in the Matter of K. H., a Child

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00103-CV ______________________________ IN THE MATTER OF K. H., A CHILD On Appeal from the County Court at Law #1 Gregg County, Texas Trial Court No. 4699-J Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross O P I N I O N K. H., a twelve-year-old boy, appeals from his adjudication for the offense of retaliation. A jury found that K. H. engaged in delinquent conduct, and at a later disposition hearing, the trial court committed K. H. to the Texas Youth Commission. K. H. contends on appeal the evidence is legally and factually insufficient to prove he committed the criminal act. Proceedings brought under the Texas Juvenile Justice Code, Title 3 of the Texas Family Code, are hybrid actions. They are brought as civil proceedings, but are "quasi-criminal" in nature. As noted by the San Antonio court in In re K.T., 107 S.W.3d 65, 67 (Tex. App.—San Antonio 2003, no pet.), the language used to describe the proceedings are euphemisms to describe juvenile proceedings that are parallel to criminal proceedings: the adjudication is the trial, while the disposition is equivalent to a sentencing proceeding. Nonetheless, the result of applying euphemisms, however well-intended, can be confusing. Under the applicable statutes and caselaw, civil and criminal rules apply at different stages of the same proceeding. Section 51.17 of the Family Code provides that the Texas Rules of Civil Procedure shall apply, the Texas Code of Criminal Procedure and the applicable criminal caselaw shall govern the discovery process, and the Texas Rules of Evidence (as applied to criminal cases) shall be used during the judicial proceeding. Tex. Fam. Code Ann. § 51.17 (Vernon Supp. 2004–2005). Section 54.03 of the Family Code provides that the burden of proof in an adjudication hearing is the criminal burden: beyond a reasonable doubt. Tex. Fam. Code Ann. § 54.03 (Vernon Supp. 2004–2005). If the trier of fact determines the juvenile engaged in delinquent conduct, a separate disposition hearing is conducted subsequent to the adjudication hearing. Tex. Fam. Code Ann. §§ 54.03(h), 54.04 (Vernon Supp. 2004–2005). It is clear that, in reviewing the disposition portion of the proceeding, we determine whether the trial court abused its discretion in the disposition of the juvenile. We do not disturb the juvenile court's disposition order in the absence of an abuse of discretion. In re H.R.C., 153 S.W.3d 266, 269 (Tex. App.—El Paso 2004, no pet.); In re J.D.P., 85 S.W.3d 420, 426 (Tex. App.—Fort Worth 2002, no pet.); In re J.R., 907 S.W.2d 107, 110 (Tex. App.—Austin 1995, no writ); In re E.F., 535 S.W.2d 213, 215 (Tex. Civ. App.—Corpus Christi 1976, no writ). The result of this patchwork arrangement is, predictably, a certain lack of clarity among courts reviewing different stages of the process about the standards to be applied. It is within this context that we address an appeal brought solely on the adjudication portion of the process. In reviewing the adjudication itself, and the findings made as a result of the adjudication, most courts apply a criminal legal/factual sufficiency review. Even though the appeal of juvenile court orders are generally treated as civil cases, adjudications of delinquency in juvenile cases are statutorily based on the criminal standard of proof. See Tex. Fam. Code Ann. § 54.03(f). Thus, an adjudication should be reviewed by applying the same standards applicable to sufficiency of the evidence challenges in criminal cases. In re J.B.M., 157 S.W.3d 823 (Tex. App.—Fort Worth 2005, no pet.); In re N.M.K., 137 S.W.3d 696, 697 (Tex. App.—Eastland 2004, no pet.); In re Z.L.B., 115 S.W.3d 188, 190 (Tex. App.—Dallas 2003, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex. App.—Austin 2003, no pet.). When both legal and factual sufficiency are challenged, we first determine whether the evidence is legally sufficient to support the verdict. Rivera v. State, 59 S.W.3d 268, 273 (Tex. App.—Texarkana 2001, pet. ref'd). It is only if we find the evidence legally sufficient that we then consider the factual sufficiency challenge. In other words, if we find the evidence legally insufficient, we need not address the factual sufficiency challenge. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In this case, K. H. was charged with the offense of retaliation pursuant to Section 36.06 of the Penal Code. That statute provides, in relevant part, as follows: (a) A person commits an offense if he intentionally or knowingly . . . threatens to harm another . . . : (1) in retaliation for or on account of the . . . status of another as a: (A) . . . witness, prospective witness, . . . ; or (B) person . . . who the actor knows intends to report the occurrence of a crime; or (2) to prevent or delay the service of another as a: . . . . (B) person . . . who the actor knows intends to report the occurrence of a crime. Tex. Pen. Code Ann. § 36.06 (Vernon Supp. 2004–2005). The State's evidence showed that K. H. possessed a gun on school premises and displayed that gun to C. J., and told C. J. he would use the gun if C. J. told anyone about it. The evidence