Brian Christopher Reed v. the State of Texas

             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         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
                             BRAZOS COUNTY

             WALKER, J., delivered the opinion of the Court, in which KELLER, P.J.,
and RICHARDSON, NEWELL, SLAUGHTER, and MCCLURE, JJ., joined. HERVEY and
YEARY, JJ., concurred in the result. KEEL, J., dissented.

                                          OPINION


       The indictment charged Appellant Brian Christopher Reed with sexual assault by penetrating

the victim’s sexual organ with his sexual organ, but the jury convicted him of the lesser-included

offense of attempted sexual assault. The jury charge’s application paragraph for the lesser did not

limit the means of penetration to his sexual organ, and the charge’s definition of sexual assault told

the jury that penetration could be committed “by any means.” The jury also heard some evidence that

Appellant may have used his mouth, not his sexual organ. The court of appeals concluded that
                                                                                                    2

Appellant was egregiously harmed by the charge error and reversed.

       Assuming, without deciding, that the charge was erroneous, we find that the court of appeals

overestimated the harm because the possibility that the charge error led the jury to find Appellant

guilty of attempting to sexually assault the victim with his mouth instead of his sexual organ is

hypothetical at best. Although there was a conflict in the evidence over whether Appellant used his

sexual organ or used his mouth, the dispute over the means of penetration was tied-up with and

ancillary to the greater question of whether to believe the victim’s claim that, when Appellant used

his sexual organ, it was not consensual or Appellant’s claim that, when he used his mouth, it was

consensual. The case largely revolved around consent. Furthermore, the State did not tell the jury

it could convict if it thought Appellant used his mouth. Likewise, the defense did not argue that he

should be acquitted because he had committed a different offense than what he was charged with.

Instead, the defense criticized the State’s failure to forensically prove penetration by sexual organ.

The harm does not rise to egregious harm. We reverse and remand this case to the court of appeals.

                                         I — Background

       Texas A&M student M.K. celebrated her twenty-third birthday by spending the night out

drinking in College Station with her friends.1 The birthday group started their night out at Wings N

More and ultimately ended up at a bar called The Tap.

       Appellant, a refinery worker for the Valero Oil Company, was in College Station to attend

work-related training. His group had ended their final day of training, and they also spent the night


       1
          Although the record does not include a pseudonym form filed by the victim, we will refer
to the victim with the pseudonym “M.K.” used by the court of appeals and by the parties in their
briefing to this Court. See TEX. CODE CRIM. PROC. Ann. arts. 58.102(a), 58.101(a)(1) (victim of a
reportable offense may elect to use a pseudonym by completing a prescribed pseudonym form); art.
62.001(5)(A), (G) (reportable offenses include attempted sexual assault).
                                                                                                   3

out drinking. They went to the hotel bar, a Buffalo Wild Wings, a Mexican food restaurant, and

eventually ended up at The Tap. While there, M.K.’s roommate Caitlin Scott struck up a

conversation with a member of Appellant’s group, Trevor Allen. M.K. became intoxicated and

needed to go home, and one of her friends drove M.K. and Scott back to their nearby condo.

       Upon returning home, M.K. went upstairs to her bedroom. Some time later, Allen and

Appellant arrived at the condo. Appellant asked Scott where the bathroom was, and she directed him

upstairs while she remained downstairs with Allen. What happened when Appellant went upstairs

is disputed. According to M.K., she was asleep and woke up to a man on top of her, with his penis

in her vagina. M.K. screamed out Scott’s name, pushed the man off, and left the room.

       Scott heard M.K. yelling and went upstairs to check on 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. When

Scott went inside, she found an apologetic Appellant sitting naked on the bed. Scott yelled at him

and pushed him back downstairs. Appellant dressed at the bottom of the stairs and, thinking his co-

worker, Trevor Allen, had already left, walked back to his hotel.

       While in Scott’s room, M.K. heard Scott yelling. M.K. began to process what had happened,

and she began crying and became hysterical. She called friends and her brother to report that she had

been raped. One of those friends, Cassidy Jackson, had been out with M.K. earlier that night and

came over right away and called 9-1-1.


