Pawson v. State

former statute must remain the in simi- same

lar context successor rule of court. OPINION ON STATE’S PETITION FOR Code, V.T.C.A. Government DISCRETIONARY REVIEW (rules may “abridge” not or “modify” sub- McCORMICK, Presiding Judge. rights litigant). stantive jury appellant Ralph convicted Wilbur Moss, again, Because sexually assaulting once a Pawson reasoning, punishment decision “should be made with but years’ assessed at twelve con majority reason,” id., $10,000 Y.T.C.A., declines to at 546 finement and a fine. Penal P.J., (Onion, 22.011(a)(2)(A). dissenting), Code, woodenly ap instead Section direct On approves a reading peal, Appeals literal of a rule of court the Court of reversed con viction, directly contrary judi- not to consistent and remanded the cause a new for cial statutory language construction of like trial. Pawson v. No. 2-89-007-CR Worth, (Tex.App. used since 1858 from which the January rule de- delivered — Fort rived, 1990) but also (nonpublished). to constitutional since granted dictates We entitling appellant petition to a judgment discretionary of State’s for review to I acquittal, prosecution must dissent. in a determine whether

V.T.C.A., Code, 22.011(a)(2), Penal Section defendant must claim the victim consented as MALONEY, JJ., join. MILLER and prerequisite raising de Code, V.T.C.A.,

fense under Section 22.011(d)(1).

In Hernandez v. 1993), (Tex.Cr.App., this Court decided the effect, and, adversely the State held is irrelevant 22.011(a)(2). under Section Therefore, ground we overrule the State’s Ralph PAWSON, Appellant, Wilbur review, judgment and affirm the of the Court Appeals. Texas, Appellee. The STATE of WHITE, J., dissents with note: respectfully I dissent for the reasons set No. 367-90. dissenting opinion out Hernandez (Tex.Cr.App., S.W.2d 908 Texas, Appeals Court of Criminal En Banc. BAIRD, J., joins opinion but dissents Oct. publish. decision

MEYERS, J., participating. not CLINTON, Judge, concurring. Court, join I write further, emphasize pe essentially certain particular culiarities of this case that found Hernandez v. 1988), affirmed — Houston Metcalfe, Dallas, appellant.

Don (Tex.Cr.App.1993, rehearing 22, 1993), although denied Cobb, Atty., Jerry Former Dist. Gwin- enough. surely facts there are bizarre Jessee, Nancy da At- Burns Asst. Dist. (November 1, Denton, Huttash, tys., Atty., pertinent Robert State’s As Austin, provides: for the State.

“(a) be- to the assault if the his child victim consented person commits an offense person: the invoke defense. fore itself contains no mind that the statute Never (1) intentionally knowingly: or fact, requirement. the where once such (A) ... penetration the the causes of statutory expressly con- rape made statute organ person female sexual of another unchastity of sent an element the former any spouse the the

who is not of actor on current the consent; means, person’s without that no One face contains such limitation. (2) intentionally n ^[*] n knowingly: ^[*] n ^[*] indeed language of the statute would think, that is the exact in that event, conclusion reached that control, and the plain this Court Hernandez.2 (A) ... penetration the the cause of any organ female sexual child formulated, currently the statute does As means; some, problem imagined by present the not general of As

at least the run cases. Judge convincingly demonstrates Overstreet (c) In this section: understood, Hernandez, thus for the Court remotely nothing even absurd about there is (1) person younger means a “Child” statutory presently composed. the scheme as years age than of the is not spouse the actor. therefore, simply to con- tempting, It is (d) It under is a defense to wrong pled theory of clude that the State the (a)(2) of Subsection this section that: in this if it wished sexual assault case complain- the disproving avoid evidence of (1) child the the was at time promiscuity. On the facts of the instant ant’s or older and had offense case, however, is not facile. that conclusion so engaged to the time of the offense peculiar, and not fit

promiscuously in in For the facts here are do conduct described subseetion[.]”1 that handily theory assault within either of sexual 22.011, supra. under immediately will notice One that whereas (a)(1)(A) requires rape subsection alleges appellant caused The indictment consent,” person’s be female “without that organ of penetration of the female sexual (a)(2)(A) subsection a child denounces complainant, stepdaughter, his his with mentioning without the matter of consent. that once finger. Complainant recounted providing a defense of fourteen, being she after out with conduct home, came went into some friends she older, child subsection appellant parents and told of her bedroom (d)(1) is silent “consent.” also about go her so he could her to into bedroom her; into bed- appellant came her “check” Nevertheless, the trial court below and occurred, and the conduct in room seemingly court of State require now would the accused show by limiting exception self-discipline Emphasis supplied throughout applying mine unless otherwise indicated. where the result situations sense, be, genuine plain language would in a language explained plain