further showed that, while the gun had the appearance of a firearm, it was, in fact, an inoperable pellet gun. The State's petition accused K. H. of threatening to harm C. J. "in retaliation for or on account of the status of [C. J.] as a person who was a witness to a crime, the same being a Third Degree felony if committed as an adult." Alternatively, the State accused K. H. of threatening to harm C. J. "to prevent and delay the service of [C. J.] as a person who [K. H.] knew intended to report the occurrence of a crime, the same being a Third Degree felony if committed as an adult." The jury charge explicitly sets out both options and then goes on to authorize the jury to find K. H. guilty beyond a reasonable doubt, "as alleged in the Petition." As we will discuss later, the first accusation is not actionable under the retaliation statute. The statute does not contemplate that the offense occurs if an actor threatens a person because such person is a witness to a crime, but instead because the person is a witness at trial. However, we first address the contention common to both accusations. In his argument under both accusations, K. H. contends that, because each of the underlying accusations alleged he had committed a crime, and because there was no evidence he had committed such a crime, the State failed to meet its burden of proof and the evidence cannot support the finding in the adjudication that he was guilty. We agree. The question raised under both the first and second accusations is whether the statute requires the state to show that the actor actually committed a crime, or if it was sufficient that the person thought the act reported was a crime. Neither party has directed us to any cases directly on point, and we have found none. The plain language of the statute applies solely to the occurrence of "a crime." It does not implicate an act that a person might reasonably believe to be a crime. The evidence is undisputed that K. H. took an inoperable pellet gun to school. K. H. was not charged with a crime in connection with this act, and there was no suggestion or any proof that the act was, in fact, a crime. The State's petition did not identify "the crime." The crime suggested by the State in its closing argument to the jury is possessing a weapon on the premises of a school, a violation of Tex. Pen. Code Ann. § 46.03 (Vernon Supp. 2004–2005). While that offense is one punishable as a third degree felony, it expressly describes a firearm as the kind of gun prohibited on school premises. A firearm is "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003). James Mathis, the police officer who seized the pellet gun from K. H.'s backpack, agreed in his testimony that the pellet is propelled from this gun by compressed air. K. H. clearly did not violate this statute. "The crime" also could not have been unlawfully carrying a handgun, in violation of Tex. Pen. Code Ann. § 46.02 (Vernon 2003), as a handgun is defined as "any firearm that is designed, made, or adapted to be fired with one hand." Tex. Pen. Code Ann. § 46.01(5) (Vernon 2003). The State suggests in its brief K. H. could have been charged with the offense of disorderly conduct and correctly writes, "It is disorderly conduct, and a crime, to display a firearm or other deadly weapon in a public place in a manner calculated to alarm." See Tex. Pen. Code Ann. § 42.01(a)(8) (Vernon Supp. 2004–2005). "Deadly weapon" is defined as: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2004–2005). As stated above, the gun in this case clearly was not a firearm. And, while the State may have been able to prove K. H.'s gun was "capable of causing . . . serious bodily injury," the record in this case is devoid of any such evidence. The State cites Corte v. State, 630 S.W.2d 690, 691–92 (Tex. App.—Houston [1st Dist.] 1981, pet. ref'd), for the proposition that even an unloaded pellet gun can be a deadly weapon. In that case, however, the First court pointed out that an investigator testified the gun used "was capable of inflicting serious bodily injury." We have no such evidence in the instant case. We are constrained by the language of the Penal Code, and we cannot stretch its language to make "reasonably believed to be a crime" equivalent to "a crime." We find the evidence legally insufficient to prove that an underlying crime existed. There is a separate problem with the first allegation in the petition, also requiring reversal on that accusation. Even if we assumed the existence of an underlying crime, the State was required to prove C. J. was a "witness or prospective witness" as contemplated by the statute. See Tex. Pen. Code Ann. § 36.06(a)(1)(A). The State's petition alleged the offense was committed due to C. J.'s status as "a witness to a crime." The statute criminalizes retaliation against a person who is a witness in court. The two terms are not interchangeable. In this context, the Texas Court of Criminal Appeals defines the term "witness" as "one who has testified in an official proceeding." Jones v. State, 628 S.W.2d 51, 55 (Tex. Crim. App. [Panel Op.] 1980); accord Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993); see In re B.P.H., 83 S.W.3d 400, 407–08 (Tex. App.