       2
         Scott did not remember what M.K. was yelling or saying. Scott recalled feeling like she
needed to go upstairs.
       3
          Scott and M.K.’s testimony at trial seem to indicate no words were exchanged 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 any further
testimony about that encounter. She told the jury that she went and sat on Scott’s bed.
                                                                                                     4

       Jackson drove M.K. and Scott to the hospital, where M.K. was subjected to a sexual assault

examination. M.K. and Scott also spoke with the investigating detective Rick Vessell, who noted

that M.K. was still intoxicated. From Scott, Vessell learned that the suspect was named “Brian” and

might be staying at the Hilton. Another officer was able to get confirmation from the hotel of a guest

matching the description. Upon arriving at the hotel room, the officers knocked, and, after some

delay, Appellant answered and allowed Vessell to come in.

       After introducing himself, Vessell asked Appellant if he had gone to a house earlier that night

with Allen, and Appellant answered that he was there for four or five minutes. Telling Appellant that

he was not under arrest, Vessell nevertheless provided Miranda warnings. Vessell then informed

Appellant that a naked man matching his description was in M.K.’s room having sex with her.

Appellant denied being that man, and he recounted his group’s night out which ended at The Tap.

After leaving the bar, Appellant went 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 was probably the truth. But 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 again denied that it was him—he promised Vessell that it was not him. Then

Vessell told Appellant that the suspect matched Appellant’s description and that he was picked out

of a photo lineup.4 Suggesting that Appellant probably just made a mistake and noting that Scott said

the person seemed genuinely remorseful, Vessell asked Appellant to tell his side of the story because

this was the only chance to explain 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 and 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 through what happened that night. Appellant said Allen

was going to meet a woman that Allen had met at The Tap, and Appellant went along because Allen

was his ride. Initially, he sat on the couch with Allen. He had to use the bathroom, and Scott told him

to go upstairs. He found “some lady” in the bathroom passed out on the floor. He helped her up and

flushed the commode because she had vomited. He helped her to her bedroom, and he told Vessell

“yeah, everything was consensual.” He could not remember what clothes M.K. was wearing when

he found her, but “yeah, we had consensual sex.”

       Appellant asked if he was being charged with anything, but Vessell told him that he was not

under arrest and they were just talking. However, Vessell did confirm Appellant’s concern that M.K.

was saying he raped her. Because of this, Vessell told Appellant “That’s why I need your side of the

story. There’s two people involved in this act. She’s says it wasn’t consensual. You’re saying it was.

That’s where we’re at.” Appellant repeated that the encounter was consensual.

       Appellant further explained that he found M.K. lying on her side in the bathroom. It was her

birthday, and he told her “birthday girl, you had 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 you have vaginal intercourse?” and followed-up with several questions on where Appellant put

his sexual organ. Appellant promised Vessell that he did not use his sexual organ, and “all [he] did

was kiss on her.”

       In response to Vessell’s question 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 naked
                                                                                                      6

because he was planning on having sex. Before Appellant could answer, Vessell asked how the

encounter stopped and why M.K. left the room. Appellant “guess[ed] he wasn’t doing a very good

job,” and he briefly chuckled. Appellant again denied using his sexual organ, and he repeated that

he was only “kissing on her.”

        Vessell told Appellant he thought Appellant was being mostly truthful except about not

penetrating M.K.’s sexual organ with his sexual organ. Vessell bluntly stated “a girl knows” and

M.K. said Appellant was inside of her “actively engaged in thrusting.” Vessell flatly told Appellant

he did not believe his story. After Appellant said he was being “dead honest,” Vessell reminded him

that he initially denied being at the condo, then admitted to being in the condo but not going upstairs,

then admitted to going upstairs, then admitted to being in the bed, and then admitted to being naked.

Vessell needed Appellant to talk “about this penis part.” Vessell warned Appellant that M.K. was

currently being examined and proof would come out that Appellant really did penetrate her sexual

organ with his sexual organ. Vessell predicted that Appellant would then admit to intercourse,

making him look like a liar again. Vessell told Appellant to tell the truth now.

