Allen v. State

• Decision Date: 04 December 1985
• Docket Number: No. 271-84,271-84
• Parties: Virgil Dean ALLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 924

700 S.W.2d 924

Virgil Dean ALLEN, Appellant, v. The STATE of Texas, Appellee.

No. 271-84.

Court of Criminal Appeals of Texas,

En banc.

Dec. 4, 1985.

Bob Gilbert, McKinney, Danny D. Burns (court appointed), John H. Read, III, Grand Prairie, for appellant.

H. Ownby, Dist. Atty. and Roger V. Dickey, Randall A. Blake and Amanda Green, Asst. Dist. Attys., McKinney, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of aggravated rape. The jury assessed his punishment at 30 years' imprisonment.

On appeal appellant advanced five grounds of error. The first three grounds of error read:

"The trial court erred in not allowing testimony of the prosecutrix's prior sexual activity to refute the misleading testimony elicited by the State.

"The trial court erred in excluding evidence of the prosecutrix's prior sexual activity which evidence was material to the defensive theory of consent.

"The trial court erred in limiting appellant's right to fully cross-examine the prosecutrix on her prior sexual activity after she left a false impression with the jury."

The Dallas Court of Appeals affirmed the conviction. Allen v. State, 666 S.W.2d 245 (Tex.App.-Dallas 1984). The Court of Appeals held that under V.T.C.A., Penal Code, § 21.13, evidence of prior sexual activity was not evidence of the prosecutrix's consent to the relationship with appellant, citing Young v. State, 547 S.W.2d 23, 25 (Tex.Cr.App.1977); Wilson v. State, 548 S.W.2d 51, 52 (Tex.Cr.App.1977). Further, the Court of Appeals found the evidence was properly excluded when offered for the purpose of impeaching the prosecutrix's credibility. ¹

Three of appellant's grounds of review in his petition for discretionary review correspond to aforesaid grounds of error. Concluding that the Court of Appeals reached the correct result as to inadmissibility of the evidence on the issue of consent, we granted appellant's said petition to determine the correctness of the Court of Appeals' holding as to inadmissibility of the evidence for the purpose of impeaching the credibility of the prosecutrix. Thus, we shall consider appellant's first and third grounds of review.

Prior to trial the court granted the State's motion in limine to prohibit the appellant from inquiring into the prosecutrix's sexual conduct other than that involved in the alleged offense without an in-camera hearing as contemplated by V.T.C.A., Penal Code, § 21.13, then in effect.

The prosecutrix was the State's first witness. The 17-year-old prosecutrix testified that about 9:40 p.m. on the night of February 1, 1982, she left her place of employment, a department store in the Collin Creek Mall in Plano. As she reached her car in the mall parking lot, appellant drove up in a pickup truck. She did not know him. At gunpoint he abducted the prosecutrix and drove to a spot in rural Collin County, forcing her to remove her clothing along the way. There the prosecutrix related the appellant raped ² her and threatened to "find her" if she told anyone what had happened. He drove her back to the mall parking lot, where her father was waiting for her near her car. Appellant released the prosecutrix nearby. She stated later that night she was examined at the hospital and made a report to the police.

Early on, the prosecutrix testified on direct examination, that appellant told her he would take her home after she made love to him. She refused and asked to be taken home because her parents would worry if she wasn't home by 10 p.m. He suggested "Q Did he ask you any question after that, after he suggested you tell your parents you had gone for a drink?

she tell her parents she had gone for a drink with friends. She told him she was under age and couldn't drink. The record then reflects:

"A I don't recall.

"Q "Did he say anything else to you at that point?

"A Yes, he did.

"Q What else did he say?

"A He asked me if I was a virgin.

"Q Did you answer his question?

"A Yes, I did.

"Q What did you tell him?

"A I told him, No.

"Q Why did you tell him that?

"A Because I thought if I told him, Yes, I was, that he would certainly want more.