2. We that "the absurd, i.e., impossible quite where it is conse- 22.011 docs lead to absurd ... Congress have the result could intended quences Opinion, State[J” feared absurdity clear as is so and where the In that this Court adhered to admonishment anyone.” be to most obvious readily plain that courts should not meaning find the Department Jus- Public v. United States Citizen justification a statute as a absurd tice, 470-71, 109 S.Ct. 491 U.S. resorting to cxtratcxtual aids. (Kennedy, 105 L.Ed.2d legitimate exception remains a tool “This J., concurring). judiciary long acts as the Court my lay “He had off prosecuted me take clothes and on have for sexual assault bed, genital. and he my 22.011(a)(1), For, checked supra. other than * n * He took his hand and he rub possible threat force or use violence bing fingers on it. And he stuck in it submission, appears compel there no other rubbing saying was around that he theory supported by the evidence checking was for something.” prove penetration the State could that complainant’s organ finger sexual with his being —“it” “female I organ.” her SF accomplished was without her consent as that 129-35. She further she was testified 22.011(b)(2), supra. §in is defined More- appellant try going “afraid” that to to “was over, against theory a of forcible sexual as- something do else besides what was do- he 22.011(a)(1), supra, under appellant sault ing.” 134. Later on examina- redirect might successfully interpose parent-child explained parents’ tion she in while her justification enumerated in V.T.C.A. Penal presence bedroom of her mother Code, appears § 9.61.4 It the State’s real appellant suspected had said that she in concern statutory cause is that “had doing drugs been or had sex with some- might particu- scheme not accommodate the body” her; and wanted to “check” then on this, lar facts and other like cases. she cross-examination admitted her mother appellant checking,” had told “to do the statutory That rational and workable “gave authority him the to check [her].” may loopholes, apparent scheme contain how- 292-293, point, SF 332-334.3 At com- one ever, judicial justify does not inter lineation. plainant appellant testified had a belt his Certainly stepfather’s behavior “check- during hand assault. 252. ing” suspected promiscuous stepdaughter his belt, here, presented But presence hardly for the it in the manner even in likely discretion, successfully parental seems that the appear State could name of will un- (2) suspicions 3. appellant’s degree record reveals when and to the the actor reason- founded; stepdaughter seem well his admitted to ably necessary believes the force to disci- is certain acts of sexual intercourse. The pline promote safeguard the child or or to his testimony court of summarized her welfare. unpublished opinion as follows: (b) section, purposes For of this 'in loco present complainant "In the case the testi- parentis’ grandparent guardian, includes or fied that she had sexual intercourse at the any acting by, through, person or under the party. of fourteen drunk She while at a jurisdiction direction of child, court with over the having admitted to had sexual intercourse anyone express implied or has boy. more than once with the same At one parent parents.” point appellant in trial admitted she she told justified is "[t]he threat of force gotten party that she drunk and had had at a justified chapter." of force the use is boy. sex with more than one She contra- later Code, § V.T.C.A. If the 9.04. force or dicted this statement.” penetration digital threat that rendered the Worth, Pawson 2- v. State No. — Fort justified legally "without consent” was under 89-007-CR, 31, 1990) January (Slip op. delivered provisions, appear pen- it out, these that the correctly points at however, In the State its brief itself But if etration was not unlawful. even testimony "proffered evi that this interpreted provisions these cannot be to create a dence" trial court admit for which the would not jury digital penetration step- consideration because the "consent” defense to forcible daughter, general legislative not shown. it at least shows a context, undisputed query Given the whether attitude that even assaultive conduct on the Legislature proscribe supervisory intended to against parent it was his if intended to parental disciplinary or discretion, done in acts exercise of welfare, ought promote the to be immune child’s require more to child to much Here, by prosecuting from state interference. consent to them. 22.011(a)(2), appellant for sexual under assault (a)(1), persuading rather than and then the trial 9.61, supra, reads: court that is no to sexual “(a) force, force, deadly The use of but not theory prosecution, under the assault former against younger justi- a child than is effectively the State has robbed fied: (1) parental whatsoever discretion as a recourse to parent step- if the actor is the child’s child; justification for Is this what the parent acting parentis his conduct. or is loco ante. intended? See n. constituting “no familiarity,” cent fact, alone appar is seemly best. conduct threats, § 22.- ently illegal if force or he uses assault.”1 aggravated than an more Enfield 011(a)(1), her,5 is compel or if she 250 S.W. inclusive, ages 14 and between the therein; v.Wair (1923), and cases cited prove promiscuity the satisfac he cannot S.W.2d Tex.Cr.R. (a)(2) id., (d). Otherwise, jury, & tion of Daywood v. 157 Tex. see also however, for a liable hold accused Cr.R. 22.011(f), degree felony, supra, is second finger private part “indecent (putting judgment has make a 535d, appropriate authorized. be fondling” While former judiciary decry apparent statu for the allegations of indictment and under fill it. tory gap, liberty we not at to lesser included of aggravated assault not Judicially to add an element consent fense). require, as some would under separation powers, violates both Reflecting contemporaneous societal tenets Constitution, II, § and Article 1 of the Texas expressed lan- morality usually in biblical Process right accused’s under the Due always provided guage, our earlier statutes prosecut and course of law Clause due to be “rape knowledge is carnal of a wom- that it, Legislature ed under the law as the wrote prescribed and con- an” under circumstances Mulla judges rather than recast as it.6 Cf. Wilbur, ditions, 684, 1881, including varying of the ney v. treatments 421 95 44 U.S. S.Ct. (1975). 508 L.Ed.2d years. 10 to 18 age of consent from Kruger v. opinion generally dissenting and With those additional observations join supplementary opinion I State, 389, comments 386, 387, 5;n. n. 13 623 S.W.2d of the Court. (Tex.Cr.App.1981). Regardless age, how- ever, knowledge” was constant “carnal APPENDIX core consen- offensive conduct.2 Ralph Pawson v. Wilbur of knowledge” “carnal sual female The State Texas e.g., Ed- rape, was still I State, 210, 181 wards v. 78 Tex.Cr.R. S.W. (1915); Rodgers v. Tex.App. 195 30 on, Early handling, like other kinds of as an “inde-