        Vessell asked if it was possible that Appellant was drunk and did not notice it. Appellant said

he might have “rubbed on her for a minute, maybe,” but he did not remember ever doing that. All

he remembered was “eating her out.” Vessell, wanting “to help [Appellant] decide where [his] penis

was,” told Appellant that M.K. was on her period and her tampon was pushed up inside where it

would not be unless something was stuck up in there, so that was more evidence Appellant’s sexual

organ was inside her.5


        5
           Although it was true that M.K. was on her period, she did not have a tampon in at the time.
On the night of the offense, M.K. initially thought her tampon was still inserted, but she testified at
trial that she habitually removed any tampon when going to sleep, and the nurse at the hospital
                                                                                                     7

       Vessell told Appellant that he already knew everything, including that Appellant had sex with

M.K., and he was giving Appellant a chance to explain. Appellant repeated that it was consensual.

He said that she came on to him, and she was fine with it. After Vessell asked if Appellant would

still maintain that he did not put his sexual organ in M.K. or if he would admit that it happened,

Appellant responded that “it’s very possible.”

       Appellant was indicted for sexual assault for allegedly penetrating M.K.’s sexual organ with

his sexual organ without her consent. At trial, M.K. testified that she had gone to sleep right after

getting home from The Tap, and she woke up with Appellant’s penis in her vagina. She did not even

know who Appellant was, and she did not consent to having sex with him. Appellant testified in his

defense, and he told the 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.

       Following the close of evidence, the trial court held the charge conference off the record after

which the State had no objections and Appellant had “[n]o further objections.” The trial court gave

the jury instructions which included lesser-included offenses for attempted sexual assault and assault

by offensive or provocative touch. The application paragraph for the attempted sexual assault lesser-

included offense tracked the statutory language and told the jury to convict Appellant if it found he

had the intent to commit “Sexual Assault” and did an act that amounted to more than mere

preparation that tended but failed to effect the commission of the offense intended (i.e., “Sexual

Assault”).6 “Sexual Assault” was defined in the statutory language, and the jury was told that a


testified that no tampon was found during the examination.
       6
           See TEX. PENAL CODE Ann. § 15.01(a).
                                                                                                     8

person commits “Sexual Assault” if he intentionally or knowingly penetrates the anus or sexual

organ of another person, not his spouse, by any means without that person’s consent.7

        The jury convicted Appellant of the lesser-included offense of attempted sexual assault. For

that third-degree felony the jury assessed a punishment of three years and six months and a $1,000

fine.

        Appellant raised three issues on appeal, one of which was that the trial court’s charge for the

lesser-included offense of attempted sexual assault should have been limited to the indictment’s

allegation that Appellant used his sexual organ. Reed v. State, 

, 859 (Tex.

App.—Waco 2020). The court of appeals agreed and determined that the jury charge was erroneous

because it expanded the theory of liability beyond the language of the indictment, and the jury could

have convicted him of attempting sexual assault “by any means.” 

. The court of appeals

then found that the error caused egregious harm and accordingly reversed. 

.8

        Chief Justice Gray dissented. 

 (Gray, C.J., dissenting). Even though he concurred

that there was error in the charge, he believed the error was harmless. 

. Chief Justice Gray

thought the jury would have to go through “mental gymnastics” in order to read “Sexual Assault”

under its abstract definition for the purposes of the lesser-included offense. 

 Chief Justice Gray

also thought that not only would such a reading go against the logical flow of the charge, the

evidence and especially the parties’ closing arguments weighed against a finding of egregious harm.

        7
            See TEX. PENAL CODE Ann. § 22.011(a)(1)(A).
        8
         Because the charge issue was dispositive of the appeal, the court of appeals declined to
address Appellant’s other two issues. Reed, 608 S.W.3d at 862 n.3.
                                                                                                    9

         We granted the State’s petition for discretionary review, which complains that:

         The court of appeals erred in finding egregious harm, where the record is clear that
         the jury understood that a conviction for the lesser included offense of attempted
         sexual assault would be based on Appellant’s attempted penetration of the victim’s
         sexual organ by Appellant’s sexual organ.

We sustain the State’s ground for review. Assuming that there was error in the charge that may have

authorized the jury to convict if it found that Appellant tried but failed to penetrate the victim’s

sexual organ by any means other than his sexual organ, and there was some evidence that he used

his mouth, that possibility is too remote for the error to have caused Appellant egregious harm.

                                       II — Egregious Harm

         If charge error is found, the appellate court must analyze that error for harm. Campbell v.