"Q Were you frightened at that point?

"A Yes, I was.

"Q What was he doing with the gun as you were driving north on Parker?

"A He had it pointed toward me."

Shortly after cross-examination commenced the court conducted an in-camera hearing as contemplated by V.T.C.A., Penal Code, § 21.13(b). At such hearing the prosecutrix testified she was not a virgin at the time of the alleged offense, that she had an older boyfriend (naming him) who attended Baylor University with whom she had had sexual relations, and they last had sexual intercourse approximately two weeks before the alleged offense. The prosecutrix related after the alleged offense she told the examining doctor she was not a virgin before the offense, but she had not yet told her father, who was a strong disciplinarian. At the conclusion of the hearing, the court denied appellant the opportunity to elicit from the prosecutrix in the jury's presence the foregoing evidence. From this action of the court springs the grounds of review.

The State in its case-in-chief also called the prosecutrix's father, who testified as to his actions on the night in question. From his testimony it is clear he was a strong disciplinarian. The State further offered evidence that when appellant was arrested the next day a .22 caliber revolver was found in his pickup truck. Appellant's extrajudicial confession was introduced in which he related that he ordered the prosecutrix, whom he did not know, to get into his truck as he "had a gun," and that she did what he asked of her because she was afraid of guns. He could not remember whether "we completed sexual intercourse or not."

Appellant offered evidence from one witness that he and appellant each had 12 or 13 beers between noon and 6 p.m. on the day in question. Appellant's wife testified when she saw him at 7:30 p.m. he was intoxicated and she would not go to a club in Dallas with him for that reason. According to appellant's testimony, he had had about 22 beers and purchased another six-pack sometime before the alleged offense. He testified the prosecutrix voluntarily entered his truck after he offered her a drink. He stated when the prosecutrix got in the truck his gun and holster were on the seat where it had been since the previous weekend, when he had been hunting, that he showed it to her and placed it under the seat. He claimed he was drunk, and did not achieve an erection and the sexual act was not completed but that the prosecutrix had consented to sexual advances. Appellant drove her back to the mall parking lot where he saw a man standing by the prosecutrix's car and she asked him to suggest some excuse to give her father for being out with him (appellant).

Appellant related that during their conversations that night the prosecutrix told him she had a boyfriend who went to Baylor University. He did not relate whether there was any discussion about whether the prosecutrix was a virgin. No issue was made of the fact.

The appellant called the examining physician, Dr. Ivan Rovner, who testified he Appellant called a co-worker of the prosecutrix who testified she had recently attended a graduation party at a hotel given by the prosecutrix and another girl, that the prosecutrix was there with her boyfriend (giving his name) and the prosecutrix was drinking.

found no evidence of actual penetration. He found no evidence of trauma, bruising or of lacerations. Further, appellant elicited from the medical witness he did not find any physical evidence of any type of sexual conduct within the recent past. On cross-examination Dr. Rovner testified that it was possible for there to have been penetration of a vagina by the male sexual organ without any physical evidence being left.

From the court's action under § 21.13 following the in-camera hearing arises appellant's complaint that the prosecutrix left a false impression with the jury and he was thus unable to refute the misleading testimony elicited by the State. Appellant argues that the prosecutrix was not a virgin, had had sexual intercourse with her boyfriend, that her father was still unaware of that fact, and that this demonstrates a motive for her trial testimony. Appellant also argues that a defendant is entitled to the full confrontation and cross-examination of the witnesses against him, Sixth Amendment, United States Constitution, and Article I, § 10, Texas Constitution, and that any statute which prevents such confrontation and cross-examination must fall. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

V.T.C.A., Penal Code, § 21.13, in effect at the time of appellant's trial, ³ read:

"(a) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct may be admitted under Sections 21.02 through 21.05 of this code (rape, aggravated rape, sexual abuse, and aggravated sexual abuse) only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

"(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim's sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall...