## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

NO. PD-0918-20 BRIAN CHRISTOPHER REED, Appellant

v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS

BRAZ OS COUNTY W A L K E R 

### , J., delivered the opinion of the Court, in w hich KE L L E R 

### , P.J., and RI C H A R D S O N 

### , N E W E L L 

### , S L A U G H T E R 

### , and M C 

### C L U R E 

### , JJ., joined. H E R V E Y 

### and Y E A R Y 

### , JJ., concurred in the result. KE E L 

### , J., dissented. O P I N I O N

The indictment charg e d Appellant B rian Christopher R e e d w ith sex ual a ssault by p enetrating the victim’s sex ual org an with his sex ual org an, but the jury c onvicted him of the lesser-included of f ense of attempted sex ual assault. The jury charg e’s application paragraph for the lesser did not limit the means of p enetration to his sex ual org an, a nd the c harg e’s definition of sex ual assault told the jury that penetration could b e committed “by any means.” The jury a lso heard some e vidence that Appellant ma y h ave used his mouth, not his sex ual o rg an. The c ourt o f appeals c oncluded that2

Appellant was egreg iously harmed by

the charg e error and reversed. Assuming , without deciding , that the charg e was erroneous, we f ind that the c ourt of appeals

overe s t i m a t ed the harm because the possibility that the charg e error led the jury to find Appellant guilty of attempting to sex ually assault the victim w ith his mouth instead of his sex ua l o r gan is hy pothetical at best. A lthoug h there was a conflict in the evidence over whether Appellant used his

sex ual org an or used his mouth, the dispute o ver the means of penetration was tied-up with and ancillary to the g reater question of whether to believe the victim’s claim that, when Appellant used his sex ual org an, it was not consensual or Appellant’s claim that, when he used his mouth, it was consensual. The case larg ely revolved around consent. F urthermore, th e S t a t e did not tell the jury it c ould convict if it thoug ht Appellant used his mouth. L ikewise, the defense did not argue that he should be acquitted because he h ad committed a different offense than what he was charg ed with. Instead, the defense criticiz ed the State’s failure to forensically prove penetration by sex ual org an. The harm does not rise to eg reg ious harm. W e reverse a nd remand this case to the court of appeals. I — Background Tex as A& M student M.K. celebrated her twenty

- third birthd a y b y spending the nig ht out drinking in Colleg e Station with her friends. 1 The birthday group started their n ig ht out at W ing s N More and ultimately

ended up at a bar called The Tap. Appellant, a refinery

worker for the Valero Oil Company, was in Colleg e Station to attend work-related training

. His g roup had ended their final day of training , and they also spent the nig ht

1 Althoug h the record does not include a pseudony m form filed by the victim, we will refer to the victim with the p seudony m “M.K.” used by the court of appeals a nd by the p a rties in their briefing to this Court. SeeT E X
. C O D E C R I M
. P R O C . Ann. arts. 58.102(a), 58.101(a)(1) (victim of a reportable offense may elect to use a pseudony m by completing a prescribed p seudony m form); art. 62.001(5)(A), (G) (reportable offenses include attempted sex ual assault).3

out drink i n g. T hey w ent to the hotel bar, a B uffalo W ild W ing s, a Mex ican food restaurant, and eventually ended u

p at T he Tap . W hile there, M.K.’s roommate Caitlin Scott struck up a

conve r s a t ion with a member of Appellant’s g roup, Trevor Allen. M.K. became intox icated and needed to g o home, and one of her friends drove M.K. and Scott back to their nearby condo. U p o n r e turning home, M.K. went upstairs to her bedroom. Some time later, Allen a n d Appellant arrived at the condo. Appellant asked Scott where the bathroom was, and she directed him upstairs while she remained d ownstairs with Allen. W hat happened when Appellant went upstairs is disputed. According to M.K., she w as a sleep and woke up to a man on top o f her, with his penis in her vag ina. M.K. screamed out Scott’s name, pushed the man off, and left the room. Scott heard M.K. y e lling and went upstairs to check o n her. 2 M.K. and Scott passed by each other in the hallway , 3 and M.K. went into Scott’s bedroom while Scott went into M.K.’s room. W hen Scott went inside, she f

ound an apolog etic Appellant sitting naked on the bed. Scott y elled at him and pushed him back downstairs. Appellant dressed at the bottom of the stairs a nd, thinking his coworker, Trevor Allen, had already left, walked back to his hotel. W h ile in Scott’s room, M.K. heard Scott y elling

. M.K. beg an to process what h a d h appened, and she beg an c r

ying a n d became hy sterical. She called friends and her brother to r e port that she had been rape d

. O n e o f t h o se friends, Cassidy J ackson, had been out with M.K. earlier that nig ht and came over rig

ht away and called 9-1-1.