State, 

, 245 (Tex. Crim. App. 2022); Kirsch, 357 S.W.3d at 649; Arline, 721 S.W.2d

at 351. If the error was the subject of a timely objection, reversal is required if the error was

calculated to injure the rights of the appellant, which means no more than that there must be some

harm. Almanza v. State, 

 (Tex. Crim. App. 1985) (op. on reh’g); Cyr v. State,

, 556 (Tex. Crim. App. 2022). But if there was no proper objection to the error, a

reversal will be granted only if the error presents egregious harm, meaning that the appellant did not

receive a fair and impartial trial. Almanza, 

; Cyr, 665 S.W.3d at 556. Under either

the “some harm” standard or the “egregious harm” standard, to obtain a reversal for jury charge

error, the appellant must have suffered actual harm and not merely theoretical harm. Sanchez v. State,

 (Tex. Crim. App. 2012); Arline, 721 S.W.2d at 352; Campbell, 664 S.W.3d

at 245 (some harm); Alcoser v. State, 

, 165 (Tex. Crim. App. 2022) (egregious

harm).
                                                                                                       10

        Because there was no proper objection to the error,9 we review for egregious harm. Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of

a valuable right, or vitally affects a defensive theory. Stuhler v. State, 

 (Tex.

Crim. App. 2007); Alcoser, 663 S.W.3d at 165. In determining whether charge error resulted in

egregious harm, we consider: (1) the entire jury charge; (2) the state of the evidence; (3) the final

arguments of the parties; and (4) any other relevant information revealed by the trial court as a

whole. Stuhler, 

; Allen v. State, 

 (Tex. Crim. App. 2008).

                                  II(1) — The Entire Jury Charge

        As discussed above, the court of appeals found the charge for the lesser-included offense of

attempted sexual assault was erroneous because it allowed the jury to find Appellant guilty on a

theory not alleged in the indictment. The court of appeals concluded that the error affected the very

basis of the case and therefore was egregiously harmful. Reed, 608 S.W.3d at 861. As the court of

appeals saw it, the instruction allowed the jury to consider penetration by any means including his

mouth, and there was “a significant possibility” that Appellant was convicted without the jury’s

unanimous agreement that he tried, but failed, to penetrate M.K.’s sexual organ with his sexual

organ. Id.

        We do not doubt that there is a possibility that the jury, reading the instruction for the lesser-

included offense of attempted sexual assault, understood “Sexual Assault” to mean “Sexual Assault”

strictly as defined in the abstract portion of the charge. But is there a “significant possibility” that



        9
          As noted above, following the off-record charge conference, Appellant’s defense counsel
replied that he had “[n]o further objections.” Although the record contains some indication that
Appellant had some objections to the court’s charge, the record fails to show what Appellant’s
objections were and whether they were specific and timely enough to preserve error.
                                                                                                   11

the jury:

        1.      considered the charged offense that Appellant sexually assaulted M.K. by
                intentionally or knowingly penetrating her sexual organ with his sexual organ
                without her consent;

        2.      decided that the evidence did not prove the charged offense beyond a
                reasonable doubt;

        3.      moved on to consider the lesser-included offense of attempted sexual assault;

        4.      jumped back to the first page of the court’s charge for the abstract definition
                of “Sexual Assault”;

        5.      and jumped forward over the charged offense’s application paragraph to
                consider attempted sexual assault using the abstract definition?


It is possible. But as Chief Justice Gray colorfully put it:

        one has to be a mental gymnast to run past the greater offense to the lesser, and then
        do a back-flip back to the abstract portion of the charge for the definition of sexual
        assault on all the other theories for how to commit sexual assault, before then
        vaulting over the specific theory to land on an attempt to commit sexual assault on
        a theory other than the greater offense[.]

Reed, 608 S.W.3d at 863 (Gray, C.J., dissenting). We agree with him that “mental gymnastics”

would be required of the jury to reach its verdict in such a manner. Id. Although it may be within the

universe of possibility, we think the possibility to be theoretical at best and not “significant.” See

Sanchez, 

 (actual harm, not theoretical harm).

        What we do find significant is the fact that the application paragraph for the charged offense

ended with:

        you will find the Defendant “not guilty” of Sexual Assault and go on to consider the
        lesser-included offense of Attempted Sexual Assault[,]

and the application paragraph for the attempted sexual assault lesser-included offense began with:
                                                                                                   12

       bearing in mind the foregoing instructions[.]

We generally presume that the jury followed the trial court’s instructions. Allison v. State, 

, 765 (Tex. Crim. App. 2023); Thrift v. State, 

 (Tex. Crim. App.

2005) (“On appeal, we generally 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 Sexual Assault

. . . [went] on to consider the lesser-included offense of Attempted Sexual Assault,” and in so

considering, “[bore] in mind the foregoing instructions.” While the abstract definition of “Sexual

Assault” was in an earlier part of the charge and thus literally part of “the foregoing instructions,”

the application paragraph for the charged offense—including its sexual organ limitation—was the

immediately preceding instruction that the jury had just moved on from. It is more likely that the

jury, following the instruction to “bear[] in mind the foregoing instructions,” understood “Sexual

Assault” to mean the charged offense that it had just acquitted Appellant of.

       With regard to the entire jury charge, we find that while this factor weighs in favor of a

finding of some theoretical harm, it does not weigh in favor of egregious harm.

                                II(2) — The State of the Evidence

       Turning to the state of the evidence, the evidence relevant to the means of penetration and

whether the jury could have found Appellant penetrated M.K.’s sexual organ “by any means” other

than his sexual organ consisted of M.K.’s account, Appellant’s account, and a pair of underwear

belonging to Appellant with a notable stain.

       M.K. explained that when she got home, she went straight upstairs to her bedroom and went

to sleep. Although she could not specifically remember what she wore to bed that night, she would

always wear the same shirt to bed with either pajama pants or just underwear. Yet when she woke
                                                                                                   13

up that night, 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 woke up and

pushed some guy off of her. She said the guy was completely naked and his penis was in her vagina.

       M.K. told the jury that, after she spoke with responding officers at the condo, she went to the

hospital where she underwent a sexual assault examination. While at the hospital, she spoke with

officers there, and M.K. acknowledged that she told them that the guy was “trying to have sex” with

her and that he “attempted to have sex” with her. But she added that she immediately told them that

the guy’s penis was inside of her.

       Meghan Martin, a sexual assault nurse examiner, examined M.K. at the hospital. Martin did

not remember the examination, but according to her records M.K. reported that she went to bed alone

and woke up with a man on top, vaginally penetrating her. Martin explained to the jury that vaginal

penetration meant, in layman’s terms, that something went into M.K.’s vagina. Martin also stated

that although M.K. said she was currently on her period and had a tampon in, a tampon was not

found during the examination.

       Rick Vessell, the investigating detective, met with M.K. at the hospital. M.K. told him that

the suspect attempted to have sex with her, but Vessell explained that although that was “the

expression she’s using, . . . she said his penis was in her vagina.” M.K. also told Vessell that the

suspect tried to have sex with her, and again Vessell explained that she “also said his penis was

inside of her. But it’s common – that’s a phrase commonly used. I’ve heard that before in

investigations, 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 played for the

jury. Vessell asked Appellant about what happened at M.K.’s apartment. Appellant initially claimed
                                                                                                   14

that he only stayed downstairs for a few minutes, but after prodding Appellant eventually told

Vessell that he only performed oral sex on M.K. He denied putting his sexual organ in her sexual

organ or her anus. Yet on the recording, Appellant made equivocal concessions that he might have

rubbed on M.K.’s sexual organ and that it was possible that he did put his sexual organ 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

thought performing oral sex on a woman that was on her period was odd. Additionally, during the

interview, Vessell suggested to Appellant that he might have not even noticed putting his sexual

organ inside of M.K. because he was drunk, and Appellant replied that his sexual organ may have

rubbed on M.K.’s sexual organ.

       After the interview, Appellant gave consent for Vessell to collect some items in the hotel

room, including a pair of underwear. On the day before testifying, Vessell noticed a dark colored

stain on the crotch of the underwear that he had previously missed. Vessell opined that the stain

looked like blood, and he found that significant because he recalled that M.K. had been menstruating

at the time of the incident. The presence of menstrual blood on Appellant’s underwear would be

inconsistent with Appellant’s story that he did not penetrate M.K.’s sexual organ with his sexual

organ. 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 sexual assault nurse examiner, testified as an expert for the State.