—Fort Worth 2002, no pet.). A "prospective witness" is one who may testify in an official proceeding. Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002); see Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993). A person who witnesses an offense, but who has not yet testified in a trial involving that offense, is also a prospective witness. Morrow, 862 S.W.2d at 614; see also Ortiz, 93 S.W.3d at 86 ("Any person who is involved in an offense with a defendant, who sees the defendant committing an offense, or who hears the defendant discuss committing an offense is a 'prospective witness' in the prosecution of that defendant because he 'may' testify."); Stewart v. State, 137 S.W.3d 184, 187 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd). The State's petition in this case, however, did not allege C. J. was a "prospective witness." The State has directed us to our opinion in Solomon v. State, 830 S.W.2d 636 (Tex. App.—Texarkana 1992, pet. ref'd), to support its position that the crime of retaliation was committed because C. J. could have been a witness in a number of different ways. Our opinion does so hold, but in connection with the separate portion of Section 36.06(a)(1)(A), which describes a "prospective witness," not a witness, and the charging instrument in Solomon also correctly alleged a threat against a person who was a prospective witness in court, not a witness to an act. K. H. contends there is no evidence to support the jury's finding that he threatened C. J. in retaliation for the status of C. J. as a witness. He is correct; there is no evidence to support that finding. The contention is sustained. The State also argues in the alternative that, if we conclude the evidence is insufficient, then a second charge of terroristic threat made against K. H., which was not reached by the jury, should be treated as a lesser included offense, and we should reform the judgment to find K. H. guilty of the lesser offense. Terroristic threat is committed when: (a) A person . . . threatens to commit any offense involving violence to any person or property with intent to: . . . . (2) place any person in fear of imminent serious bodily injury. Tex. Pen. Code Ann. § 22.07 (Vernon Supp. 2004–2005). We first address the question posed in the second ground for review stated above. A defendant is entitled to a lesser included offense instruction in the jury charge if (1) the requested charge is a lesser included offense of the offense charged, and (2) there is some evidence that, if the defendant is guilty, he or she is guilty only of the lesser offense. To determine if an offense is a lesser included offense, we look to Article 37.09 of the Code of Criminal Procedure, which states in relevant part: "An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); see Irving v. State, No. PD-91-04, 2005 Tex. Crim. App. LEXIS 654 (Tex. Crim. App. Apr. 27, 2005). Several courts have held that terroristic threat is not a lesser included offense of retaliation because retaliation does not require that the actor threaten with the intent to place a person in fear of imminent serious bodily injury. See Coward v. State, 931 S.W.2d 386, 389 (Tex. App.—Houston [14th Dist.] 1996, no pet.); Davis v. State, 890 S.W.2d 489, 492 (Tex. App.—Eastland 1994, no pet.); see also Helleson v. State, 5 S.W.3d 393, 396 (Tex. App.—Fort Worth 1999, pet. ref'd). Retaliation requires nothing other than a threat to harm. Terroristic threat requires much more, a threat intended to place a person in fear of "imminent bodily injury." This is the reverse of a lesser included offense situation, for terroristic threat requires proof of a higher level of threat than does retaliation. Thus, we do not believe that this greater level of threat could be subsumed within the lesser amount required by retaliation. Even if the evidence could have supported such a result, the jury did not pass on the greater level, and in the absence of uncontroverted, unchallenged evidence, we could not put ourselves in the place of the fact-finder and so find for the first time at this level of review. When we find legally insufficient evidence to support a judgment, we typically reverse and render. In this case, however, at the time of the adjudication and disposition sending K. H. to the Texas Youth Commission, he was already on probation for a prior act, and further action by the trial court will be required to effectuate our judgment. For the reasons set forth above, we reverse the judgment and remand the case for further proceedings in accordance with this opinion. Donald R. Ross Justice Date Submitted: March 25, 2005 Date Decided: July 26, 2005 zed minus the accompanying "aggravating" elements, such as the use of a date rape drug or a deadly weapon) to the core of the (simple) sexual assault statute, one can see that, except for the way the parts of each section are numbered, the two Penal Code provisions are identical. Compare Tex. Pen. Code Ann. §§ 22.011(a), 22.021(a)(1). Absent the aggravating conditions of aggravated sexual assault, the person commits either offense if he or she "causes the penetration of the anus or sexual