¶1Concurring & Dissenting Opinion by
¶2In 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.
¶3I 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.
¶4The State’s indictment alleged that Ma-thonican 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 Ma-thonican 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.
¶5First, 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 Ma-thonican. 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.”
¶6Second, the scientific analysis of the rape kit specimens taken from J.M. less than ten hours after the assaults
¶7Third, 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.
¶8Which behaviors are riskier than others? What degree of risk for transmitting HIV did the behaviors (that the jury found Ma-thonican 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 Mathon-ican’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.
¶9In 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 *73cure. Id.And Kaspar testified that “[according 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 Ma-thonican’s trial.
¶10Similarly, 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.
¶11The 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.
¶12The 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.
¶13Another problem with the majority’s judicial notice approach in this case is that *74there 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).
¶14I 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-
¶15Citing 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).
¶16For 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.
¶17. The evidence showed that the assaults occurred sometime after 10:00 p.m. on December 25, 2003. J.M. testified that, after the assaults, he was on the street at a pay tele*72phone trying to call for help when the police picked him up and took him to the police station. He was then taken from the police station to Parkland Hospital in Dallas, where the rape kit specimens were taken. The record shows J.M. checked into the hospital December 26 at 7:02 a.m. There was no evidence J.M. showered or otherwise cleaned up before the specimens were taken.
¶18. Brock v. State, 555 So.2d 285 (Ala.Crim.App.1989), cited by the majority for the proposition that "judicial notice [was] taken that AIDS is [a] life-threatening disease and contraction of HIV would be serious physical injury,” also holds that judicial notice may not be taken that biting is a means by which HIV may be transmitted, in the absence of any evidence in support thereof. The Alabama high court reversed Brock’s conviction for first-degree assault, which in that jurisdiction required a showing that the defendant committed the offense, “with intent to cause serious physical injury to any person by means of a deadly weapon or a dangerous instrument.” Id. at 287, citing Ala.Code 1975, Sec. 13A-6-20. The State had asserted that, where Brock had AIDS, his use of his mouth to bite a correctional officer constituted use of a deadly weapon. The court disagreed, noting, "[t]he state presented absolute*74ly no evidence as to the nature of AIDS or the manner in which it can be transmitted.” Id.
¶19. In Burles v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (cited with approval for application to Texas cases by Gardner v. State, 699 S.W.2d 831, 839 (Tex. Crim.App.1985)), the United States Supreme Court held that the Double Jeopardy Clause of the United States Constitution precludes retrying a defendant once an appellate court has concluded that the evidence is legally insufficient to sustain the trial court’s judgment. It follows, then, that, if the evidence is legally insufficient to sustain the jury's verdict regarding a specially submitted issue, then the State should likewise be precluded from retrying that issue on remand. Cf. Keeton v. State, 724 S.W.2d 58, 66 (Tex.Crim.App.1987) (Texas Court of Criminal Appeals' finding that evidence insufficient to support one special issue precludes State from seeking death penalty on retrial).