On cross-examination, Downing opined that finding semen or sperm in the vaginal swab would be

the best evidence of penetration, but male skin cells and prostate fluid (“pre-ejaculate”) can support
                                                                                                     15

penetration as well. On re-direct, Downing agreed that, if a victim were on her period, a large amount

of discharge could dilute any foreign sample in the vagina. Downing also noted that, even if DNA

were recovered, it would not show whether the encounter was consensual; DNA would only

establish that two people had sexual contact and who those individuals were. Notably, Downing

explained to the jury that the male sexual organ is the penis, and oral sex would not constitute

penetration by a man’s sexual organ. However, oral sex would constitute sexual assault under the

meaning of the statute.

          Appellant testified in his own 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 put his sexual organ inside of her. The State cross-examined

Appellant at length and specifically asked questions aimed at impeaching his claim that he only

performed oral sex. Regarding the stained underwear, Appellant explained that he did not wear that

particular pair that night. Appellant said that the stain was caused by a cheap vape pen that he had

in his pocket. The vape pen broke and leaked onto his underwear while he was training at the fire

school.

          The evidence pertaining 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 sexual organ

was inside of hers, Appellant’s apparent concession during the recorded interview that it was

possible, and a stain on Appellant’s underwear that Vessell thought looked like blood. On the other

hand—aside from his admission at one point in the recorded interview that he might have penetrated

her with his sexual organ—Appellant was largely consistent in his claim that he only performed oral

sex, and he explained that the stain was caused by a broken vape pen. Finally, on what penetration
                                                                                                  16

even means, the jury heard Downing explain that although oral sex does not constitute penetrating

the victim’s sexual organ with the suspect’s sexual organ, oral sex could constitute sexual assault

under the meaning of the statute.

       While the jury heard a version of events where Appellant used his sexual organ as alleged

in the indictment and the jury saw an exhibit 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.” With regard to the state of the evidence, this factor weighs in favor

of a finding of egregious harm.

                             II(3) — Final Argument of the Parties

       During closing argument, the State 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 logic of Appellant’s story. Regarding

the lesser-included offense of attempted sexual assault, the State argued that there was no mere

attempt—Appellant’s stained underwear was proof that Appellant’s sexual organ had actually

penetrated M.K.’s sexual organ because her menstrual blood had transferred onto his sexual organ

and from there onto his underwear.

       Much of Appellant’s closing argument focused on the State’s burden of proof regarding the

charged offense and the use of Appellant’s sexual organ. Defense counsel argued that the State failed

to meet its burden because physical evidence was not tested for DNA. Counsel contended that, had

the State tested for DNA and if Appellant’s DNA was found in the sexual assault kit collected from

M.K. at the hospital, it would prove that Appellant’s sexual organ had penetrated M.K.’s sexual

organ. And if the stain on Appellant’s underwear was tested, the results could confirm the
                                                                                                    17

prosecution’s theory that the stain was M.K.’s menstrual blood, transferred onto the underwear by

Appellant’s sexual organ after penetration of M.K.’s sexual organ.

         Defense counsel never put forth an argument that Appellant did not commit the offense as

alleged because he used his mouth, not his sexual organ.10 Notably, defense counsel briefly touched

upon the lesser-included offenses. Counsel told the jury that “attempted sexual assault would mean

that he attempted to stick his penis in her vagina and was not successful. That’s what that would

mean.” While the jury could have disregarded counsel, the defense argument steered the jury towards

the allegations of the indictment. As Chief Justice Gray noted, “[i]t could be said that the defendant

actually argued the hypothetically correct jury charge.” Reed, 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 again told the jury that M.K. said she woke up 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 been tested, the State argued that there was no time for testing because

the stain had been noticed shortly before trial. Nevertheless, the State argued that testing was not

necessary because the issue was consent, not identity. The State also used the stained underwear as

an opportunity to attack Appellant’s credibility by contending that his explanation for the stain (vape

pen broke and leaked) was unbelievable versus the State’s theory that the stain was M.K.’s menstrual

blood.


