Cornet v. State, 2013 Tex. Crim. App. LEXIS 1654

Defendant Walter Cornet was charged with three counts of aggravated sexual assault of a child based on a single alleged March 2006 incident involving his eight‑year‑old stepdaughter.
Cornet gave a written statement and testified that he examined the child for medical reasons (a "medical‑care" justification), admitting touching her genitals but denying intent for sexual gratification and denying oral‑to‑anus contact or vaginal penetration.
The jury convicted Cornet of two counts: digital penetration of the child's sexual organ (count one) and oral contact with the child's anus (count three); the court granted a directed verdict on the other count.
Cornet requested a jury instruction on the statutory medical‑care defense for the digital‑penetration count; the trial court denied the request. He was sentenced to 10 years per count, concurrent, and fined.
On direct appeal this Court reversed and remanded for a harm analysis. On remand the court of appeals found the omission harmless because the jury implicitly rejected the medical‑care defense and had evidence to disbelieve Cornet. Cornet petitioned for discretionary review.
The Court of Criminal Appeals affirmed the court of appeals: although omission of confession‑and‑avoidance defenses is generally harmful, the totality of this record shows the jury rejected Cornet’s medical‑care claim (especially because it convicted on the oral‑contact count to which the defense does not apply).

Issue	Cornet's Argument	State's Argument	Held
Whether omission of a requested medical‑care (confession‑and‑avoidance) jury instruction was harmful error	Omission deprived jury of the sole vehicle to acquit him on admitted conduct; court of appeals failed to do a proper harm analysis	Jury verdict (conviction on oral‑contact count) and record show the jury disbelieved Cornet’s medical‑care evidence, so omission was harmless	Harmless error — totality of record shows jury rejected medical‑care defense; conviction on a count inapplicable to the defense is strong evidence of no harm
Whether the court of appeals improperly performed a sufficiency‑of‑the‑evidence review instead of an Almanza harm analysis	Court of appeals mistakenly relied on "sufficient evidence" language and essentially did a sufficiency review	The court actually assessed the quality of defensive evidence as part of Almanza factors; verdict supports rejection of defense	Court agrees the court of appeals used imprecise wording but reached correct result via record‑specific Almanza analysis

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (framework for assessing harm from jury‑charge error)
Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) (prior opinion remanding for harm analysis; medical‑care defense discussion)
Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009) (discussion that lascivious intent may be implicit in aggravated‑sexual‑assault analysis)
Sanchez v. State, 376 S.W.3d 767 (Tex. Crim. App. 2012) (actual harm required; sufficiency review cannot substitute for Almanza harm analysis)
Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (confession‑and‑avoidance defense doctrine explained)
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) (omission of necessity instruction harmful under confession‑and‑avoidance principles)