2 Scott did not remember what M.K. w a s y e l l i ng or saying

. Scott recalled feeling like she needed to g o upstairs.

3 Scott and M.K.’s testimony a t t r i al seem to indicate no words were ex chang ed in the hallway

. Scott did not remember if she made direct contact with M.K. on her way to M.K.’s room. M.K. testified that she encountered Scott in the hallway , but M.K. did not provide a ny further testimony about that encounter. She told the jury that she went and sat on Scott’s bed.4

J ackson drove M.K. and Scott to the hospital, where M.K. was subjected to a sex ual assault

ex amination. M.K. and Scott also spoke w i t h t h e investig ating detective Rick Vessell, who noted that M.K. w as still intox icated. F rom Scott, Vessell learned that the suspect was named “ B rian” and mig ht be staying at the H ilton. A nother officer w as able to g e t confirmation f r om the hotel of a g uest matching the description. Upon arriving at the hotel room, the officers knocked, a nd, after some delay , Appellant answered and allowed Vessell to come in. After introducing himself, Vessell asked Appellant if he had g one to a house earlier that nig ht with A llen, and Appellant answered that he was there for four o r five minutes. Telling Appellant that he was not under arrest, V essell nevertheless provided Miranda warning s. Vessell then informed A p p e l l a n t that a naked man matching his description w as in M.K.’s room h aving sex with h e r . Appellant denied beingthat man, and he recounted his g roup’s nig h t out which ended at The Tap. After leaving the bar, Appellant w ent with Allen over to the condo where he sat on the couch for a little bit and then went back to the hotel. Vessell told Appellant that a lot of what Appellant said w as probably the truth. B ut he also told Appellant that M.K. woke up to Appellant having sex with her, and that Scott saw him naked

on the bed. Appellant ag a in denied that it was him—he promised Vessell that it was not him. Then Vessell told Appellant that the suspect matched Appellant’s description a nd that h e was picked out of a photo lineup. 4 Sug g esting that Appellant probably just made a mistake and n oting that Scott said the person seemed g enuinely remorseful, Vessell asked Appellant to tell his side of the story because this was the only chance to ex plain what happened when he went upstairs to use the bathroom and

4 Vessell testified at trial that there was no photo identification, and he misled Appellant in order to “block his lies.”5

how a nd why he ended up naked in M.K.’s room. Vessell told Appellant “if it was consensual, it was consensual,” a phrase he would use several times during the interview. Vessell asked Appellant to walk him throug h what happened that nig ht. Appellant said Allen

was g o ing to meet a woman that A llen had met at T h e T a p, and Appellant went a long because Allen

was his ride. Initially , he sat o n the couch with Allen. He had to use the bathroom, and Scott told him
to g o upstairs. He found “some lady” in the bathroom passed out on the floor. H e helped her up and flushed the commode because she had vomited. He helped her to her bedroom, and he told Vessell “yeah, every

thing was consensual.” He could not remember what clothes M.K. was wearing when he found her, but “y

eah, we had consensual sex .” Appellant a sked if he was being charg ed with any thing , but Vessell told him that he was not under arrest and they w ere just talking

. However, Vessell did c onfirm Appellant’s concern that M.K.

was saying he raped h er. B ecause of this, Vessell told Appellant “That’s why I need y our side of the story

. There’s two people involved in this act. She’s say s it wasn’t consensual. You’re saying it was. That’s where we’re at.” Appellant repeated that the encounter was consensual. Appellant further ex plained that he found M.K. lying on her side in the b athroom. I t was her birthday , and he told her “birthday g irl, y ou h a d way too much fun.” She started kissing on his neck, and it “escalated from there.” Vessell asked if “escalated from there” meant they had sex . He asked “Did y o u h ave v ag inal intercourse? ” and followed-up with several questions on where Appellant put his sex ual org an. Appellant promised Vessell that he d id n ot use his sex ual org a n, and “all [ he] did was kiss on her.” In response to Vessell’s q

u estion of how M.K. ended up naked, Appellant said she undressed herself. As for himself, he stated that he “very well could have been.” Vessell asked if he was naked6

because he was planning on having sex . B efore Appellant c ould answer, Vessell asked how the
encounter stopped and why M.K. left the room. Appellant “guess[ e d] he wasn’t doing a very g ood job,” and he briefly

chuckled. Appellant ag ain denied usinghis sex ual org an, and he repeated that he was only

“kissing on her.” Vessell told Appellant he thoug ht Appellant was b e i n g m o s t ly truthful ex cept about not penetra t i n g M

. K.’s sex ual org an with his sex ual org a n. Vessell bluntly stated “a g irl knows” and M.K. said Appellant w as inside of h er “actively eng ag ed in thrusting .” Vessell flatly told Appellant he did not believe his story

. A fter Appellant said he was being “ dead honest,” Vessell reminded him that he initially denied being at the c ondo, then a dmitted to b eing in the condo b ut not g oing upstairs, then a dmitted to g oing upstairs, then admitted to being in the bed, and then admitted to being naked. Vessell n eeded Appellant to talk “about this penis part.” Vessell w arned Appellant that M.K. was currently being ex amined a nd proof would come out that Appellant really did p enetrate h er sex ual org an with his sex ual o r ga n . V e s sell predicted that Appellant would then admit to intercourse, makinghim look like a liar ag a in. Vessell told Appellant to tell the truth now. Vessell asked if it was possible that Appellant was drunk a nd did not notice it. Appellant said he mig ht h ave “rubbed on her for a minute, may be,” but he did not remember ever doing that. All he remembered was “eating her out.” Vessell, w anting “to help [ Appellant] decide where [ his] penis was,” told Appellant that M.K. was on h e r period and her tampon was pushed up inside where it would not be unless something was stuck u p in there, so that was more evidence Appellant’s sex ual org an was inside her. 5

5 Althoug h it was true that M.K. was on her period, she did n ot have a tampon in at the time. On the nig ht of the offense, M.K. initially thoug ht her tampon was still inserted, b ut she testified at trial that she habitua l l y r e m o v e d a ny tampon when g oing to sleep, and the nurse at the hospital7

Vessell told Appellant th a t h e a l r e a d y k n ew every thing , including that Ap pellant h ad sex with M.K., and he was g iving Appellant a chance to ex plain. Appellant repeated that it was consensual. He said that she came on to him, and she was fine with it. After Vessell asked if Ap pellant would still maintain that he did not put h is sex ual org an in M.K. or if h e would admit that it h appened, Appellant responded that “it’s very possible.” Appellant was indicted for sex ual assault for alleg edly penetrating M.K.’s sex ual org an with h i s sex ual org an without her c onsent. At trial, M.K. testified that she had g one to sleep rig ht after g etting home from The Tap, and she woke up with Appellant’s penis in her vag ina. She did not even know who Appellant was, and she d id not consent to having sex with him. Appellant testified in his defense, an d h e t o l d t he jury what he had told to Vessell: that it was consensual and he only performed oral sex . He admitted that he was not initially truthful with Vessell because he did not want to admit that he had been unfaithful to his wife. F ollowing the close of e vidence, the trial court held the charg e conference off the record after which the State had no objections and Appellant had “[ n] o f urther objections.” The trial court g ave the jury instructions wh i c h included lesser-included offenses for attempted sex ual assault and assault by o ffensive or p rovocative touch. T h e application paragraph for the attempted sex ual assault lesserincluded o ffense tracked the statutory languag e and told the jury to convict Appellant if it found he had the intent to commit “Sex u al Assault” and did an act that amounte d t o m o re than mere preparation that tended but failed to effect the c ommission o f the offense in t e n d e d (i.e., “Sex ual Assault”). 6 “Sex u al Assault” w as defined in t h e s t a t u t o ry languag e , and the jury was told that a testified that no tampon was found during the ex amination.

6 SeeT E X
. P E

N AL C O D EAnn. § 15.01(a).8

person c o m m i t s “ S e x u al Assault” if he intentionally or knowing ly penetrates the a nus or sex ual org an of another person, not his spouse, by any means without that person’s consent. 7 The jury convicted Appellant of the lesser-included o ffense of attempted sex ual assault. F or that third-degree felony the jury a ssessed a punishment of three y e ars and six months a nd a $1,000 fine. Appellant raised three issues on a ppeal, one of which was that the trial court’s charg e for the lesser-included offense o f attempted sex ual assau l t s h o u l d have been limited to the indictment’s alleg ation that Appellant used his sex ual org an. R eed v. State , 608 S.W .3d 856, 859 ( Tex

. App.—W aco 2020). T he court of appeals ag reed and determined that the jury charg e was erroneous because it ex panded the theory of liability beyond the languag e of the indictment, and the jury could have convicted him of attempting s e x u a l a s s ault “by a ny means.” Id. at 8 60. T he court of appeals then found that the error caused eg reg ious harm and according ly reversed. Id. at 862. 8 Chief J ustice Gray dissented. Id. at 862 (Gray , C.J

. , dissenting ). Even thoug h he concurred that there was error in the charg e, he believed the error was harmless. Id. at 863. Chief J ustice Gray thoug ht the jury would have to g o throug h “mental g y mnastics” in order to read “Sex ual Assault” under its abstract definition for the purposes of the lesser-included offense. Id. Chief J ustice Gray also thoug ht that n ot onl y would such a reading g o a g ainst the log ical flow of the c harg e, the evidence and especially the parties’ closing arguments w eig hed ag ainst a finding o f eg reg ious harm. Id.

7 SeeT E X
. P E N AL C O D EAnn. § 22.011(a)(1)(A).

8 B ecause the charg e issue was dispositive of the appeal, the court of a ppeals d eclined to address Appellant’s other two issues. Reed, 608 S.W .3d at 862 n.3.9

W e g ranted the State’s petition for discretionary review, which complains that: The court of appeals erred in finding eg reg ious harm, where the record is clear that the jury understood that a convicti o n fo r t he lesser included offense of attempted sex ual assault would be based on Appellant’s attempted penetration of the victim’s sex ual org an by

Appellant’s sex ual org an. W e sustain the State’s g round for review. Assuming that there was error in the charg e that may have authoriz ed the jury to convict if it found that Appellant tried but failed t o p enetrate the victim’s

sex ual org a

n by any means other than his sex u al org an, and there was some evidence that he used his mouth, that possibility is too remote for the error to have caused Appellant eg reg ious harm. II — Egregious Harm I f charg e error is found, the appellate court must a naly z e th a t e rror for h arm. Campbell v. State , 664 S.W .3d 2 40, 245 (Tex

. Crim. App. 2022); Kirsch , 357 S.W .3d at 649; Arline , 721 S.W .2d
at 351. I f the e rr o r was the subject of a timely objection, reversal is required if the error was calculated to injure the rig h ts of the appellant, which means no more than that there must be some harm. Almanza v. State , 686 S.W .2d 157, 171 (Tex

. Crim. App. 1985) (op. on r eh’g ); Cyr v. State , 665 S.W .3d 5 51, 556 (Tex

. Crim. App. 2022). B ut if there was no proper objection to the err o r , a reversal will b e g r anted only if the error p r esents e g reg ious harm, meaning that the appellant did not receive a fair and impartial trial. Almanza , 686 S.W .2d at 171; Cyr , 6 65 S.W .3d at 556. Under either
t h e “ s ome harm” standard o r the “egreg ious harm” standard, to obtain a reversal for jury c h a r ge error, the appellant must have su f fered actual harm and not merely theoretical harm. Sanchez v. State , 376 S.W .3d 7 67, 775 (Tex . Crim. App. 2012); Arline , 721 S.W .2d at 352; Campbell , 664 S.W .3d
at 245 (some h a

r m) ; A lcoser v. State , 663 S.W .3d 160, 165 (Tex

. Crim. App. 2022) (egreg ious harm).10

B e cause there was no proper object i o n t o t h e e rror, 9 we r eview for eg reg ious harm. J ury charg e error is eg r eg iously harmful if it affects the very b a sis of the case, deprives the defendant of

a valuable rig ht, or vitally affects a defensive theory

. Stuhler v. State , 218 S.W .3d 7 0 6 , 7 1 9 (Tex

. Crim. App. 2007); Alcoser , 663 S.W .3d at 165. In determining whether charg e error resulted in eg reg ious harm, we consider: (1) t h e e n t i r e j u ry charg e; (2) the state of the evidence; (3) the final arguments of the parties; a n d (4) any other relevant information revealed b y t h e t r ial court as a whole. Stuhler , 218 S.W .3d at 719; Allen v. State , 253 S.W .3d 260, 264 (Tex . Crim. App. 2008). II(1) — The Entire Jury Charge As discussed above, the court of appeals found the charg e for the lesser-included offense of attempted sex ual assault was erroneous because it allowed the jury to find Appellant gu i l t y on a theory not alleg e d in the indictment. The court of a ppeals concluded that the error affected the very basis of the case and therefore was eg reg iously harmful. Reed, 608 S.W .3d at 861. A s the court of appeals saw it, the instruction allowed the jury to consider penetration by any means including his mouth, and there was “ a sig nificant possibility ” that Appellant was c o n v i cted w ithout the jury ’s unanimous ag reement that he tried, but failed, to penetrate M.K.’s s e x u a l org an with his sex ual org an. Id. W e do n ot doubt that there is a possibility that the jury , reading the instruction for the lesserincluded offense of attempted sex ual a s s a u l t , understood “Sex ual Assault” to mean “Sex ual Assault” strictly as defined in the abstract porti o n o f the charg e. B ut is there a “sig nificant possibility ” that

9 As noted a

bove, following the off-record c harg e conference, Appellant’s defense counsel repli e d t h a t he had “ [ n] o f urther objections.” Althoug h the record contains some indication that Appellant had some objections to the court’s charg e, the r ecord fai ls to show what Appellant’s objections were and whether they were specific and timely enoug h to preserve error.11

the jury : 1. considered the charg ed offense that Appellant sex u ally assaulted M.K. by intentionally o r knowing ly penetrating her sex ual org an with his sex ual org an without her consent; 2. decided that the evidence did not prove the charg ed offense beyond a reasonable doubt; 3. moved on to consider the lesser-included offense of attempted sex ual assault; 4. jumped back to the first pag e of the court’s charg e for the a bstract definition of “Sex u al Assault”; 5. and jumped forward over the charg e d offe n se’s application paragraph to consider attempted sexual assault usingthe abstract definition?

I t is possible. B ut as Chief J ustice Gray colorfully

put it:

one has to be a mental g y

mnast to run past the g reater offense to the lesser, and then do a back-flip back to the abstract portion of the charg e for the definition of sexual assault on all the o ther theories for how to commit sex u al assau lt, before then vaulting over the specific theory to land on an attempt to commit sex ual assault on a theory other than the gr eater offense[ .] Reed, 608 S.W .3d at 863 (Gray , C.J ., dissenting ). W e ag ree with him that “ m e n t a l gy m n astics” would be required of the jury to reach its verdict in such a manner. Id. A lthoug h it may be within the universe of possibility , we think the possibility to be t h e oretical at best and not “sig nificant.” See Sanchez , 376 S.W .3d at 775 (actual harm, not theoretical harm). W h at we do find sig n ificant is the fact that the application paragraph for the charg ed offense ended with: y ou will find the Defendant “not guilty ” of Sex ual Assault a nd g o on to consider the lesser-included offense of Attempted Sex ual Assault[ ,] and the application paragraph for the attempted sex ual assault lesser-included offense beg an with:12

bearing in mind the foreg oing instructions[ .] W e g enerally p resume that the jury followed the trial c ourt’s instructions. A llison v. State , 666 S.W

. 3d 750, 765 (Tex

. Crim. App. 2 0 2 3 ) ; T h r i f t v . State , 176 S.W

. 3d 221, 2 2 4 (Tex

. Crim. App. 2005) (“On appeal, we g enerally presume the jury follows the trial court’s instructions in the manner presented.”). Thus we presume that the jury , in “finding [ Appellant] ‘not guilty ’ of Sex ual Assault

. . . [ went] on to consider the l e s s er - i n c luded o ffense of Attempted Sex ual Assault,” and in so considering , “[ bore] in mind the foreg oing instructions.” W hile the abstract definition o f “Sex ual Assault” was in an earlier part of the charge and thus literally part of “the foreg oing instructions,” the application p aragraph for the charg ed offense—including its sex ual org an limitation—was the immediately p re c e d i n g i nstruction that the jury had just moved on from. I t is more likely that the jury , following the instruction to “ bear[ ] in mind t h e foreg oing instructions,” understood “Sex ual Assault” to mean the charg ed offense that it had just acquitted Appellant of. W ith reg a

rd to the entire j u ry charg e , we find that while this factor weig h s in favor of a findingof some theoretical harm, it does not weig hin favor of eg

reg ious harm. II(2) — The State of

the Evidence Turning to the state of the e v idence, the evidence relevant to the means of penetration and whether the jury c ould have found Appellant penetrated M.K.’s sex ual o rg an “by a ny means” other than his sex ual o rg an consisted of M.K.’s account, Appellant’s account, and a pair of underwear belong ing to Appellant with a notable stain. M.K. ex plained that when she g ot home, she went straig ht upstairs to her bedroom and went to sleep. Althoug h she could not specifically remember what she wore to bed that nig ht, she would alway s wear the same shirt to bed with either pajama pants or just underwear. Yet when she woke13

up that nig ht, she had no underwear on, and someone was in her room and on top of her. Officer Newton took a statement from M.K. at the condo. She told him that she w oke up and pushed some guy off of her. She said the guy w as c ompletely n aked and his penis was in her vag ina. M.K. told the jury that, after she spoke with responding o fficers at the condo, she went to the hospital where she underwent a sex ual assault ex amination

. W h ile at the hospital, she spoke with officers there, and M.K. acknowledg ed that she told them that the guy was “try ing to have sex ” with her a nd that h e “attempted to have sex ” with her. B ut she a dded that she immediately told them that the guy ’s penis was inside of her. Meg han Martin, a sex ual assault nurse ex aminer, ex amined M.K. at the h ospital. Martin did
not remember the ex amination, but according to h er records M.K. reported that she went to bed alone and woke up with a man on top, v ag inally penetrating her. Martin ex plained to the jury that vag inal penetration meant, in lay

man’s terms, that something went into M.K.’s vag ina. Martin a lso stated that althoug h M.K. said she was c urrently on her p eriod and had a tampon in, a tampon was not found duringthe ex amination. Rick Vessell, the investig ating detective, met with M.K. at the hospital. M.K. told him that the suspect attempted to have s e x w i t h her, b ut Vessell ex plained that althoug h that was “the

ex p ression she’s using , . . . she said his penis was in her vag ina.” M.K. also told Vesse l l t h a t the

s u s p ect tried to have sex w ith h e r , and ag ain Vessell ex plained that she “ also said h is penis w a s inside of her. B ut it’s c o mmon – that’s a phrase commonly used. I ’ v e h ea r d t h at before in investig ations, tried to have sex with me. That doesn’t mean it didn’t happen.” Vessell told the jury about his interview of Appellant, which was recorded and play ed for the jury

. Vessell asked Appellant about what happened at M.K.’s apartment. Appellant initially claimed14

that he o n l y s t ay ed downstairs for a few minutes, but after prodding Appellant eventually told Vessell that h e only p e r f

ormed oral sex o n M.K. He denied putting his sex ual org an in her sex ual org an or her anus. Yet on the recording , Appellant made e quivocal concessions that h e mig ht have rubbed on M.K.’s sex ual org an and that it was possible that he did put his sex ual org a n in M.K. Vessell was skeptical of Appellant’s claim that he performed oral sex , because when Vessell

was at the hospital, he learned that M.K. had reported to the nurse that she was menstruating

. Vessell thoug ht performing oral sex on a woman that was on her period was odd. Additionally , duringthe interview, Vessell sug g ested to Appellant that he mig ht have not even noticed putting his sex u a l org an inside of M.K. because he was drunk, and Appellant replied that his sex ual org an may have rubbed on M.K.’s sex ual org an. Aft e r t h e interview, Appellant g ave consent for V essell to collect some items in the hotel
room, including a pair of underwear

. O n t h e day before testifying , Vessell n oticed a dark colored stain on the crotch of the underwear that h e had previously missed. V essell o p i n e d t h a t t h e stain looked like blood, and he found that sig nificant because h e recalled that M.K. had been menstruating
at the time of the inci d e nt. The presence of menstrual blood on Appellant’s underwear would be inconsist e n t w i t h Appellant’s story that he did not penetrate M.K.’s sex u al o rg an with his sex ual org an. The stain had not been tested, and Vessell conceded that the failure to do so was a mistake. However, Vessell said testing would not show whether there was consent; it only shows whether an act happened, and identity was not in doubt. Nancy Downing , another sex ual assault nurse ex aminer, testified as an e x p ert f or the State. On cross-ex amination, Downing opined that finding semen or sperm in the vag inal swab would be the b est evidence of penetration, but male skin cells and prostate fluid (“pre-ejaculate”) c an support15

penetration as well. On r e-direct, Downing ag reed that, if a victim were on her period, a larg e amount of discharg e could dilute any foreign sample in the vag ina. Downing also noted that, even if DNA

were re covered, it would not show whether the encounter was consensual; DNA would only establish that two people had sex u al contact and who those individuals were. Notab ly , Downing

ex p lained to the jury that the male sex ual org an is the p e n is, and oral sex would not constitute penetration by a man’s sex ual org an. However, oral sex would constitute sex ual a ssault under the meaningof the statute. Appellant testified in his o wn defense, and he repeated what he had told to Vessell. Appellant helped M.K. to her bedroom, “ one thing kind of led to another,” and he performed oral sex on her. Appellant claimed that he never p ut his sex ual o rga n i n s i d e of her. T h e State cross-ex amined Appellant at leng th and specifically asked questions aimed at impeaching h i s c laim that he only performed oral sex . Reg arding the stained underwear, Appellant ex plained that he d id not wear that particular pair that nig

h t. Appellant said that the stain was caused by a cheap vape pen that he had in his pocket. The vape p en broke and leaked onto his underwear while h e was training at the fire school. The evidence p e r t a i n i n g to the element of penetration essentially consisted of, on the one hand, M.K.’s version of events in which she told the jury and others that Appellant’s sex ual org an