organ of another person by any means, without that person's consent," Tex. Pen. Code Ann. §§ 22.011(a)(1)(A), 22.021(a)(1)(A)(i); or "causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent," Tex. Pen. Code Ann. §§ 22.011(a)(1)(B), 22.021(a)(1)(A)(ii); or "causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor," Tex. Pen. Code Ann. §§ 22.011(a)(1)(C), 22.021(a)(1)(A)(iii). Accordingly, there is no logical reason to differ from the holding in Vick and our sister courts of appeals mentioned above. We therefore hold that Texas' sexual assault statute, Section 22.011 of the Texas Penal Code, is a conduct-oriented statute that prohibits distinct, yet very specific acts, with each act therein proscribed constituting an independent unit of prosecution. Like the situation faced by the Fourth Court of Appeals in M.P., Mathonican's appeal presents an indictment with three different paragraphs of Count Two that allege distinct and separate offenses, not merely alternative theories of committing the same criminal offense. The State prosecuted Mathonican for sexual assault, a conduct-oriented offense. The indictment's second count thus alleged three different crimes: (1) causing J. M.'s sexual organ to penetrate Mathonican's anus, (2) causing J. M.'s sexual organ to penetrate Mathonican's mouth, and (3) causing Mathonican's penis to penetrate J. M.'s mouth. Thus, the trial court's charge should have required independent verdicts on each of these different charges. Instead, the trial court's general verdict form required only a single verdict, without requiring the jury to differentiate among the charges in the indictment's second count. Accordingly, the jury charge contained error by not requiring a unanimous verdict. Cf. Ngo, 175 S.W.3d at 748–49. (d) The Error Was Egregiously Harmful Having found error in the trial court's charge, we must next consider whether sufficient harm resulted from that error. In this case, Mathonican did not object to the error in the trial court. Therefore, reversal is required "only if the error is so egregious and created such harm that [appellant] 'has not had a fair and impartial trial . . . .'" Almanza, 686 S.W.2d at 171 (quoting Tex. Code Crim. Proc. Ann. art. 36.19). In evaluating harm, we must assay the damage "in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. In this case, the erroneous jury charge enabled the jury to potentially return a nonunanimous verdict as to any particular sexual assault offense charged. We believe this potential for lack of unanimity was heightened by the State's closing argument: Now when you go back to the verdict form, if you have found any one of those three paragraphs [regarding the different allegations of aggravated sexual assault] - - if you have found that the defendant did those things beyond a reasonable doubt, then you sign the verdict form that says "aggravated sexual assault, guilty." It could be any one of those three paragraphs. You don't have to believe all three of those beyond a reasonable doubt. You can. You can believe - - you can look at them and say, I believe he was guilty of this. I believe he was guilty of this. And I believe he was guilty of this. Or you can pick - - I say - - I think he was guilty of the first one and not the second one or the third one. But if you find any one of those paragraphs then it's aggravated sexual assault. Then in paragraph[s] 9, 10 and 11, it's the same thing with sexual assault. It's just alleging that the consent was without his consent because of - - he was unaware that it was happening or he was passed out and couldn't physically resist. And that would be on the second page of the verdict form. That's why there's an "or." (Emphasis added.) In this passage, the State's use of the first person, nominative case pronoun "I" suggests she was figuratively placing herself in the shoes of the individual jurors throughout her argument. Had she been attempting to figuratively place herself in the collective shoes of the entire jury, it would have been more reasonable for her to have avoided a first person, singular tense pronoun and opted instead for either the first person plural, nominative case pronoun "we" or used exclusively the second person nominative case pronoun "you." And, for the State to argue the trinity of allegations contained in the indictment's second count as alternative theories of committing the same offense rather than independent crimes further bolsters our analysis. Additionally, at the charge conference (as well as on appeal), the State consistently took the position that the indictment's second count merely alleged alternative theories of the same offense, rather than alleged separate crimes—a position that we now conclude was erroneous as a matter of law. The record reveals that facts central to the issues before the jury were in dispute. J. M. testified that one of the charged assaults—that J. M.'s penis penetrated Mathonican's mouth—never occurred. And, moreover, the testimony of one of the State's witnesses can be read to suggest that J. M. and Mathonican had a prior sexual relationship, evidence that might cause a jury to discount whether any of the alleged assaults