“fingering” regarded law 4, Chronological development policy 5. But sec nn. 3 & ante. needs. judicial recognition along application, and declaring public policy 6. Because state comment, is in the as well as tracked editorial function, essentially legisla legislative and the clarity appendix to to demonstrate power constitutionally tive vested this State is legislative policy. in the determination of III, 1, Legislature Legisla in Article “the throughout appen- emphasis All and 1. authority change ture has hill may depart thus the law and is mine otherwise indicated. dix unless public from a theretofore established 917, policy.” Payne, Scarborough v. 528, (10 Compare years), P.C. 2. article 1879 (Tex.Civ.App. at 919 error Antonio 317, 239, — San Tex.App. 23 5 S.W. Nicholas refused. (12 (1887); 1891, p. Acts 96 240 amended Legisla strong presumption “There is that a 391, 23 years), Nichols 32 Tex.Cr.R. correctly appreciates ture and understands 633, (15 (1893); 680 Article P.C. 1895 S.W. people, needs of its own that its laws are directed 1183, (18 years, years), and P.C. 1925 problems by experience.” manifest Tex made years or character if 15 with defense older). unchaste McCraw, Armory 132 as National Guard Board v. 1183, supra, was from Article derived 613, 627, (1939). Tex. at 634 1918, C.S., 50, Leg. p. 4th Acts 33rd Ch. constitutionally legisla "Whether of not sound 1063, 1911, amended), (article the stated P.C. fair, harsh, wise, expedi just, complete, tion is defining rape necessity being “present law ent, desirable, necessary, good policy must be protection young adequate not does girls furnish courts, decided of this State.” Clawson, McGregor [citations omitted].” crime of "The first essential to the element 922, (Tex.Civ.App. Waco), no at 928 knowledge,' a term that ordi- is 'carnal — history. writ signifies narily intercourse or a com- only’ exer- ‘penetration Over the did indeed pleted act of But coition. conviction, power authority depart proved from it cised need be as a basis prior public by changing pro- limiting policy penal laws the ‘carnal said that has been knowledge' only,’ Legisla- scribing ‘penetration what sexual conduct to reflect offensive question of evolving eliminate the perceived ture intended to to be societal views 56, 229, (1911);

Tex.Cr.R. 134 S.W. at 230 510, Shoemaker 1077, (1891); 518, S.W. 58 Tex.Cr.R. State was 887, (1910).3 S.W. permitted to adduce evidence of con- sensual intercourse between parties the same circumstances, in certain e.g., Battles v. B 63 Tex.Cr.R. 140 S.W. The statute was amended Acts (1911); but precluded defendant was C.S., (article Leg. 33rd 4th Ch. showing he, as a defense that another or 1925), introducing the defense of previously unchaste, others had rendered her “previous unchaste character” in “consent e.g., Clardy 66 Tex.Cr.R. cases.” Norman v. 89 Tex.Cr.R. S.W. Foreman v. (1931).4 230 S.W. 991 loss; 'emission’ may, in such Be cases. this as it longer contributed to that she is no knowledge there can etration, pen- argument be no carnal chaste. It say without is not a sound prosecutrix in this case organ this means that is immune from the sexual men, appel- as to all other but not from organ of the male entered the sexual distinction; lant. The statute makes no such female.” neither can we.” Calhoun v. 290-291, holding Til S.W. at act or 965, (1938), quoting approvingly from 35 acts of intercourse with defendant would render 790, 5; Tex.Jur. see 94 Enfield 1063, her unchaste under former article as 226, (1923); Tex.Cr.R. State, 250 S.W. 162 Patton v. 1183, (article amended 128, 51, 105 Tex.Cr.R. 287 S.W. (1926); 127, judicial Buchanan v. exposition 41 Tex.Cr.R. 3. One 52 of the necessities of the (1899); Lujano by S.W. 769 Judge Harper times circa 1910 32 was made Tex.Cr.R. for 414, (1893). the Court in Battles v. 24 S.W. 97 woman,' hope dépends "A 'chaste "The of meaning within the our state and of the nation homes, woman, purity preservation on the and applied law of our signifies as to an unmarried purity pre- and the of our homes can be one who had knowledge has no carnal of men. by protecting girls served the virtue of our [citations omitted]. An 'unchaste' unmarried they years until arrive at the of discretion and woman is one who knowledge has had carnal of state, judgment, policy and it is the of this and statute, men, meaning within the of the [cita- one, every a wise to render assistance in the omitted].” tions 330, Norman v. 89 Tex.Cr.R. accomplishment purpose punish of that and to 991, 230 S.W. at 143, Cloninger severely persons by all insidious means 91 Tex.Cr.R. 237 S.W. gain purpose the confidence of children for the (1921), Dacke, quoting approvingly from State v. defiling girl years age of them. A under 15 L.R.A.(N.S.) 59 Wash. 109 P. 173: easily astray, away can be led when taken from previously "The term 'of chaste character' mother, protecting by the care of a one in means the same in law as in It morals. means confidence, by whom she has or when solicited a female who has never submitted herself to uncle; her father or and a lecherous scoundrel man, the sexual embrace and who still eyes pure who casts his lascivious on a maiden * * n * virginal chastity. retains her cer [I]t design and conceives and forms the to have who, tainly cannot be contended that one carnal intercourse with a child under impulse, moved lewd desire and libidinous induces, through his conduct either love or submits herself to the carnal embrace of a fear, man embraces, the child to submit to his is a July from November to whenever the time and type society, criminal of the most hurtful of place opportune, are previously is a [of female and we do not feel inclined to limit the rules of day chaste strictly character] on the 30th of June. evidence more in that character of case argument applicable prosecutrix against than is exempt [An that a to other offenses the is requirement law." chastity] from purely is one, and, 140 S.W. at 797. although may sentimental be permit abhorrent to the moral sense to a man many opinions 4. Author of on the matter of “car- protect himself with the shield of his own knowledge," Presiding Judge nal Morrow wrote wrong, dealing legal question, we are with a for the Court: morals; and not one of sentiment nor and in Legislature apparently ap- "The has selected guilty [rape order to find a man aof female propriate language in which to declare that in child], we must first find a female who can in case, prosecutrix being such a over 15 up requirement all its essentials measure committed, years age when the act was charged of the law to be violated. The test of showing proof previous that she was of personal physical virtue in a woman character, is unchaste no can conviction result. test, when, sin, voluntary facts, reason of her being These established and found to be instructions, virginal purity, jury she has lost her it matters not true under suitable character, but previous

