*1 evidence, of trial secret nor a more
flagrant disregard right appellants’ Shortly
cross examination. after these rev jurors,
elations made to the other were
juror changed proxi on Edwards her vote
mate to favor cause the defendants.
A compounded second incident the infrac- admonitory
tion of the trial court’s instruc- Wander, juror, brought
tions. Another
newspaper jury article into the room. The judge
essence of the article was that a trial change right jury
had the verdict with- for the regard
out decision made
jury. testimony of jurors was that jurors per- a result article the unimportant.
ceived their vote as After article,
discussing juror changed Pinto proximate pro-plain-
her vote on from cause pro-defendant, ending
tiff to thus a nine to jury
three deadlock. defining By outside nar- influence terms, thereby precluding judi-
rowest of inquiry impermissible
cial into blatant and conduct, the majority appel- denies
lants and, their to a fair trial unwit-
tingly, condones similar violations
future. The admonitions of trial court
provided in Rule 226a rendered are mean-
ingless. A rule not is not a enforced rule. Co., Supply
Robinson Elec. 706 S.W.2d at J., (Draughn, dissenting). I would sus- first, tenth, appellants second,
tain fif- points
teenth of error and remand the
cause for a new trial. HERNANDEZ, Appellant,
Joe Frank Texas, Appellee. STATE
No. A14-87-184-CR. Texas, Appeals
Court (14th Dist.).
Houston
June *2 complainant once lived San Anto- time,
nio next door to Hernandez. At the approximately sixty-seven years he was complainant old. The lived there from the approximately years time she was eleven During old until she was thirteen. this period, acquainted Hernandez himself with Houston, Ramsey, appellant. Scott for complainant family. and her The fami- Holmes, Jr., West, John B. Linda A. Pocohantas, ly moved to Arkansas when Houston, appellee. for complainant was thirteen. Two or later, complainant’s parents three C.J., BROWN, Before J. CURTISS sister, year and her half fourteen old Eve- CANNON, and and ROBERTSON JJ. lyn, girls’ par- drove to Antonio. The San Evelyn stay ents allowed to with Hernan- dez, ostensibly buy so he could her some OPINION complainant Evelyn clothes. The testified BROWN, mother, telephoned J. her and that she over- CURTISS Chief Justice. hurt, saying her it heard sister “[t]hat juryA Joe Frank Hernandez convicted Afterward, girls’ send Barb down.” violating section 22.- [Hernandez] complainant mother told the that she was 011(a)(2)(A) of the Texas Penal Code go “get stay with Hernandez to sexually assaulting a child between the complainant’s some clothes.” When ages of fourteen and seventeen. The court stay mother sent her to San Antonio punishment assessed his at confinement him, plane paid with Hernandez for the Department the Texas Corrections ticket. eight years. arrived, try had her After she Hernandez grounds Hernandez of error: asserts four in front of him to on her sister’s clothes First, refusing that the trial court erred in they “see how looked.” The regarding to submit to the evidence change testified Hernandez had her clothes complaining promiscuity witness him, stripping pant- down to her front of offense; second, that before the indicted After process. in the ies brassiere finding the trial court erred in not upon way Evelyn’s complimenting her promis- the defense of established her, and her sister clothes looked on after cuity under Tex.Pen. as a matter law room, approached Hernandez had left the 22.011(d)(1) (Vernon Supp.1988); Code body, complainant, put his hands on her third, admitting trial court erred in that the going to and informed her that she was depicting him into evidence a sleep night. him She threatened with erection; fourth, that the trial nude with an mother, said her to tell her but Hernandez admitting erred in evidence of extra- court she did already mother knew. She testified reverse, sustaining neous offenses. We her not resist his sexual advances because one, three, points and four. Hernan- up mother had “set it with him.” filed, to the that counsel addition brief took the on voir attorney dez’ proa se brief with Hernandez has filed challenge knowledge personal dire to her hybrid representation court. No up.” it She ex- that her mother had “set v. exists Texas. Rudd bargained plained that her mother had Normand (Tex.Crim.App.1981); sending Hernandez before (Tex.App.