truly involved nonconsensual conduct. And certainly, the record in this case shows Mathonican contested the entirety of the State's case regarding whether the sexual encounter involved consensual or nonconsensual acts. "The Texas Constitution guarantees due course of law and provides that a defendant charged with a felony must be convicted by a unanimous jury." Hendrix, 150 S.W.3d at 849. The jury charge in this case enabled the jury to return a nonunanimous guilty verdict in violation of Mathonican's right under the Texas Constitution. That possibility was aggravated by the State's closing argument. Accordingly, after considering the entire jury charge, the state of the evidence (including contested issues and the weight of probative evidence), the arguments of counsel, and all the information relevant to the jury charge error, we must conclude the error caused Mathonican egregious harm. We sustain Mathonican's first point of error. (2) On Remand, the State May Again Seek a Deadly Weapon Finding Mathonican's second and third points of error challenge the factual and legal sufficiency of the evidence to support the affirmative finding that Mathonican used or exhibited a deadly weapon during the commission of the sexual assaults. The third count of the indictment alleged Mathonican used his "seminal fluid" as a deadly weapon during the commission of the offense(s) because Mathonican carries the human immunodeficiency virus (HIV). Because we reverse Mathonican's conviction and remand for a new trial, that result requires us to address Mathonican's legal sufficiency challenge to the deadly weapon finding. Only if there was legally sufficient evidence that Mathonican, during the offense, used or exhibited a deadly weapon, namely his seminal fluid, may the State, on remand, seek a deadly weapon finding. We conclude the evidence was legally sufficient and that, therefore, the State may, again, seek a deadly weapon finding. The state of the evidence relevant to this issue can be quickly enumerated. After the alleged offenses, traces of semen from both Mathonican, who was admittedly HIV positive, and J. M. were found on the sheet on Mathonican's bed where the offenses are alleged to have occurred, as well as on a shirt found in Mathonican's living quarters. No evidence expressly showed when the semen deposits were made, and there was some—though conflicting—evidence that some undetailed sexual contact may have occurred between the two before the occasion of the alleged offense. The day after the alleged offense, J. M. presented himself for a rape examination, which revealed no semen on the oral or anal swab specimens he provided. Subsequent tests revealed no HIV antibodies in J. M.'s body. When we review the legal sufficiency of the evidence to support any particular evidentiary finding, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have made the finding beyond a reasonable doubt. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). The jury's deadly weapon finding against Mathonican can survive a legal sufficiency challenge only if there is legally sufficient evidence to support findings that (1) Mathonican's seminal fluid meets the statutory definition of a deadly weapon, (2) his seminal fluid was used or exhibited during the alleged offense, and (3) some person was put in actual danger. See Drichas, 175 S.W.3d at 798. The presence at the scene of commingled semen deposits from both men, found just after the alleged offense, when added to the evidence of various types of sexual contact between the two of them on this occasion, including penile penetrations by both Mathonican and J. M., provided the jury a sufficient and legitimate basis to find that Mathonican's seminal fluid had been used or exhibited during the sexual contacts in question. While there was some evidence of a possible previous sexual relationship between the two, that evidence was disputed by J. M.'s testimony. Given the conflict in that evidence, the jury was entitled to believe that there had been no prior sexual relationship between the two men and that the semen deposits were made at the time of the alleged offense. The apparent absence of semen on the oral or anal swabs taken from J. M.'s body the day after the alleged offense, and the subsequent lack of HIV antibodies found in his body, do not logically subvert the other evidence. The law does not require that a deadly weapon actually be used against anyone or even that anyone be in a "zone of danger," but merely that a deadly weapon be exhibited or used and that someone be in some danger. As the Texas Court of Criminal Appeals recently stated, Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992). Drichas, 175 S.W.3d at 798. The same is true of seminal fluid. It may become a deadly weapon that is used or exhibited, if the man producing it is HIV-positive and engages in unprotected sexual contact. See Najera v. State, 955 S.W.2d 698, 701 (Tex. App.—Austin 1997, no pet.) (evidence of unprotected sexual intercourse by HIV-positive man, evidence on how HIV is transmitted and the deadly effect of contracting the virus, but without evidence of ejaculation by defendant or age of semen stain sufficient for finding that penis and seminal fluid were deadly weapons). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B). We believe it has come to be beyond reasonable debate, generally known, and readily determinable by resort to unassailable sources, that seminal fluid from an HIV-positive man is capable of causing death or serious bodily injury to another person when the HIV-positive man engages in unprotected sexual contact. Therefore, that basic truth therefore need not be established at trial by expert testimony. In recent years, courts have universally recognized as judicially noticeable the fact that seminal fluid produced by an HIV-positive man during unprotected intimate sexual contact can transmit the virus, risking the transmittee contracting AIDS. Over the past decade, our nation's understanding of possible methods of transmitting the HIV has increased dramatically. It is a well-known fact that an infected individual may possibly transmit the HIV through unprotected sexual intercourse with his or her partner. We take judicial notice of the fact that the HIV may be transmitted through contact with an infected individual's blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus. State v. Keene, 629 N.W.2d 360, 365 (Iowa 2001) (citations omitted). The trial court took notice of ["several well-established and scientifically understood facts about AIDS and its transmission" including that "blood, semen, vaginal fluids, and breast milk" can transmit HIV], an action which we affirm. Faya v. Almaraz, 620 A.2d 327, 331 n.2 (Md. App. 1993). We take judicial notice of the fact that the HIV virus is a precursor to AIDS, a progressive and inevitability [sic] fatal disease syndrome. We further take judicial notice of the fact that intimate sexual contact whereby blood or semen of an infected person is transferred to an uninfected person is a primary method of spreading the infection. People v. Russell, 630 N.E.2d 794, 795 (Ill. 1994). All authorities have agreed that the disease is capable of being transmitted through sexual intercourse, is infectious, and is dangerous to the public health . . . . We agree that the district court could take judicial notice of the seriousness and the potential for transmissibility of the disease AIDS. Dunn v. White, 880 F.2d 1188, 1196 (10th Cir. 1989). Also approving judicial notice that unprotected sexual contact with an HIV-positive person risks transmission of HIV are State v. Mahan, 971 S.W.2d 307, 309 (Mo. 1998); Tischler v. Dimenna, 160 Misc.2d 525, 529–32 (N.Y. Misc. 1994); State v. Hutchinson, 734 N.E.2d 454, 457 (Ohio App. 1999) (extensive discussion: "In discussing the qualities, etiology, epidemiology and methodology of AIDS the court is taking judicial notice of those medical facts which are now considered indisputable."). In a Colorado case involving a remarkably similar deadly weapon provision—"capable of producing death or serious bodily injury," Colo. Rev. Stat. § 18-1-901 (3) (e) (IV)—and an HIV-positive defendant, the Colorado Court of Appeals recognized that "the dangers of HIV are widely known." State v. Shawn, 107 P.3d 1033, 1035–36 (Colo. App. 2004); see Brock v. State, 555 So.2d 285 (Ala. Crim. App. 1989) (judicial notice taken that AIDS is life-threatening disease and contraction of HIV would be serious physical injury). Further, J. M. testified to his understanding that unprotected sexual contact involving an HIV-positive person risks transmission of the virus. We find that the evidence in this case, viewed in a light most favorable to the prosecution, supports a conclusion that a rational trier of fact could have found beyond a reasonable doubt (1) that Mathonican's seminal fluid was capable of causing death or serious bodily injury in the manner of its use or intended use, (2) Mathonican's seminal fluid was used or exhibited during the alleged offenses, and (3) Mathonican thus put J. M. in danger of death or serious bodily injury. The jury could have properly found that the danger to J. M. was real, that is, more than hypothetical. J. M. need not have been in an actual zone of danger; it is sufficient that Mathonican's seminal fluid, as used or as intended to be used, was capable of causing death or serious bodily injury to J. M., even without proof that it did so or that it had any probability to do so. See Drichas, 175 S.W.3d at 799–800. The evidence was legally sufficient for a deadly weapon finding. Therefore, the State may, again, seek such a finding when this case is tried on remand. Conclusion Texas' sexual assault statute is a conduct-oriented offense. The State's indictment alleged, not alternative theories of committing the same offense of sexual assault, but instead alleged three different crimes under the sexual-assault statute. The trial court charged the jury in the disjunctive without requiring the jury to unanimously agree on any single charge of sexual assault. The State's closing argument at trial further exacerbated the error within the jury charge, to the degree that we must conclude Mathonican suffered egregious harm. Accordingly, we reverse the trial court's judgment and remand the case for a new trial. On