she not of chaste unchastity no is Presiding Judge as Under article Onion The no of consent.” were there is Wright pointed out in bear ante out cases discussed note (Tex.Cr.App.1975), “this 862-863 by the cases cited proposition, first repeatedly prose- that if the Court has held suggesting to be Wright the Court seems years proviso is provided by cutrix older accused that the defense contesting show, closely akin to is so consent cases as case; hardly bring protects operation once been the but into the statute legal justify that such conduct conclusion and bars accused the state. chastity. Nor the fact show lack of tends to of drink, becoming strong under the influence of one manifestly ... statute deplorable, if to be held in law to even preserve purity females framed to immorality, conduct or other involve sexual age punishment and to refrain in that even tend direction. having a fe- of one intercourse with universally in courts been held our It has male over 15 whom the evidence that in cases when consent was showed to be unchaste at the time prosecutrix reputation general bad offense was committed.” chastity might having a ten- be shown State, supra, Norman v. at 230 S.W. 992-993 dency claim to weaken the state’s of non-con- * * ' (error * preclude use evidence of unchaste allowing proof cases [There sent. are conduct of female 15 to establish her any man in certain of acts of intercourse with unchastity). They Cloninger unique exceptions Accord: Tex. circumstances]. testimony (prior general rule to the effect that Cr.R. S.W. 288 act or acts by prose- particular of intercourse instances rendered of intercourse her "un admitted, [cita- with others will not be cutrix Act); meaning chaste” within passing we note omitted]. tions Lyons v. 252 S.W. 518 mentioned the court below excluded case last (1923) (proof knowledge carnal before of inter testimony of witness for defense); complete course with sec prosecutrix, hugged and kissed swore that he Edworthy v. 371 S.W.2d upheld court said action the trial and this of 1963) (Opinion Rehearing). (Tex.Cr.App. on courtf, citing an earlier wherein the court case] hand, On the other while the Court acknowl- refused to allow a defense witness below edged unchastity may prova- and be that consent him; prosecutrix court swear the kissed this evidence, by chary ble it was circumstantial proof observing it would not that from such probative about and value the relevance of evi- man to follow that she would allow another dence, knowledge,” going of "carnal short kiss her.” coming some kinds of behavior rubric Id., view at 362-363. This was exam- tending conduct” to show or “lascivious one approved by in v. ined the Court Fletcher and matters, sundry other defensive theories. (1941), a S.W.2d 233 141 Tex.Cr.R. consent, threats, example, severely As to for the Court by "gang rape” force defendant be- and involving ing penetrate year girl who divided in a case a woman above the 15 old the first Rejecting virgin time. was a at the testified she consent. Satterwhite 113 Tex.Cr.R. that circumstantial evi- (1929). his contention similar Deci- A Commissioners' unchastity, Commissioner dence established her judgment sion affirmed the conviction virgini- explained Krueger account of her that on rape; appellant’s rehearing on motion for Presid- ty ver- was not entitled to directed defendant ing Judge granted appel- Morrow for the Court though acquittal her dict "even issue of lant a for refusal the trial reversal court raised,” might unchastity have been viz: proffered previ- admit certain evidence that on However, any believe that "... we do not men, ous while out with other com- occasions intoxicating may a drink of female who take plainant permitted had become intoxicated liquor permit even friends of kiss person.” "to her them fondle On State's motion opposite hug her be sex to and kiss rehearing Judge assayed the Lattimore previous sufficient to raise the issue her them, changing he times as viewed suspicion unchastity. might so cast To hold "... to the that it would be far It seems writer upon great of our virtuous women number long-established better to the rules of to adhere good We think their character. and besmirch procedure regard, fly in Texas in such than fully definitely question set- has been Young speculative we wot ills not of. America by by court in rendered tled hugging [supra].” 1929 seems adverse of Satterwhite the case sex, Id., kissing opposite at of the have 241. friends 1183, i.e., article (Rape); Section 21.02 Sec- lack of consent on the of an adult (Aggravated wom- tion 21.03 Rape); Section 21.09 Child).6 showing prior (Rape others, consensual sexual inter- In it converted proposition enticing” course that the “child converse denounced former is sus- (Sexual Note, however, tainable.5 535b to Section 21.10 Wright Abuse of a Child), court and also construing only proviso; fondling” transformed “child awkwardly expressly described former Code, article 535d ruled that V.T.C.A. Penal to a 21.09(b) “indecency” manner of Section 21.- applicable “was not appellant’s 11(a).7 trial.” In its next session the enacted C amendments and additions to the Penal Code (Sexual Offenses) Chapter and added an article to the Code of Criminal penal “new” code enacted in effective Leg., Procedure. Acts 64th Ch. January 1974, among (H.B. changes other No. “Rape Included was the separate isolated in (Evidence Law,” § statutes the Shield of Previous “rape” several Conduct), offenses denounced in former Sexual in which efforts were (Tex.Cr. 5.Brashears 461 S.W.2d 122 (Tex.Cr.App.1973). 500 S.W.2d 165 The defen- App.1970), involved a situation in which a chaste plea guilty dant was convicted on his to statu- year “placed sixteen old victim tory rape, herself in being a com the victim a fifteen promising position which facilitated the female. He contended the trial court erred in only because of overruling threats to take the life of showing her his motion for new trial on a companion.'' [male] 126. Defendant that the victim was married at the time of the attempt could not and did not to avail himself Opinion approved offense. The Commissioner’s proviso by showing article 1183 unchaste stipulated plea the Court held the evidence character; rather, alia, complained, and, therefore, inter raised no issue of consent unchas- jury charge presented tity on instructions is not a and in event "sex within statutory rape both solely marriage and "consent obtained does not render female un- by the use of Id. at thrcats[.]” In the chaste.” overruling ground aside, pertain course of ing Wright of error under article 1183 cases where charge, Judge point the late Morrison consent of an adult woman is at the Court ed out that "the evidence does not given raise the issue seems to have defendant rather wide lati unchastity,” portion charge attacking "the credibility tude in See, her and the like. which mentioned e.g., Campbell threats submitted the of threats as the means Tyler consent was 145 Tex. secured, by 315, rape not as the means which the was Cr.R. (Tex.Cr.App.1943). 167 S.W.2d 755 effected;" cf., remarking State, irrelevantly 75, e.g., that "[u]ncha- But Hindman v. consent,” sity 182, 185, (1948) (rules is no defense when there is no 211 S.W.2d re concluded: garding rape by force and threats where consent applicable statutory rape; is at "... issue not Consent secured of means of threats is 1183, consent); complete fense supra. is 'consent' under Art. or without There is 26, charge, no Fletcher v. error in the Tex.Cr.R. 147 S.W.2d court’s as threats were issue, 233, (1941) (fact of submitted as intercourse with fe of consent [cita- rape regardless male tions under 18 was omitted].” of whether Id., thereto). she resisted or consented 123-124. (Tex.Cr. Esquivel In v. 506 S.W.2d 613 pertinent § provided: 6. As 21.09 App.1974), "rape by the conviction was for force "(a) person commits an offense if he has Id., and threats." at 615. The defendant com sexual intercourse with a female not wife his plained he should have prove been allowed to younger years. and she is than 17 prior victim many had "sexual relations with (b) It is a defense to under this person men and awas of loose morals who section that the female was at the time of the probably would not resist her attackers.”' The had, alleged years offense 14 or older and through Court Commissioner Cornelius consid offense, prior to the time of the en- complaint justice.” ered his “in the interest of gaged promiscuously in sexual intercourse.” Id., at 615-616. The contention itself and the Chapter "any In 21 “sexual intercourse” means fact that the of female is nowhere men penetration organ by of the female sex the male signal tioned in the that the Court 21.01(3). organ.” sex addressing evidentiary matter where con 1975, 342, Leg., p. Acts 64th Ch. sent of an adult woman is at rather than a 1, 1975, effective amended subsection purported proviso defense under the in article (b) by adding "or deviate sexual intercourse.” 1183; the cases he cites further demonstrate the point. (Enticing 7. Former article 535b a child im- Finally, by Presiding Judge purposes), the case identified moral as amended Acts C.S., actually Murphee Onion Leg., p. prohibiting as "Lewis” is v. 51st 1st Ch.

child, designed protect. V.T.C.A. Code, 21.09, victims under procedure admitting makes regulate made to engaged in of, previously have not specific opinion evi- 17 who of instances evidence to, inter- sexual sexual or deviate reputation pertaining promiscuous dence and evidence 14, regard- of an of non- and those victims “sexual conduct” adult victim course conduct, through promiscuous §§ 21.02 sexual consensual offenses under less of 21.05, i.e., to sexu- rape, aggravated rape, legally incapable giving sexual of Thus, legally abuse, they are not aggravated abuse. Sub- al intercourse. sexual (d) undoing and can- specifically responsible disclaimed for their own section rights accomplice a matter of any limiting effect on witnesses as certain not be parties, including germane as here: or fact.” law right produce “... of the accused to 746, at 753 Hernandez v. 651 S.W.2d promiscuous conduct of evidence sexual Concurring (Tex.Cr.App.1983) (Opinion old or as a defense a child older adopted Opinion the Court Judgment, as child, sexual abuse of Leave Motion for Re- on Motion for to File indecency with a If child. evidence hearing, at admitted, sexual conduct is jury court shall instruct the as Only three courts of considered

purpose to its limit- case, evidence and as §of 21.09 application to facts (Tex use.” ed viz: Diaz PDR; 1982),No Jasso .App. Corpus Christi In 1983the section renumbered — (Tex.App.—San to 977, 5315, Leg., § 4 Acts 68th Ch. An 1985), PDR; (H.B. No nio Moore 2008), later repealed Tex.R.Cr. S.W.2d Evid. Evidence Previous Sexual Con — Houston facts are No PDR. The results on different modified, duct; (d), former subsection (e). somewhat mixed. generally now Boutwell (Tex.Cr.App.1985); Allen Diaz, supra, rejected a con- the court (Tex.Cr. ff trial accused tention that the court denied (Clinton, J., App.1985) dissenting). right by precluding him to confrontation reasonably diligent far as research re- So making any reference to veals, the did not direct- Court have occasion victim of the thirteen conduct ly continuing viability to address of the rule saying: behavior rape, “Promiscuous sexual “previous un- under former 1183 that statutory rape is no of the victim defense character” is a in “consent chaste younger.” female is when the discussing ante. cases.” See While is- required corroboration a child of sue of years in in prescribed eleven circumstances court, correctly believing supra, The Jasso 38.07, V.A.C.C.P., in 1975 Article as enacted intercourse prior that one instance of sexual 1983, however, (even in did and modified Court year accused victim with opine: unchaste) though might does render her prosecutrix promiscuity, “... in this case establish determined not Cloninger Edworthy v. among class that some nor was those of victims neither State 4, controls, ante, statutes, viz: denouncing like those both cited at note anus, touching "any of the any person with from induc- contact” means "lascivious intent” breast, any any part genitals ing place to of another a child under fourteen into or gratify engage person deviate or "sod- intent to or sexual in sexual intercourse arouse 21.01(2). "fondling parts,” omy” genital any person.” § or sexual or desire of (Sexual Child). 21.09(b) provides "promiscuity § § 21.10 de- reformed into Abuse a Just as ante, Child, § Rape a 21.10 fondling so (Handling fense” article 535d or Former terms, 21.11(b) § in and parts), provides a defense like added Acts child’s sexual as C.S., 12, 52, years or older Leg., prescribes a defense that the 14 p. 51st 1st Ch. became Child); previously engaged promiscuously in part (Indecency § subsec- child had of 21.11 with a intercourse," (a)(1) inter- person "deviate sexual it an "en- "sexual tion makes offense if "sexual gages contact child.” "Sexual course” or contact.” in sexual with the neously evidence, entered into the the court properly appellant’s requested denied the “... statutory rape Both involved offenses charge.” Ibid. predecessor under provided statutes which a defense to the crime existed if it was II shown in consent cases that the minor We Legislature attribute woman previous was not of chaste charac- knowledge, understanding appreciation and ter. only development of not its own of the statu- heretofore, pointed As legisla- out tory 21.09, through § laws from article 1183 in § ture when it enacted 21.09 elimi- judicial but also authoritative construc- nated the defense of unchaste charac- tion Presump- of those laws this Court. replaced ter requiring and it with one tively lights in those de- showing promiscuous sexual conduct.” signed, crafted and enacted Acts 68th Id., 699 S.W.2d at 660. (H.B. 2008), Leg., Ch. effective Moore, A similar raised here, germane 1983. As supra, by requesting charge defendant on primary purpose legislation is ex- 21.09(b), promiscuity § the defense of pressed caption, the first of its based an admission the 16 old victim relating “An Act to revision of the crimi- of one other act of sexual intercourse and relating nal law rape, to the offense of defensive testimony prom about her aggravated rape, rape of a sexual iscuity. The rightly Houston Court abuse, aggravated abuse, and sexual read decisions under former article child; redefining abuse of those offenses “prior promiscuous hold that conduct revising assaultive and the ele- offenses statutory rape only is a when ments those offenses[.]” case,” citing Wright consent is an issue in the requisites Ibid. Thus accordance with Esquivel, expressed both III, prescribed § by Article Constitution legislature view that “the did not intend to Texas, members of the and of change requirement they recodi public given were notice in a manner penal fied the code in 1974.” intended for them to understand that Then, quoting passage after public policy concept core at work was to State, supra, Hernandez v. the court conclud regard the nature of sexual offenses as es- ed: sentially person on assaults of the vic- “... All victims under 14 and un- victims tim.8 der 17 who previously engaged have not promiscuous sexual or deviate sexual inter- legally factually course cannot implement To concept the new “assaultive” to sexual intercourse. For this reason the Legislature repealed former 21.02 apply. Only defense does not Child) (Rape), (Rape 21.09 21.10 victims above the (Sexual Child) replaced Abuse of a them may legally consent. The de- (Sexual Assault). §with It left in pertains only only fense to them and be- Child).9 place (Indecency with a Not ability Therefore, cause of this to consent. (a)(2)(A) 22.011, does subsection de- when consent is issue evidence of mentioning nounce of a child without promiscuity is immaterial.” (d)(1) “consent,” provides but also subsection issue, however; Ibid. Consent was never in prior promiscuous a defense of sexual con- the child resisted defendant “choked duct where the child is (e) her,” older, her and kill provides threatened to so even and subsection an affirma- though prior promiscuity evidence of “erro- tive defense where the actor is not more See, State, e.g., (Tex.App.— 804 S.W.2d 698 S.W.2d Hernandez 1991), (Tex.App. 1985) (before 1, 1983, PDR [14th] Corpus Christi — Houston (victim longer refused quired in sexual assault no re vagina penetration of with hand with intent to "resist;” emphasis to now is on actor’s gratify indecency was arouse or child; desire with resistance); compulsion rather than ac victim's eliminated, specific thereafter with intent cord: Bannach v. 704 S.W.2d at 332-333 assault); same act became sexual but see (T 1986), ex.App.— Corpus Christi No PDR. question pro 9. That would raise the of which See, scription applies given e.g., in a case. Hone 22.011(a)(2) certain defines

“... Section as offenses. with a child sexual contacts than the victim—both than two older statutory rape. irrelevant Consent is about “consent.”10 also silent 22.011(d) refer to consent. does not Section had Boulding the defendant decided We B ap- promiscuity demonstrated directly with the this Court dealt complainant Before proved the plied when he concept of new prom- of consent under the engaged and had fourteen old offense, offense,” at least rape being an “assaultive [foot- iscuously in sex before the appeals examined the four courts of Although constitutional our omitted]. note i.e., Boutwell, 754 S.W.2d Hernandez contrary our analysis 1988), (Tex.App. [14th] 324-326 agreed promiscuity issue analysis of the — Houston granted; PDR Golden v. 762 S.W.2d Appeals’ Bout- of Criminal with the Court 1988), (Tex.App. Therefore, Bout- analysis. we follow well — Texarkana refused; case, the instant Pawson PDR analysis Boulding and our well (Tex.App. No. 2-89-007- State Worth section 22.- promiscuity defense. We hold — Fort 31, 1990), CR, January grant PDR delivered 011(d) require a does defendant (Tex ed; Lewis v. 709 S.W.2d 734 he can assert raise before refused; Antonio PDR .App. simply promiscuity Consent — San defense. 748, at 750 also Chreene v. statutory rape. Under irrelevant 1985), PDR refused. (Tex.App. statute, promis- could use a defendant — Texarkana Hernandez, also authorities collated capable of con- cuity prove a child was S.W.2d, indicating (mostly n. 1 theory the proceeded if on the sent availability promiscuity defense without 22.011(d) In section child had consented. mentioning prerequisite). “consent” acquittal of legislature has mandated statutory rape charges when the child is Hernandez, supra, discussing sev after and has under seventeen over fourteen and including opinion in eral related cases its own of- before the indicted been (Tex. Boulding v. fense.” (mere 1985) App. evidence [14th] — Houston statutory purpose of the newer defense), “... The re alone raises prevent imposition was to statute per grounds and remanded versed on other age of seventeen upon females under the Opinion in Concurring Boutwell v. experienced presumably more by older and (Tex.Cr.App.1985), at 167-169 males, omitted]_ Neverthe- (Tex.Cr.App.1986), [footnote the court less, statutory scheme does not the newer declared: 338, 340, relating dif- promiscuity defenses and Whittington about 1989) the matter of (aggravated defenses to ferential affirmative — Houston par- in "sexual assaultive child "includes all elements” of "consent” sexual assault of offenses”— 22.06(1), indecency ticularly left intact with child since it "lesser included offense” genitals”), respect in nonsexual (by "touching” "any part provides with to "consent" eight vagina penetrated where defendant case assaultive offenses: finger). or the actor's victim's effective consent old with his "The victim consented that the reasonable belief pretermitting mention of "con- 10. Likewise a defense to actor’s conduct is Child); (Indecency like- arc 21.11 sent” (Assault), (Aggravat- 22.02 22.01 under Section Child) (Rape 21.10 §§ wise former 21.09 Conduct) (Reckless Assault), of this ed Child). (Sexual provided a de- All Abuse if: code and an affirmative fense for or inflict did not threaten the conduct more than differential of not defense for bodily injury;” serious (c)(2) years, alone conditioned two provi "special commentary explains force, duress, or a threat "did not use the actor is neces belief of consent for reasonable sion” offense.” against victim at the time of the the the not an element of sary "consent is because Tanksley generally Legisla- offenses[.]” assaultive pause ponder what the must One (Tex.App.— at 196-197 reticent had in mind when it remained ture

Pawson, course, 22.011(a)(2) § held protect sexually require prerequisite “does not ‘promiscuous’ girls consent as a unless raising Slip the allege rape defense[.]” the State can forcible opinion at 4. prove beyond indictment and a reasonable girl doubt the did consent." activity involved all Lewis sorts of sexual Id., between father and his fifteen 754 S.W.2d at 325-327.11 daughter; denied his claimed defense under Golden examined Hernandez and in es- 22.011(d)(1), § perfected excep- a bill of disagreed sence with its conclusion because tion previous promiscuous to show similar “contrary provides to other case law which him, engaging behavior with her prior promiscuity only is defense sexual conduct with four men at the same issue,” citing dissenting is an the However, time. because nev- defendant “has opinion in Hernandez and other cases but argued complainant er that the consented to one decided under statutes.12 The issue, having the sexual assault” at instead court did not Golden reach the howev- denied sexual contact with her and claimed er; there was no evidence of question, an alibi for the occasion in Id., activity in the record. 