was inside of hers, Appellant’s appare n t c o n c e s sion during the recorded interview that it was possible, a

nd a stain on Appellant’s underwear that V e ssell thoug ht looked like blood. On the other hand—aside from h is admission at one point in the recorded interview that he mig ht have penetrated her with his sex ual org a

n—Appellant was larg ely c onsistent in his claim that he only performed oral

sex , and he ex plained that the stain was caused by a broken vape pen. F inally , on what penetration16

even means, the jury h eard Downing ex plain that althoug h oral sex does not c onstitute p enetrating the v ictim’s sex ual org an with the suspect’s sex u al org an, oral se x could c onstitute sex u al assault under the meaning

of the statute. W h ile the jury h eard a version of events where Appellant used h is sex u a l org an as alleg ed in the indictment and the jury saw an ex hibit that would tend to support that account, the jury also heard a version of events where Appellant used his mouth. The jury was also told that “by mouth” is included in “by any means.” W ith reg ard to the state of the evidence, this factor weig hs in favor of a findingof egreg ious harm. II(3) — F inal Argum ent of the P arties During closing a

rgument, t h e S t a t e reminded the jury that M.K. said she woke up with Appellant’s penis inside her, and the State argued that the jury should believe M.K. over Appellant by pointing to M.K.’s consistent statements and attacking the log ic of Appellant’s story

. Reg arding the lesser-included o f

fen s e o f a ttempted sex ual a ssault, the State argued that there was no mere attempt—Appellant’s stained underwear was proof that Ap pellant’s sex ual org a n had a c t ually penetrated M.K.’s sex ual org an because her menstrual blood had transferred onto h is sex ual org an and from there onto his underwear. Much of Appellant’s closing argument focused on the State’s b urden of proof r eg arding the charg ed offense and the use of Appellant’s sex ual org an. D efense counsel argued that the State failed
to meet its burden because phy sical evidence was not tested for D NA. Counsel contended that, had the State tested for D NA a n d if Appellant’s DNA was found in the sex ual assault kit collected from M.K. at the hospital, it would prove that Appellant’s sex u a l org an had penetrated M.K.’s sex ual org an. A nd if the stain on Appellant’s underwear was tested, the results could c o n f irm the17

prosecution’s theory

that the stain was M.K.’s menstrual b lood, transferred onto the underwear by Appellant’s sex ual org an after penetration of M.K.’s sex ual org an. Defense counsel never put forth an arg ument that Appellant did not commit the offense as alleg ed because he used h is mouth, not his sex u al org an. 1 0 Notably , defense counsel briefly touched upon the lesser-included offenses. Counsel told the jury that “attempted sex u al assault w ould mean that he attempted to stick his penis in her vag ina and was not successful. T h a t ’ s w hat that would mean.” W h ile the jury could h ave disreg arded counsel, the d e f e nse argument steered the jury towards the a lleg ations of the indictment. As Chief J ustice Gray noted, “[ i] t could be said that the defendant actually argued the hy

pothetically correct jury charge

. ” R e ed , 608 S.W .3d at 863 (Gray , C.J ., dissenting ). The State’s rebuttal argument focused on attacking Appellant’s credibility and building up M.K.’s credibility . The State ag a in told the jury that M.K. said she woke u p with Appellant inside of her and she pushed him off, and the State frequently pointed to the stained underwear as proof. Admitting that it should have b e e n tested, the State argued that there was no time for testing because the stain had bee n n o t i c ed s hortly before trial. N e vertheless, the State argued that testing was not necessary because the issue w as consent, not identity

. The State also used the stained underwear as

an opportunity to attack Appellant’s c redibility by contending that his ex planation for the stain (vape pen broke and leaked) was unbelievable versus the State’s theory that the stain was M.K.’s menstrual blood.

1 0 The remainder of the defense argument tried to shore up Appellant’s credibility b y ex p laining that A ppellant’s hesitant and inconsistent statements to Vessell were a product of his shame and that his actions were inconsisten t w i t h t h at of a predatory rapist. The defense also challeng ed M.K.’s credibility by reminding the jury that she had admittedly g otten very intox icated that nig ht.18