— Evelyn him the first time. After to visit ref'd). Ap hurts,” complain- pet. pe say Houston “it had called to [14th Dist.] telling nothing for mother Her- pro presents her se brief ant had overheard llant’s go have, however, nandez, complainant] was to examined the “if We review. [the there, some and find no he was pro se brief down [her] contentions morning, gave he her a The next in the interest of clothes.” should consider error we nightgown orange out short black justice. nightgown parents He Their lived his closet. had her wear the nandez. down relationship During away. complain- around the house. his a block street about gave outfits. selling her her several other ant Hernandez was both girls’ favors to He took sexual men. also trial, Evelyn had girls At denied the dis- pictures complainant. nude in front of Hernandez and denied robed girl slept Hernandez either with him. late moved to Houston in Hernandez plane paid for tickets on three four 1985. The mother made *3 complainant so the weekends could travel quit go to live school and with Hernandez from to to and Arkansas. He continued apartment. she in his one While bedroom nightgown her wear the black with have Houston, him in stayed with Hernandez Once, orange lace around his the house. complain- had sexual intercourse with the testified, complainant Evelyn accompanied brought Hernandez also ant. She testified Antonio, San with slept her to both puppy. the home a Pekinese He made girls. spent The last time complainant the complain- his mouth” on the Pekinese “use Hernandez, the in San Anto- weekend men the vagina. ant’s Other also visited short, heavy nio a set “Mexican” man came apartment. house. complainant to Hernandez’ The tes- days complainant es- Several before the that Hernandez her to the tified offered fat, short, caped apartment, the from one man for hundred Hernandez dollars. elderly apartment. man came to the black complainant sent the and the man to her complainant made the in the Hernandez sit they copulated. where A man bedroom orange her lap lingerie. man’s in and black Max named came to house the Hernandez' Hernandez and the man discussed a trade day. complainant same The Hernan- heard in parking which Hernandez would her dez offer to Max for dollars. a hundred restaurant, complainant lot for his the copu- sent Hernandez them to her to room the man years. was to “be with” for five performed orally upon late. She the man’s bedroom, her to the Hernandez sent where penis, sodomizing but after the man her she had relations with the man. sexual penetrate not vagina could her with his brought also home a Hernandez woman penis. complainant The she did days several com- named Anita before the object to the not sexual she abuse because plainant escaped. at He had visited Anita ground her afraid mother would her or past in to spoken heat her. She had her mobile home order to her mother assaults, including the sexual oil wells.” about oral “check on his After Hernandez sodomy, complainant, and her mother had continued to had Anita moved into sold the send her to slept Hernandez. Her mother told apartment the with Hernandez. pay her was “to Hernandez it the bills.” slept living in room. complainant The giving money her from time mother complainant testified she had left trial, Throughout complain- time. apartment before this time be- Hernandez’ very ant testified she afraid of much money, no be cause she had she would her mother. She mother had testified her Houston, out, locked she knew one hand, injuring hit her the head with her thought her and she Hernandez would find addition, the hand. she testified that However, got far. before she she testified scars on her head from her had resulted and cried had she was afraid because she hitting her in or three mother the head two elderly “he black man and sold to with an iron also testi- times skillet. She do. big” she did not know what to was so her once spanked fied Hernandez also 12, 1985, February night On the while figure because she could not how to out work, at Hernandez was buster, dust that had use the a vacuum apartment tele- pay to a went out of recently market. come out on the apartment phone. remained Anita pressed she girl let the back when A or two after weekend week her last Hernandez, telephone security at the door. complainant’s code visit phoned grandmother her family moved back to San Antonio. grandmother gave her Michigan. and her with Her- Her sister lived telephone unlisted number of an aunt who The trial court should admitted have hour,- lived in Conroe. After an her about previous complainant’s evidence of the picked up aunt her at 5600 Fannin. The promiscuity. Texas Penal Code 22.011 apart- aunt her took to the states: pick up ment her clothes and the Peki- (d) prosecution It defense to under is a puppy. nese Then her aunt took (a)(2) subsection of this section that: morning, complain- Conroe. The next (1) The child was at the time of the police. ant called the or older offense fourteen grand A jury indicted Hernandez as fol- prior and had to the time of the of- lows: engaged promiscuously in con- fense IN THE BY NAME AND AUTHORITY duct in that subsection.... described THE duly OF STATE OF TEXAS: The 412(e) Texas Rule of Criminal Evidence organized Jury County, Grand of Harris pro- also refers to the defendant’s Texas, presents in the District Court of promiscuous duce evidence of sexual con- Texas, County, Harris JOE FRANK *4 years of a child old or older. duct fourteen styled HERNANDEZ hereafter the De- fendant, February heretofore on or about argues The that Hernandez is not State 8, 1985, unlawfully did then and there promiscuity entitled to assert the defense intentionally knowingly cause the in the case. because consent is not an issue penetration vagina the of the of ... Com- Hernandez nor Neither the indictment of plainant, younger person a than seven- charge jury present in the case the to the spouse teen of and not his alleges theory rape. a of forcible The placing organ vagina his sexual in the of State, 703 State cites Moore v. S.W.2d Complainant. the AGAINST THE [14th Dist.] — Houston PEACE AND DIGNITY OF THE Moore, grand jury In had indict pet.). a STATE. ed the defendant for both sexual inter The trial court refused to admit evidence rape. course a child and forcible complainant promiscuous the had be- year old Moore had choked his fourteen indicted offense. The fore the date of the daughter and to kill her when threatened outside complainant’s half sister testified being raped. judgment in she resisted hearing complain- the of the that the to Moore recited that the State had moved engaged in ant had sexual relations with indictment paragraph dismiss the of the boys indicted several before the date of the charged rape. The record did that forcible seeing com- offense. She testified to the prosecution dropped not when the disclose in Hernan- plainant once naked a trailer at However, charge. rape the forcible top teenage boy. dez’ ranch on of a She in had indicated when it trial court Moore seeing complainant testified to also promiscuity of decided to allow evidence truck, Arkansas, pickup in a in be- naked defendant did not have to raise the that the boy only pair neath another who wore a of evidence of consent in order to offer issue testi- undershorts around his knees. She in decided promiscuity. This court top on seeing to naked fied legislature replaced Moore that when boy at his house in San Antonio. of another 21.09 Art. 1183 with [now Tex.Pen.Code that the She further testified to continue 21.011], legislature intended being “in bed with” and had told her about to raise consent be requiring a defendant “messing and stuff” with the broth- around promiscuity as allowing him to assert fore slept at Hernan- boy er of the she had support In at 764. defense. 703 S.W.2d she dez’ ranch. decision, Judge Clin quoted of this Moore relations with two engaged had in sexual in concurring judgment in the opinion ton’s once, than but indicated boys more name as the the same another case with she done so with one before she had case, 651 S.W. v. Hernandez complain- “going with” the other. When this (Tex.Crim.App.1983). 2d 746 any having relations with denied sexual ant Moore, opinion concur that decided court boys. other Thus, ring judgment in is was the the defendant entitled have Hernandez to only guidance Ap is the Court of Criminal evidence which relevant to the peals provided Judge on this to “promiscuity” issue. issue of submitted stated, Code, jury provided Clinton “V.T.C.A.Penal shown has otherwise 21.09, advantage renumbered as himself entitled to take [now § 21.011] pre makes victims under 17 who not have defense under statute. engaged
viously promiscuous in sexual or (emphasis original). at deviate sexual intercourse and those vic discourse, opinion After 14, regardless prior promis tims under that the Boutwell concluded defendant conduct, incapable legally cuous sexual not ... entitled” because the “otherwise giving consent sexual intercourse.” 651 apply defense homo promiscuity did Judge S.W.2d at 753. Clinton this in stated Thus, guidance sexual from assaults. explain order that testi Appeals, the Court of Criminal have we mony statutory rape required cases no only Judge Clinton’s concurrence in Her corroboration because she could not be an conflicting his nandez and dicta in Bout- accomplice rape. witness expected Judge apparently well. Clinton Judge majority Clinton wrote for the appellate his courts to heed statements opinion promiscuity on the issue of Bout explicitly He lan Boutwell. overruled the (Tex. well v. 167-69 guage appellate court in Austin in Crim.App.1985). began He to address pending his dicta. on While Boutwell promiscuity phrase, “[ajssuming with the rehearing, opinion publish before arguendo was entitled to ed, referring our decided court without employ promiscuity defense....” promiscuity consent mere followed, Judge discourse that Clinton Boulding raised the defense. *5 stated: 457, (Tex.App. S.W.2d 459 [14th — Houston [B]y providing “promiscuity” 1985), the de- rev’d 719 grounds, on other Dist.]