762 S.W.2d at proffered evidence was “irrelevant and not 631. admissible.” at S.W.2d 1983), explanation, Austin prac- No PDR. That [that stated which is also recited in the course, Hence, commentary preceded concept tice 21.09]. the more recent driv section ing consent is not an issue when the indictment the to redefine certain sexual 22.011(a)(2). alleges an under section ante, offenses as "assaultive offenses.” See at offense The Texas Penal Code does not state the child’s 41. consent is a defense. Sex with the child anis aggravated when it came to offense even if the child consented to the rela- § ag assault 22.021 the described tions.” gravating factors in terms of violent threat Id., 754 S.W.2d at 326. ening per conduct toward the victim or another son, being younger or the victim than fourteen 12. The cited case decided latest this Court is (a)(2); age, prescribed by subsection (Tex.Cr.App.1985), Allen v. 700 S.W.2d 924 22.011(b) reference to circumstances under involving right of a defendant to introduce which it is "without the consent of the other activity” evidence of "sexual of a victim (c); person,” subsection and also both withdrew age seventeen on three asserted theories defense affirmative defense 22.065; (later under former now Tex. elsewhere, (d). allowed subsection See Johnson 926), "rape R.Cr.Evid. 412. at shield Thus, (Tex.App.— at 566-567 present law." neither former 21.09 nor 1990), Houston implicated. [14th] PDR refused. 22.011 is The other cases cited: explains purpose 11.The court Hernandez Esquivel (Tex.Cr.App. S.W.2d 613 the statute and rationale of the [14th] Houston 1974); ante, 5; see n. Court, viz: Lewis v. — San refused, filed; 1986), untimely Antonio PDR Bar "[The] State of Texas Committee on 44; post, at see Code, Revision of the Penal A New Penal Code (Tex.App.— Moore v. S.W.2d report for Texas 15 ... states that this ratio- PDR; ante, Houston No purpose rape [the nale of the newer statute prevent imposition upon was to females age presumably of seventeen older and Antonio 13. In its treatment of San experienced supported 'incap- Court, more males] prior opinions by Court cited two offenses, able of consent’ sexual proposition "[u]nchastity is a issue," new 'innovations’ in the statute are consistent case when consent is an (Tex.Cr. preventing imposition by with the rationale of Johnson v. App.1982), Wright report 'uni- older males. Id. refers to a (Tex.Cr.App. interpret We form of consent.’ this as which irrelevant. More below consent is attempted In Johnson v. State the offense was however, importantly, plain meaning woman, twenty-six year old married complainant's promiscuity statute is that a be- Wright which and we too cited to The com- indicted it will be recalled dealt with former offense defense. fore accompanying Proposed expressly provided mittee comments de- for the ante, legislature passed that the in 1973 fense in "consent cases.” See Code however, argues, that “if consent is irrele- vant, promiscuity the evidence is irrelevant probation Chreene was a revocation PDR, 4-5; statutory rape in at cases.” case, being rape the violation Brief, Alluding ruling at 4-5. to the proof showing “sexual relations appeals that 608 does court of Tex.R.Cr.Evid. stepdaughter ... on occa- several apply not offer because “did prior birthdayf.]” sions to her seventeenth proof promiscuity to attack the victim’s S.W.2d, response at 750. In to the con- asserts, credibility,” the State “The record is sup- tention that evidence was insufficient to contrary,” and then into its launches revocation, port the Texarkana Court first refutation, viz: paraphrased promiscuity viz: 22.011(a)(2) require does not “Section “Proof that the child at the time raised, promiscuity consent to he thus evi- older, the offense fourteen dence is immaterial irrelevant. What prior and that to the time of the offense possible weight if could such evidence have promiscuous, she had been was a defense required. consent is not (Ver- under Tex.Penal Code Ann. 1974) Moreover, proffered evidence did not (repealed non ais defense n * * n ” promiscuity. constitute to offenses under Tex.Penal Code Ann. 22.011(a)(2) (Vernon Supp.1984).” Id., major in at 5. The flaw that formulation however, Ultimately, assuming exposed by the declaration of on “evi- this Court original dence of the sexual with the in acts other males submission Boutwell v. su- S.W.2d, constitute meaning pra, within the viz: statute, there is no evidence that the acts “... [B]y providing ‘promiscuity’ de- prior occurred to this offense.” Without fense, pronounced has evidence, therefore, probation prop- such complaining prior witnesses’ sexual con- erly proof probationer revoked on “had duct to to a be relevant material defensive repeatedly statute, committed the offense of [emphasis original]” in during period child probation.” of his Id. hand, appellant essentially On the other says “if had intended C epnsent] qualification [requiring such it the 1974 legislatively With demise of the statute,” would have so stated in the expressed condition in former article 1183 urges reasoning that “the and rationale of “previous that the unchaste char- opinion the Hernandez is determinative cases,” acter” in is available “consent what do present Appel- issues case.” parties in this cause make of the subse- Brief, at 4.14 lant’s quent legislatively developed defense of any expressed conduct sans Ill conditioning availability only in “consent cases,” §in first 21.09 and now in 22.011? plainly provides The statute as a defense reviewing,

