N APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY
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 appellate court affirmed the trial court's decision. The Texas Court of Criminal Appeals found that while the appellate court 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 turned upon the accused's familiarity with the science of medicine, the court rejected any such notion. Further, Webster's relevantly defined "care" as "charge, supervision, management, responsibility for or attention to safety and well-being. It was evident to the court that even the simple inspection of a child's anatomy, if conducted for medical purposes, was consistent with the "responsibility for or attention to the safety and well-being" of that child. Thus, the court found that inspection conducted by a physician, physician's assistant, nurse, or other trained professional. Surely the Legislature meant for the medical-care defense to immunize from prosecution medically trained professionals who examined victims of child sexual assault for medically motivated purposes. Also, the medical-care defense might be raised by evidence supporting a "mere" medical inspection. The court noted that even if it were true that some non-element-negating defenses (such as, for instance, self-defense in the context of murder) were somehow immune from the requirements of confession and avoidance, a mere reference to that legal anomaly, absent any sort of analogical reasoning, would not constitute an argument against applying the doctrine to the justification of medical care--and would not, therefore, suffice to overcome the strong thematic similarity between the Good Samaritan defenses to causing injury to a child and the medical-care defense to digital penetration of a child's anus or genitals. The decision of the appellate court in that respect was affirmed. Finally, while the court agreed with the appellate court that the issue presented an "extremely close call," the court concluded that sufficient evidence existed at trial to show that the appellant essentially admitted, under the doctrine of confession and avoidance, to the element of penetration. The appellate court erred to the extent that it held otherwise. Thus, the appellate court erred in affirming the trial court's decision to deny the appellant a jury instruction regarding medical care to the charge of digitally penetrating the victim's sexual organ. Accordingly, the court reversed the judgment and the case was remanded.