remand, the State may, again, seek a deadly weapon finding. Josh R. Morriss, III Chief Justice CONCURRING IN PART, DISSENTING IN PART In the first section of its opinion, the majority concludes that Texas' sexual-assault statute, Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2005), is a conduct-oriented statute. The majority also concludes the trial court erred by submitting a charge to the jury that did not require a unanimous verdict, in violation of Mathonican's rights under the Texas Constitution. Because I agree with that analysis and conclusion, I concur with respect to that part of the majority opinion. I respectfully dissent, however, with regard to the majority's conclusion that the evidence supporting the jury's affirmative finding that Mathonican used or exhibited a deadly weapon is legally sufficient and that the State may, therefore, again seek such a finding on retrial. The State's indictment alleged that Mathonican used or exhibited his seminal fluid during the commission of the sexual assault and that Mathonican's seminal fluid was a deadly weapon. The jury agreed and made an affirmative deadly weapon finding. Mathonican contends on appeal that the State's evidence on this issue is legally and factually insufficient. That evidence showed Mathonican had the human immunodeficiency virus (HIV), and Mathonican concedes that a mixture of his and J. M.'s DNA was found from semen stains on a sheet and a shirt at the crime scene. I contend this circumstantial evidence is legally insufficient for a number of reasons. First, there was no proof of how long the stains had been on the sheet and shirt, and the evidence showed possible previous sexual encounters between J. M. and Mathonican. The majority opinion states that J. M. disputed the evidence of a possible previous sexual relationship between the two. J. M. testified under cross-examination, however, that he would not necessarily know if he had had sex with Mathonican before, as they "drank a lot over there." He said that it was a "possibility" and that it "could have happened." Second, the scientific analysis of the rape kit specimens taken from J. M. less than ten hours after the assaults shows that "[n]o spermatozoa, cellular constituents of semen, were detected on the anal, oral, or oral rinse smear slides" and "[a] presumptive test for the presence of semen was negative on the anal, oral, and oral rinse swabs . . . ." Further, medical testing done four days after the assault, and later, confirmed the absence of HIV antibodies in J. M.'s system. Third, and perhaps most significant, there was no expert medical testimony regarding the transmission of HIV, the virus' characteristics, or what the likely outcome of contracting the virus would be. While the scourge of HIV, the virus that causes Acquired Immune Deficiency Syndrome (AIDS), has been widely publicized, I believe several characteristics of that virus are still outside the realm of the public's common knowledge. For example, despite the best efforts of governmental health agencies and private charitable organizations working in the medical fields, I doubt the general populace understands the various ways the virus can and cannot be transmitted. Nor do I believe it is common knowledge that certain sexual behaviors carry an inherently greater risk of transmitting the virus than do other types of sexual behaviors. J. M., for example, testified in the instant case that he did not know the different ways a person can contract the HIV virus and that he did not believe it could be transferred through the mouth. Which behaviors are riskier than others? What degree of risk for transmitting HIV did the behaviors (that the jury found Mathonican and J. M. engaged in) present to J. M.? Did the fact that J. M. subsequently tested negative for HIV suggest J. M. had, in fact, not been exposed to Mathonican's seminal fluid? What is the gestation period for the virus, and how long can it take for it to show up? Is it possible that Mathonican could have, without reaching climax during any of the sexual acts, still transmitted (or exhibited) a medically significant amount of the HIV such that a rational fact-finder could conclude Mathonican's seminal fluid was "used or exhibited" as a deadly weapon during the commission of the assault? Is HIV necessarily deadly, or is it possible to live with HIV without the disease developing into AIDS? The jury had no expert medical or scientific testimony to answer these and many other fundamental questions—questions which I believe should be addressed before a jury can rationally conclude seminal fluid containing HIV is necessarily a deadly weapon. In Najera v. State, 955 S.W.2d 698 (Tex. App.