The whose PDR State we are qualification without condition whatso- says in agrees both its PDR that it and brief ever—other than that the child fourteen holding by with the the court of Hernandez, “engaged promiscuous- or older cause and [22.011(a)(2) S.W.2d, ly in conduct described in ... ]” that “consent was irrelevant statutory rape.” position From that to the time of the offense. exposition certainly 14. In stark the full rele- true that the contrast to It is court Hernandez Hernandez, supra, vant an ear- considerations consequences lamented the of its construction of lier Houston Court in However, 22.011(d). indulge it also refused to State, supra, Moore v. construed former activism," "judicial light repealed decided cases Nevertheless, usurp "... this court cannot Recognizing acknowledging their an- legislature to correct even the functions of tiquity, say, the Moore court was content legislature pro- most lamentable errors. “However, legislature we believe the did not complete the victim a vided change requirement intend to [that defense." they penal be an issue] codified the code in at 326. S.W.2d, 1974."

Now, years from “carnal after all those knowledge” through promiscuity, Legis- requires “a reasonable doubt on lature has recanted the effective acquitted.” that the defendant be V.T.C.A. Leg.Ch. 73rd 2.03(d); 1994. Acts Code, § see Ormand v. (S.B.1067). 1.01, (Tex.App. Corpus S.W.2d — 1985) PDR; Christi No Walker v. 1987) (Tex.App. Tyler — PDR, among No other similar iden decisions Hernandez, S.W.2d,

tified in at 1; proposed charges preter- n. mitting any issue of “consent” in McCormick RESTAURANTS, GENERAL MILLS Blackwell, & Texas Criminal Forms and INC., Appellant, 96.14, Texas Trial Manual Practice 481- 2 Texas Annotated Penal Stat (Branch’s 1974) 21.09, utes Ed. 3rd CLEMONS, Johnny Appellee.

No. 13-91-427-CV. B Texas, Appeals of Court of objective Given that the traditional societal Corpus Christi. (arbitrarily protect is to children below an 25, 1993. Feb. drawn) personal indis- of consent imposition presum- cretion older actors,

ably sexually experienced more more

lately germane society has evinced stat- recognize willingness

utes and acknowl- its

edge reality of altered sexual mores

young Accordingly, persons. legislatures withdrawing protection measures some

previously afforded under the criminal laws. jurisdiction

Similarly Legisla- in this changing

ture considered societal must have concerning activity

values and con- sexual longer compelling in no

cluded there sexually protective

need measures for (to degree

experienced promiscu- child older,

ity) and less for the fourteen need younger child than

sexually inexperienced activity is with

seventeen whose (and

actor than two older not more

indecency who did not use du- child).

ress, against force or a threat 21.11(b) (c) Child); (Indecency awith

22.011(c) (d) (Sexual Assault).15 holds, “If the

A axiom useful said, it have said

did not mean what it should

so.” Critique Statutory Rights Rape: e.g., Vaught Henning, A Feminist generally, & Admis-

15. See (1984); compare Analysis, L.Rev. 387 63 Texas sibility Rape Victims Prior Sexual Conduct County, Superior Court Sonoma Contemporary Analysis, M. v. Review Michael Texas: 67 L.Ed.2d 437 (compare U.S. 101 S.Ct. St.Mary's law common L.J. Olsen, (1981). 928); law” with "current 910-911

Case Details

Case Name: Pawson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 27, 1993

Citation: 865 S.W.2d 36

Docket Number: 367-90

Court Abbreviation: Tex. Crim. App.