Villa v. State, 2013 Tex. Crim. App. LEXIS 1655

Appellant (Rudy Villa) lived with the 3-year-old victim, who had recurrent diaper rash; mother noticed redness and pain and the child reported Appellant touched her with his "bad finger."
Medical exams showed redness of the labia that could be from infection or digital penetration; the SANE exam was inconclusive.
Appellant initially told police he had put his middle finger in the child’s vagina while applying medication; at trial he repeatedly denied inserting his finger but admitted touching the child and applying medication.
The jury acquitted on indecency-with-a-child (no sexual intent) but convicted of aggravated sexual assault (penetration) and sentenced Appellant to 50 years.
Trial counsel did not request a jury instruction on the medical-care defense (a confession-and-avoidance defense); the court of appeals reversed and remanded, and the Court of Criminal Appeals affirmed that reversal and remanded for a new trial, holding counsel was ineffective for failing to request the instruction.

Issue	State's Argument	Villa's Argument	Held
Whether a defendant who recants at trial can obtain a medical-care instruction based on a pretrial admission	Pretrial admission alone is insufficient; allowing reliance on a recanted statement would undermine confession-and-avoidance doctrine	Denying penetration of the vagina is distinct from denying penetration of the sexual organ; his trial denials did not negate a prior admission that supports the defense	Appellant’s trial statements admitted conduct amounting to "penetration" under Texas law, so the confession-and-avoidance-based medical-care defense was raised and an instruction was warranted
Whether counsel’s failure to request the instruction is ineffective assistance	Even if instruction might arguably apply, failure to request it is not necessarily ineffective	Counsel’s entire defense was medical care; failing to request the sole defensive instruction deprived jury of an avenue to credit that defense	Failure to request the instruction was objectively unreasonable and prejudicial under Strickland: defense was the sole theory, no plausible strategy for omission, and prejudice undermined confidence in verdict

Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010) (necessity/confession-and-avoidance issues where testimony allowed inference of defensive justification)
Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) (pretrial admissions and medical-care defense under confession-and-avoidance)
Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) (definition of "penetrate" and scope of "female sexual organ")
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) (counsel ineffective for failing to request instruction on sole defensive theory)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)