—Austin 1997, no pet.), cited by the majority, the Third Court of Appeals affirmed an aggravated sexual assault conviction based on a finding that the defendant used or exhibited HIV-positive seminal fluid during the commission of the offense. In that case, however, the jury heard expert medical testimony from Donna Stanley, the serologist who tested the various blood and semen stains found on the evidence. Id. at 700-01. The jury also heard testimony from Robert Kaspar, M.D., an infectious disease specialist and the director of an HIV/AIDS treatment center. Id. at 701. Kaspar explained to the jury how HIV can be transmitted, specifically during sexual intercourse. Id. He also explained the link between HIV and AIDS, and further testified that AIDS is a disease for which there is no known cure. Id. And Kaspar testified that "[a]ccording to statistics current at the time of [Najera's] trial in February 1996, ninety-five percent of persons who contract HIV die within twelve years." Id. By contrast, none of this expert medical evidence or testimony was offered in Mathonican's trial. Similarly, in Weeks v. State, 834 S.W.2d 559 (Tex. App.—Eastland 1992, pet. ref'd), the Eleventh Court of Appeals affirmed the attempted murder conviction of an HIV-positive inmate who spit on a prison guard in an attempt to infect the guard with HIV. There, as was the case in Najera, the jury heard expert medical testimony from a number of experts. Mark E. Dowell, M.D., a doctor of infectious diseases at Baylor College of Medicine; Paul Drummond Cameron, Ph.D., Chairman of the Family Research Institute; Albert D. Wells, D.D.S., a dentist employed by the Texas Department of Criminal Justice at the Coffield Prison Unit; and Lorraine Day, M.D., an orthopedic surgeon employed by the University of San Francisco and Chief of the Orthopedic Department at San Francisco General Hospital, testified on behalf of the state. Dr. Dowell, Dr. Cameron, and Dr. Day qualified as experts on HIV. The witnesses collectively explained to the jury how HIV can be carried in an infected patient's saliva, how the virus can be spread, and the probability of infection through transfer via saliva from an infected person to an uninfected person. Id. at 562–65. The appellate court concluded that the State's expert medical evidence was sufficient to support Weeks' conviction. Id. at 565. However, unlike the record in Weeks, the record now before us reveals no similar quantity or quality of expert medical testimony on HIV, the virus' rate of transmission under facts similar to those alleged to have occurred between J. M. and Mathonican, or the rate at which HIV becomes the deadly disease AIDS. The majority opinion states that expert testimony was not required in the instant case because courts may take judicial notice "that seminal fluid from an HIV-positive man is capable of causing death or serious bodily injury to another person when the HIV-positive man engages in unprotected sexual contact," citing several cases from various jurisdictions. In none of the cases cited, however, was there a finding made—or required to be made—by the jury which either determined that transmission of HIV or bodily fluids was accomplished in a manner constituting use or exhibition of a deadly weapon. Further, in almost all these cases—the exception being cases decided at the summary judgment or early dismissal phase—some form of expert medical testimony was presented as evidence of how HIV is transmitted or the inherent dangers of such transmission. Another problem with the majority's judicial notice approach in this case is that there is nothing in the record showing that the trial court took judicial notice of anything. I agree that the trial court has the power to take judicial notice of adjudicative facts, either sua sponte or on motion of either party. Tex. R. Evid. 201. Such notice by the trial court in a criminal case, however, is not binding on the jury. The trial court must instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed by the court. See Tex. R. Evid. 201(g). I do not quibble with the established scientific conclusions regarding the dangers of HIV infection and the nature of its transmission. Perhaps judicial notice of such facts by the trial court, and a corresponding instruction to the jury, would have been appropriate in this case. The problem, however, is that no such judicial notice was requested or taken, and consequently, no instruction was given to the jury. Citing Drichas, 175 S.W.3d at 798, the majority opinion states that the deadly weapon finding in this case required a showing that (1) Mathonican's seminal fluid meets the statutory definition of a deadly weapon, (2) his seminal fluid was used or exhibited during the alleged offense, and (3) some person was put in actual danger. Again, the deadly weapon alleged in this case was Mathonican's seminal fluid. The only evidence of seminal fluid, however, was a medical report showing the presence of semen stains—for an unknown period of time—on a sheet and a shirt. The record is totally devoid of any evidence that the presence of those stains constituted a danger to anyone. See Drichas v. State, No. 06-04-00002-CR, 2006 WL 193135 (Tex. App.—Texarkana Jan. 27, 2006) (not designated for publication). For these reasons, I respectfully dissent to the majority's conclusion that the evidence supporting the jury's affirmative finding that Mathonican used or exhibited a deadly weapon is legally sufficient. The State should not be permitted, on retrial, from again seeking a deadly weapon finding. Donald R. Ross Justice Date Submitted: February 23, 2006 Date Decided: May 12, 2006 Publish