fense,
Legislature
(remand
the
pronounced
(Tex.Crim.App.1986)
has
S.W.2d 333
complaining
the
prior
ing
light
extrane-
of
witness’
for further consideration in
Boutwell).1
22.011(a)(2)
ous sexual
to
conduct
be relevant to a
Section
defines
material defensive issue
certain
with
as of-
statute.
sexual contacts
a child
apparently agreed
analyzing
promiscuity),
One of our sister courts
consent was material in
banc,
with
dicta
in Boutwell when it
with
(Tex.Crim.App.,
stated
No.
Oct.
en
1175-85
aff’d
mentioning
out
21,
consent
uncontroverted evi
1987) (not yet reported) (affirming upon
promiscuity
dence of
defense
established a
to
confession);
challenge to voluntariness
of
22.011(a)(2)
section
as matter of
See Or
law.
748,
State,
(Tex.App.
Chreene v.
691 S.W.2d
750
State,
(Tex.App
mand v.
cuity. As the evidence in Hernandez’ bill
The trial court admitted into evi
exceptions
would have raised such an
testimony
dence
ar
that Hernandez had
issue,
point
his first
of error is sustained.
ranged sexual liaisons between the com
plaining
witness
various individuals
Since the trial court did not admit
A jury
other than Hernandez.
is entitled
promiscuity,
possi
evidence of
it could not
surrounding
to know all the relevant
facts
bly have ruled that
the evidence estab
charged
and circumstances of a
offense.
promiscuity
lished the defense of
as a mat
(Tex.Crim.
Archer v.
may present evidence that the accused committed extraneous sexual offenses The trial admitting court erred in upon complainant under the of seven photograph the nude of Hernandez into teen part because those contacts are of a during prosecution’s evidence cross-ex continuing generally transaction. See amination of pros Hernandez’ doctor. The Boutwell v. 174-81 purportedly ecutor photograph offered the (opinion (Tex.Crim.App.1985) rehearing). on prove impotent Hernandez was not when explain The extraneous offenses the con sexually complainant. assaulted the tinuing relationship the defendant between objection Over the of Hernandez’s attor Boutwell, complainant. and the 719 S.W. ney, require the trial court refused to generally 2d at 176. The defendant must prosecutor present any evidence of the relationship, have denied the as Hernandez photograph date the was taken. The case, did in the before the extrane photograph evidence of the time the ous offenses are admissible. Id. It is then opinion taken was the of Hernandez’ doctor probative prejudicial more than to allow that the depict did not Hernan of acts between physiological dez’ during condition the time place charged and the defendant that First, in issue. the doctor testified Hernan proper relationship act its context of the dez had an picture. erection He parties. Id. *7 physiologically testified this was inconsist trial court admitted offenses the de- The during ent with Hernandez’ abilities arranging other by committed fendant question. Second, time in the doctor testi complainant. sexually men assault the good fied Hernandez had not in not fall the Bout- These offenses did within physical depicted photo condition They not sexual acts exception. were well graph since several before the al complain- defendant and the between the leged prosecutor assault occurred. The Hence, not enti- prosecutor ant. simply predicate. failed to set the There of these extrane- tled to fore, evidence, photo as admitted into this in including them the ous offenses without graph probative A had no value. nude point of appellant’s The fourth indictment. photograph of the defendant an erec error is sustained. is, nature, rape tion in a child case highly prejudicial. Admitting photo- and remanded. this Reversed
ROBERTSON, Justice, dissenting. She said she had one get hour to out of there. majority opinion holds that a seven- Q: you Did tell her what to do? ty-year-old man who has in- non-consensual A: I told to write this number down and sixteen-year-old tercourse with a female is you get it’s unlisted any can’t it acquittal entitled to an if the female had way. other previously engaged in consensual sexual Q: What number? intercourse with boys three or four of her age. Betty’s own A: Aunt holding, respectfully, To such I number.
but vigorously, dissent. Q: did Where she live? believe, Splendora, A: I at that time. opinion What the majority fails to state said, I remember, you And “Now call appellant Further, is that never testified. you get number because can’t it majority opinion does not reveal that way.” other So she hollered and asked appellant disputed, any fashion, never somebody they if pencil pen had a repeated complainant statements of the something so she could write with. And on both direct and cross-examination that she told me nobody any. later that willingly she did engage in the sexual up So she made going her mind she was acts but that she did so because of her fear to have to remember it. So she said she of both her appellant. mother and This fingers wrote the number with her exemplified by fear is testimony of her she remembered the number so she grandmother complainant whom the called right turned around and called Aunt Bet- pay telephone from a escaped when she ty. Betty getting “Now Aunt will be appellant’s from apartment in Houston. now, home from work so call her.” grandmother, Her appellant whom did not She did. question cross-examination, even on testi- Q: you Did again hear from Barbara fied the called her about 9:30 after that call? p.m. 12, 1985, February Leslie, on Michi- Betty picked A: Yes. I called after gan by long collect, crying. distance up. kept calling I down here to make following record shows the testimony by they right. sure made connections all grandmother: called her aunt who then said, “Grandma, A: She send me some got came and her at the street intersection money, trying get I’m out of here. given she had her aunt and where her aunt said, you?” I “Where are hiding building. found her behind a Fur- said, She “I’m in Houston.” majority opinion ther the fails to state that said, I “Whereabouts?” telephone had not used the said, And she “I don’t know ad- appellant’s home in San Antonio or his know, All I I’m in dress. Houston.” apartment in Houston because said, “My body’s And she been sold had told her that he had a recorder on the quick and I want to out of here as phones and would know she had made tele- as I can.” phone Finally, majority opinion calls. Q: upset you Did that to hear that? does not detail the facts as related Oh, said, A: did it. I “Whereabouts in complainant that she was held a virtual you, you Houston are Where are Barb? prisoner appellant’s home in San both calling from?” apartment Antonio and his Houston be- said, pay phone She “From a on a protected by burglar cause each was bars comer.” gate and an iron locked that she could not said, IAnd “Look out there and see reenter if she left the house. *8 what the name of the street is.” disagree analysis I respectfully with the said,
So she did. She “It’s Fannin.” applicable majority. It law said, Barb, my gosh, long I “Oh I’m so has in this state that far been law away you from there I intercourse was with a can’t where the sexual consent, prior right away.” under the female
329
Hernandez,
754,
peals in
651
at
promiscuous
only
conduct is a defense
S.W.2d
legisla-
is
in the case.
compelling
when consent
an issue
without
indicia that
859,
(Tex.
State,
Wright v.
863
ture intended to obliterate such
distinc-
State,
Crim.App.1975); Esquivel v.
506
reason,
tion founded in
I would hold that
613,
(Tex.Crim.App.1974).
S.W.2d
616
As
22.011(d)
requirement,
embraces the
as
§
said in
703
we
Moore v.
S.W.2d
always,
previous promiscui-
that before the
(Tex.App.
764
[14th Dist.]
ages
ty of a female between the
and
— Houston
pet.)
charge
17 can be a defense to a
of sexual
course,
Of
these cases construe the
abuse,
must be
that she
there
21.09,
predecessor to section
consensually
participated.
Appellant’s
Tex.Penal
(Vernon 1925).
art. 1183
points
Ann.
first and second
of error should be
Code
However,
legislature did
we believe the
overruled.
change
requirement
not intend to
disagree
majority’s
I also
hold-
they
penal
when
codified the
code in ing
the admission of the
that
appellant posing in the nude was reversible
There we held that even if a female be
proper
put
error. To
the matter
ages
previously
of 14
tween
and 17 had
context,
important
it is
to look to the testi-
intercourse,
engaged in sexual
such evi
Rivers,
mony.
practiced
Dr. Franklin
who
dence
unless consent
was
admissible
medicine,
that he had
internal
in issue.
See also Lewis v.
treating appellant
been
for
fifteen or
some
Antonio
— San
and,
rule,
twenty years
“as a
I would see
'd,
filed).
pet.
untimely
ref
And the
year.”
him at least once a
When asked
appeals
court of criminal
in Hernandez v.
about
he had
whether
occasion
treat
(Tex.Crim.App.
appellant
dysfunction,”
for
“sexual
1983) pointed
purpose
out that the
in revi
appellant
problem
doctor
“had a
stated
rape
sions of the
statutes has
to make
impotence
inability
perform”
prosecution
rape
cases less difficult.
explained:
addressing
While the court was there
quite
years ago
That
number
issue of whether corroboration of the minor
that he first mentioned it to me off the
required,
language
appro
victim was
is
embarrassing subject
record.
It was an
priate to the issue before us. There the
him,
it,
and he had never mentioned
court stated:
though,
leaving
as he
the office on
Surely,
Legis-
we cannot attribute to the
questioned
pos-
one occasion he
me about
lature
protect
an intention to
a certain
problems.
sible causes of such
And that
victims,
children,
class of
such as
on the
very briefly
discussed
on that occa-
hand,
body
one
and also attribute to that
years ago
spoke
four
he
sion. Then
also
an intention to make those same victims
see,
time,
of this. He was at that
let’s
criminally culpable
persons
as those
that was in November of ’82. He said
against
protection
designed
whom that
is
cripple.
that he was an absolute
It was
to shield.
impossible
him
if
wondered
Hernandez,
Contrary doctor, testimony than he does the courtroom. The doc- (both the sister and mother tor testified that he can’t have an erec- pellant marked moved fore condition.” was taken —it could On redirect but that graph “erect if that to discern that made.) copy of the photograph prosecutor in the nude with an erection. accompanying the record is a xerographic scribed in times and On cross-examination of the that called as witnesses When the photograph photograph [1982] “Anita”, appellant’s fiance, “sleeping” as and and the for The doctor identified the he did not know being picture both San Antonio and Houston. the record as response by when he was in better identification, prosecutor examination the doctor exhibited a is what was taken a did show that his following about which have been by appellant) appellant you had the and it is depicting appellant when objection by ap- photograph, “considerally wish to prosecutor appellant; jury “years ago.” complaint (The photograph doctor, at various impossible was penis physical was re- know,” picture exhibit opined photo- living that be- the de- is an accurate ting ditioned on its identification resolve that trial urged by happier that lant’s] whether “the day, whether he does graph, “looked completely different had been It is abundantly clear that ment. ent than going tion and have an judge jury. [is that] picture obviously admissibility appearance than he to show photograph today” appellant, sufficiently inwas erection. according The portrayal and he that and it’s direct issue, he prosecutor. Obviously, relevant to the issue before only doesn’t does as only disputed a something and how he which he did of a as shown in the position urged certainly into evidence. difference I think this identified and that it to his of facts relevant to have any photograph by appellant the courtroom,” to observe and a little differ- findings looks a little a witness as appears photograph issue was in [appel- by clothes in picture impeach- is con admit- photo- can’t than to- or is issue and on verification such wit made: person knowledge ness or a that MR. [appellant’s RAMSEY counsel]: representation is a correct anticipate I get What this is to State, 404, such facts. v. 549 Goss try back door what the State didn’t (Tex.Crim.App.1978); Haas v. choose to into the front door. This is 206, (Tex.Crim.App.1973); 498 S.W.2d picture testimony a that we have no as to Rodriguez v. happy when it was taken. I’ll be for the (Tex.App. pet.). Antonio A doctor to look at it. There nowas testi- — San photograph, proved representa taken, to be true mony as to when it was who took person, it, place, thing tion of the it you which picture and look at the and it’s purports represent, competent is completely than evi different Mr. Hernandez things dence of those is materi is. It is Mr. which it Hernandez and it’s a com- give al pletely picture different he and relevant for a witness to looks completely description, today. Terry different than he does verbal 491 S.W. (Tex.Crim.App.1973), I see no relevance 2d to influence the and the photo many years photographs on a taken admission in evidence of must ago might necessarily largely to indicate when he at one in the discretion of rest point clearly perform be judge, able the trial and his action will not be can’t, according when he to the doc- showing now disturbed the absence of a of an picture, tor. If I’d the State has another Terry, of discretion. at abuse happy 163; be to see it. Davis v. ref’d). pet. MS. MANTOOTH [state’s counsel]: — Dallas photograph depict doctor testified that the ap- difference in Mr. Hernandez’s photo ed with an erection. The
pearance appears today, he how graph purposes of im picture doesn’t clothes in that was relevant have testimony appel- certainly happier peaching little the doctor’s and he looks a bit
331 having point impotent incapable Appellant’s lant and fourth of error should was be State, an 676 erection. Lewis v. S.W.2d overruled. Cf. 136, (Tex.Crim.App.1984). 139 I affirm would the conviction. timing not misled as to the of the picture since the doctor testified that the
picture have been could taken much earlier
than the occurrence the offense with appellant was Further charged.
which
more, evidence, con testimony there
trary testimony, appel to the doctor’s in fact not could impotent
lant was erection. error in BLEDSOE, have an There is no Wayne Appellant, Kenneth photograph tes admitting there is where thing. timony showing admitted the same Texas, Appellee. STATE 913, (Tex. 696 914 Brown v. S.W.2d Crim.App.1985); 727 S.W. Colston v. No. C14-87-426-CR. 683, 2d 686 [1st Dist.] — Houston Texas, of Appeals Court After pet.). had (14 Dist.). Houston authenticated, properly only objec appellant photo tion which June graph’s admissibility weight its went to Davis, admissibility. rather than its See showing 81-82. S.W.2d at There is no judge an of discretion trial abuse admitting and, photograph,
therefore, appellant’s point third of error
should overruled. be
Finally, disagree I that the trial court admitting
erred evidence of the sexual
conduct between the and three appellant.
other individuals other than
complainant testified that on each of
three occasions when she had sexual rela- men,
tions with the three older two of
whom friends of on the appellant, were
other occasion a man appellant with whom negotiating property, she lease of
engaged in the sexual while intercourse
appellant appel- and because instructed her to
lant do so. Each was
done without consent. On two receiving
occasions benefitted and on the other he was
$100 occasion
negotiating the lease. I this evi- As view
dence, part it was admissible as facts circumstances of
relevant
charged offense. Moreno v. (Tex.Crim.App.1986); 743-44
Mann v. — denied, (Tex.Crim.App.1986), U.S. cert. (1987).
—, 107 S.Ct. L.Ed.2d
I disagree reversible committed error was admitting jury. this evidence before