         10
            The remainder of the defense argument tried to shore up Appellant’s credibility by
explaining that Appellant’s hesitant and inconsistent statements to Vessell were a product of his
shame and that his actions were inconsistent with that of a predatory rapist. The defense also
challenged M.K.’s credibility by reminding the jury that she had admittedly gotten very intoxicated
that night.
                                                                                                   18

       With regard to the parties’ arguments, there were no references to Appellant’s claim that he

only performed oral sex on M.K., and neither side argued that Appellant penetrated, or even

attempted to penetrate, M.K.’s sexual organ by any other means than with his own sexual organ. The

trial court’s erroneous instruction had no impact on the arguments of the parties, and this factor

weighs against a finding of egregious harm.

                              II(4) — Other Relevant Information

       Of course, the jury received more than the charge, the evidence, and the arguments of the

parties. The jury also spoke with the parties in voir dire, and they heard opening statements before

evidence began. While neither constitute evidence, they present opportunities to influence the jury

to focus on particular issues and types 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 discussion about the

full range of punishment by illustrating two different scenarios constituting sexual assault, one

involving a finger and the other involving sexual intercourse.11 However, the prosecutor made it clear

that he was not referring to Appellant or this case and was only talking about the crime of sexual

assault in general.


       11
           Specifically, the prosecutor sought to explain to the venire that sexual assault is not
necessarily “sexual in nature”:

               I’m going to give you an example of what I’m talking about. . . . It was a high
       school baseball . . . team, a bunch of 17- and 18-year-old boys in a hotel room and
       they are hazing a newer member of the team and they – one of them stuck a finger
       up this young man’s anus. You know, it wasn’t sexual, they were just jacking with
       this kid because he was a new member of the team, right? Does that behavior meet
       the elements of sexual assault? Absolutely, it does. 17-year-old high school students
       doing that, wasn’t sexual, just hazing a teammate. Sexual assault.
               On the flip side of that is you have somebody who has full-on sexual
       intercourse with somebody again[st] their consent or without their consent. Sexual
       assault; same crime.
                                                                                                        19

        The defense voir dire began by asking the venire about the presumption of innocence and

talking about the burden of proof. In explaining what the State was required to prove, defense

counsel recited the allegations of the indictment, including that Appellant caused his sexual organ

to penetrate the sexual organ of the alleged victim. But counsel immediately followed up by

repeating that the State had to prove “without the effective consent of the victim” beyond a

reasonable doubt, and “that’s the big part. That’s what [the prosecutor] said, and I think a lot of these

cases boils down to consent.”

        In opening statements, the prosecution began by telling the jury that M.K. reported that she

woke up to a stranger in her bed with his penis in her vagina. The defense’s opening statement told

the jury that Appellant had cheated on his wife but made no allusion as to how, whether it was by

sexual organ, by mouth, or by any other means.

        From our review of the record, although there was a brief mention during voir dire that sexual

assault in general could be committed by means other than by sexual organ, the venire was not

specifically told that “by mouth” could be one of those ways, 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 sexual organ. These parts of the trial do not weigh towards a finding of egregious harm.

                                           III — Conclusion

        Considering the entire jury charge, the state of the evidence, the final arguments of the

parties, and any other relevant information, we find that, even if the instruction for the lesser-

included offense of attempted sexual assault that Appellant was convicted was erroneous, that error

did not affect the very basis of the case, deprive him of a valuable right, or vitally affect his defensive

theory. While there was conflicting evidence as to whether Appellant penetrated M.K.’s sexual organ
                                                                                                     20

with his sexual organ or performed oral sex on M.K., the very hotly contested and argued issue was

consent. The lawyers tried the case as a consent case, and from the start of trial until its conclusion,

Appellant’s defensive theory was he had a drunken but consensual encounter with M.K., and the

prosecution theory was that Appellant took advantage of an overly intoxicated woman who did not

consent to any sexual 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 had charged him with.

The defense strategy was to rehabilitate Appellant’s credibility, challenge M.K.’s credibility, and

focus on the failure to test supposedly inculpatory evidence which could have confirmed penetration

and thus M.K.’s version of events, such as the sexual assault kit and especially the stain on

Appellant’s underwear that Vessell testified looked like blood and that the State had vigorously

argued was M.K.’s transferred menstrual blood.

        There may be some theoretical harm, but the record here does not show egregious harm.

Therefore, we sustain the State’s sole ground for review. The judgment of the court of appeals is

reversed, and this case is remanded to the court of appeals to consider Appellant’s remaining issues.



Delivered: December 20, 2023
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