W ith reg ard to the parties’ a r guments, there were no references to Appellant’s claim that he only p erformed oral s e x on M.K., and neither side argued that Appellant penetrated, or even attempted to penetrate, M.K.’s sex ual org a n by a ny other means than with h is own sex ual org an. The trial court’s erroneous instruction had no impact on the argument s o f the parties, and this factor weig hs ag ainst a finding of egreg ious harm. II(4) — Other Relevant Inf o rm ation O f c o urse, the jury received more than the c harg e, the evidence, and the argument s o f t h e parties. The jury a lso spoke with the parties in voir dire, and they heard o pening statements before evidence beg an. While neither constitute evidence, they present opportunities to influence the jury
to focus on particular issues and ty pes of evidence and may

have an impact on the jury ’s decision. In voir dire, the State briefly touched upon means of penetration in its d iscussion about the full rang e of punishment by illustr a t i n g t wo different scenarios constituting sex ual assault, one involving a fing er and the other involving sex ual intercourse

. 11 H o w e v e r, the prosecutor made it clear that he w as not referring to Appellant or this case and was o nly talking ab o u t t he crime of sex ual assault in g eneral.

1 1 Specifically , the p rosecutor soug ht to ex plain to the venire t h a t s e x u al a ssault is not necessarily

“sex ual in nature”: I ’m g oing to g ive y o u an ex ample of what I ’m talking about.

. . . I t was a hig h school baseball

. . . team, a bunch of 1 7

- and 18-y ear-old boy s in a hotel room a nd they are haz ing a newer member of the team and they

– o n e of them stuck a f ing er up this y oungman’s anus. You know, it wasn’t sex ual, they were just jacking with this kid because he was a new member of the team, rig ht? Does that behavior meet the elements of sex u al a ssault? Absolutely , it does. 1 7-y ear-old hig h school students doing that, wasn’t sex u al, just haz ing a teammate. Sex ual assault. On the flip side o f t h a t is y ou have somebody who has full-on sex ual intercourse with somebody a g ain[ st] their consent or without their consent. Sex ual assault; same crime.19

The defense voir dire beg an by ask i n g t h e venire about the p resumption of innocence and talking about the burden of proof. In ex p laining what the S t a t e w a s required to prove, defense counsel recited the alleg ations of the indictment, includingthat Appellant caused his sex ual org an to penetrate the sex ual org an o f the a l l ege d victim. B ut counsel immediately followed up by repeating that the State had to prove “without the effective cons e n t o f t h e v i ctim” beyond a reasonable doubt, a

nd “ that’s the big part. That’s what [the p rosecutor] said, a nd I think a lot of these cases boils down to consent.” In opening statements, the prosecution beg an by telling the jury that M.K. reported that she woke up to a strang er in her bed w ith his penis in h er v ag ina. The defense’s opening statement told the jury that Appellant had cheated on his wife but made n o allusion as to how, whether it was by

sex ual org a

n, by mouth, or by

any other means. F rom our review of the record, althoug h there was a brief mention during voir dire that sex ual assault in g eneral could be committed by means other than by sex ual o r ga n , t h e v enire was not specifically told that “by mouth” could b e one of those way s, and there was no reference during voir dire or opening

statements by

either party that Appellant used or tried to use any means other than his sex ual org an. These parts of the trial do not weig h towards a finding of egreg ious harm. III — Conclusion Conside r i n g t h e en tire jury charg e , the state of the evidence, the f inal arguments of the parties, and any other relevant information, we find that, even if the instru c t i o n f o r t he lesserincluded offense of attempted sex u al assault that Appellant w as convicted was erroneous, that error did not affect the very basis of the case, deprive him of a valuable rig ht, o r vitally affect his defensive theory

. While there was conflictin g e v i d e n c e a s t o whether Appellant penetrated M.K.’s sex ual org an20

with his sex ual org an or p erformed oral sex on M.K., the v ery hotly contested and argued issue was consent. The lawyers tried the case as a consent case, and from the start of trial until its c onclusion, Appellant’s defensive theory w as h e had a drunken but consensual encounter with M.K., and the prosecution theory was that Appellant took advantag e of an overly intox icated woman who did not consent to any sex ual encounter. Defensive theory aside, the defense strategy was not to ask the jury
to acquit because Appellant had committed a different act than what the State h ad charg ed him with. The d efense strategy was to rehabilitate Appellant’s credi b i l i t y , c halleng e M.K.’s credibility , and focus on the failure to test supposedly inculpatory evidence which c ould have confirmed penetration and thus M.K.’s version of events, such as the sex ual as sault kit a nd especially the stain on Appellant’s underwear that Vessell testified looked like blood and that the State had v i go r o u s l y argued was M.K.’s transferred menstrual blood. There may be some theoretical h a rm , b u t the record here does n ot show e g reg ious harm. Therefore, we sustain the State’s sole g round for review. The judg ment of the court of appeals is reversed, and this case is remanded to the court of a ppeals to consider Appellant’s r emaining issues.

Delivered: December 20, 2023 Publish