was not entitled to defe nsive Good
Samaritan instruction for injury to a child when the defe nsive evidenc e failed to admit to the require d culpable mental state element for the offe nse); Aldrich v. State , 53 S.W .3d 460, 469-70 (Tex. App.–Dallas 2001) (conc luding defe ndant was not entitled to nece ssity instruction when she failed

to admit to all elements char g ed in the indictment), aff’d , 104 S.W .3d 890 (Tex. Crim. App. 2003).

Neve rtheless, Appellant, rely ing on W atrous v

. State , 842 S.W .2d 792 (Tex. A pp.–El Paso
1 9 9 2 , no pet.), and Peak v. State , 57 S.W .3d 14 (Tex. App.–Houston [14t h Dist] 2001, no p et

. ),

seems to sug g est that his examination, which resulted in wet fing ers, infers penetr ation. I n W atrous , the defe ndant, who was administering Vase line to the victim’s vag ina, testified that the victim told
him to st op beca

use his fing er w as too big

. W atrous , 842 S.W .2d at 794. Fr om this t estimony , it

was rational to infer that the defe ndant was admitting to penetr ation. Id

. at 795. Simi larly , in Peak , Appellant testi fied that while he chec ked the co m p l ai n an t ’s hy men t o deter

mine whether she was

preg nant, he inserted his fing er into her vag ina. Peak , 57 S.W .3d at 17. Her e, howeve r, Appellant’sstatement at most admitted that his fing er touched K.M.’s labia, and at trial, he testified that he

“s p rea d her chee ks” to “look to see if there was any swelling , any scar ring , [or] any indic at i o n

exte r n a l l y t hat she had been injured;” he specific ally denied that he place d his fing er inside her

vag ina or anus, stating that h e “did not have to” as he “wa s looking for exte rnal signs of any injuries.” (Emphasis added)

. See Vernon v. State , 841 S.W .2d 407, 409-10 (Tex. Crim. App. 1992) (pene tration occur s wher e there i s “tac tile contac t beneath the fold of complainant’s external

g enitalia” a

nd the contac t is more intrusive than contac t with the outer labia) . Thus, althoug h this

appea rs to be a close call, we find Appellant’s de fensive e vidence did not admit to t he pene tration
element of

the offe nse, and there fore , he wa s not entitled to a medical c are instruction. See Callis

v. State , No. 01-89-00159- CR, 1990 WL 68465, at *3 (Tex. App.–Houston [1st Dist.] May 24, 1990,

no pet.) (op., not desig nated for publication) (holding defe ndant not entitled to m ed i ca l car e
instruction when he f

ailed to admit to penetra ting c hild victim’s vagina ).

Moreove r, even if we wer e to conclude that Appellant’s written statement was some, slight
evidenc e that could be interpre ted as an admission of penetr ation, Appellant was still not entitled to
the instruction. The statute provides that it is a defe nse to prosec ution for digital penetr ation if the
conduct was for medical car e. See T E X

. P E N A L C O D E AN N

. § 22.011(d). The term “medica l c are ”
is not define d in the statute and we do not attempt to define it here

. Rather, we simply note that the

statute is a narr ow exception , ex cu s i ng very limit ed conduct such as examination by medical profe ssionals or trea tment of infec tions or injuries by the pare nt. See W atrous , 842 S.W .2d at 794 4 (par ent apply ing Vase line to g enitals to soothe the pain from hurtful urination); Nichols v. State , No.
11-06-0034 9-CR, 2008 WL 2841853, at *1 (Tex. App.–Eastland J uly 24, 2008, pet. ref’d) (mem.

W e d e c l i n e t o a d o p t t h e p r o s e c u t o r ’ s c o n t e n t i o n a t t r i a l t h a t t h e d e f e n s e o n l y a p p l i e s t o a m e d i c a l c a r e 4 p r o v i d e r
.op., not desig nated for publication) (par ent following doctor’s instructions to apply Desitin to child’s

boil located outside vag inal are a); Calli s , 1990 WL 68465, at *3 (par ent cover ing g enitals with a

war m towel to stop bleeding from falling down the stairs). The statute is not meant to apply , in our opinion, in case s such as this one when the pa rent suspec ts his child has be en sexually abused and

proce eds, without any medical education, training , or experience , to e x amine the are a. See Lynch 5

v. State , 952 S.W .2d 594, 598 (Tex. App.–B eaum o n t 1997, no pet.) (finding defe ndant had no training in med ical car e and his conduct in examining child’s hy men on suspicion that she was having sex with her boy friend was not providing medical trea tment within the statute). That should
be left to the medical profe ssional. Acc ording l y , we conclude Appellant’s conduct in examining

K.M. “provide d h er with no medical trea tment or value whatsoeve r,” and there fore , he was not
entitled to the instruction. See Lynch , 952 S.W .2d at 598; see also Burleson v. State , 791 S.W .2d 6
334, 339 (Tex. App.–Austin 1990) (conc luding defe ndant not entitled to instruction on medical car e
when sexual intercour se with child for purposes of helping the child cope with her abnorma l interest
in sex was for “tre ating ” a “discipline problem,” not for purposes of providing m edica l car e), pet.
dism’d as improvidently granted , 819 S.W. 2 d 5 3 7 (Tex. Crim. App. 1991). Appellant’s second issue
is overrule d.
CONCLUSION Having overr

uled Appellant’ s issues, we af firm the trial c ourt’s judg ment.

A l t h o u g h A p p e l l a n t t e s t i f i e d t h a t h i s u n d e r g r a d u a t e d e g r e e w a s i n b i o l o g y , h e f a i l e d t o r e l a t e a n y m e d i c a l 5

c l a s s e s , t r a i n i n g , o r e x p e r i e n c e t h a t w o u l d q u a l i f y h i m t o m a k e s u c h a n e x a m i n a t i o n o f K

. M

.
A t t r i a l , A p p e l l a n t r e q u e s t e d t h e i n s t r u c t i o n f o r t h e d i g i t a l p e n e t r a t i o n c o u n t o n l y , b u t o n a p p e a l , 6 A p p e l l a n t c o n t e n d s t h a t h e w a s e n t i t l e d t o t h e i n s t r u c t i o n f o r l i c k i n g t h e a n u s , a s w e l l

. H o w e v e r , A p p e l l a n t w a s n o t
e n t i t l e d t o t h e i n s t r u c t i o n a s t h e s t a t u t e e x p l i c i t l y s t a t e s t h a t t h e i n s t r u c t i o n i s n o t a v a i l a b l e t o a n y c o n t a c t b e t w e e n t h e c h i l d ’ s a n u s a n d t h e d e f e n d a n t ’ s m o u t h

. S e e T E X

. P E N A L C O D E A N N

. § 2 2

. 0 1 1 ( d )

.GUADA L UPE RI VERA, J ustice

J une 16, 2010

Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)