Boutwell v. State

• Decision Date: 24 April 1985
• Docket Number: Nos. 711-83,s. 711-83
• Citation: 719 S.W.2d 164
• Parties: Lester BOUTWELL, Appellant, v. The STATE of Texas, Appellee. to 713-83.
• Court: Texas Court of Criminal Appeals

Page 164

719 S.W.2d 164

Lester BOUTWELL, Appellant, v. The STATE of Texas, Appellee.

Nos. 711-83 to 713-83.

Court of Criminal Appeals of Texas En Banc.

April 24, 1985.

Rehearing Denied Sept. 24, 1986.

Dane Everton, Temple, Malcom C. Smith, Austin, for appellant.

Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Alfred Walker, First Ass't, Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

A jury convicted appellant in our Cause No. 711-83 [hereafter "711"] of the offense of sexual abuse of a child and assessed his punishment at 20 years confinement. This conviction was affirmed by the court of appeals in Boutwell v. State, 653 S.W.2d 100 (Tex.Ct.App.--Austin 1983). Appellant was also convicted pursuant to a plea bargain of indecency with a child and assessed a seven year sentence in our Cause No. 712-83 [hereafter "712"]. This conviction was affirmed in Boutwell v. State, 653 S.W.2d 105 (Tex.Ct.App.--Austin, 1983). Finally, in our Cause No. 713-83 [hereafter "713"], appellant was convicted of sexual abuse of a child pursuant to a plea bargain and was assessed a 20 year sentence. This conviction was also affirmed. Boutwell v. State, 653 S.W.2d 108 (Tex.Ct.App.--Austin, 1983). The Court granted appellant's petitions for discretionary review in each cause. ¹

711

The evidence established that on January 4, 1979, 15 year old junior high student and complainant herein, M.B., ran away from school around noon with a friend, 14 year old T.M. ² It was raining and the boys decided to go to the apartment of P.J. Lewis for shelter. Louis Herry, who was living with P.J. Lewis, washed the boys clothes for them while Lewis went out to lunch with appellant who had arrived in the interim.

When Lewis returned, he came back into the house and told the boys appellant wanted to talk to them. They agreed to go with appellant and Herry to appellant's house. All witnesses referred to appellant as "Lester" throughout the trial, and each identified a photograph of appellant's house offered by the State.

At appellant's house, everyone but appellant had alcoholic drinks. At some point appellant asked if everyone wanted to "take some pictures." ³ Appellant took pictures of Herry and the two boys standing nude in front of a black cloth in the living room. Eventually everyone went into appellant's bedroom and more photographs were taken of appellant, Herry, M.B. and T.M. having oral intercourse with one another in various combinations. ⁴ At some point appellant apparently took T.M. alone into his bedroom and gave him several valiums. ⁵ After this photo session, appellant took Herry and the boys back to P.J. Lewis' apartment at approximately 8:00 p.m.

Out of the presence of the jury, appellant was permitted to adduce testimony of P.J. Lewis regarding the complainant, M.B.'s "prior promiscuity." ⁶ P.J. Lewis testified that on January 3, 1979, the day before the offense, he, M.B. and Louis Herry had oral and anal intercourse with one another at appellant's house; later, these three returned to Lewis' house and "the same thing happened again."

Though the "promiscuity" defense was not available to appellant under the statute because he and the complainant were of the same sex, [see n. 6, ante.], it was appellant's contention both in the trial court and before the court of appeals that the nonavailability of the defense unconstitutionally discriminated against him on the basis of "sex" in violation of the Federal Equal Protection Clause and the State Equal Rights Amendment. ⁷ The court of appeals held it was unnecessary to resolve the constitutional question raised for the reason that the evidence offered by appellant upon the defensive issue did not establish "promiscuity." ⁸

In his petition for discretionary review, appellant contends in two grounds for review that the court of appeals erred in upholding the trial court's refusal to submit the promiscuity issue to the jury as a question of fact. He first argues the court of appeals erred in the premise that "promiscuity," as a matter of law, connotes something more than engaging in several acts of sexual conduct with multiple partners over a twenty four hour period, [see n. 8, ante ] and the concomitant that such a showing is legally insufficient to require submission of the evidence to the jury.

Appellant also argues the court of appeals' reference to V.T.C.A. Penal Code, § 21.13 (sometimes called the "rape shield law" and now incorporated into V.T.C.A. Penal Code, § 22.065) was improper for the reasons that the trial court did not have the discretion to exclude testimony under § 21.13 because that section, by its own terms, does not apply to evidence of the complainant's "promiscuity" offered by one accused of sexual abuse of a child. ⁹

In these two respects, we agree with appellant.

Assuming arguendo that appellant was entitled to employ the promiscuity defense in his prosecution, it cannot be gainsaid that his evidence did not raise a fair issue of M.B.'s "promiscuity." Thus assuming M.B.'s promiscuity could be shown to be a material issue in the case, appellant would be entitled to present his evidence on that issue to the jury. The court of appeals was not called upon to determine whether the evidence offered by appellant was sufficient to establish prior promiscuity on the part of M.B. Moreover, we find no express, implied or independent justification for the court of appeals' conclusion that "promiscuity" requires, as a matter of law, more than a twenty four hour span of several acts of sexual conduct with a variety of partners.

Furthermore, we agree with appellant that the court of appeals erred in adverting to § 21.13 in the context of this case. By its own terms, § 21.13 applies to nonconsensual offenses which are accomplished through some degree of force, threats or fraud. Under such circumstances, without extenuation, the victim's extraneous sexual conduct is utterly irrelevant. Thus, § 21.13 prohibits admission of such presumptively irrelevant evidence, while providing a procedure whereby the trial court may nevertheless admit it upon the accused's showing that it is probative of a material issue under the unique facts of the case, and provided its inflammatory or prejudicial nature does not outweigh its probative value.

In contrast, under §§ 21.09 and 21.10, by providing the "promiscuity" defense, the Legislature has pronounced the complaining witnesses' prior extraneous sexual conduct to be relevant to a material defensive issue by statute. Thus, the defendant is entitled to have any evidence which is relevant to the issue of "promiscuity" submitted to the jury provided he has otherwise shown himself entitled to take advantage of the defense under the statute. The meaning of "promiscuity" for purposes under §§ 21.09 and 21.10 is wholly discrete from reasons for admission of prior sexual conduct under § 21.13 and little or no aid may be gleaned from the latter in analyzing the former.

Accordingly, the court of appeals' holding regarding the definition of and evidentiary quantum necessary to establish "promiscuity," under §§ 21.09 and 21.10, as was in effect for our purposes here, is disapproved and overruled.

Appellant's final argument under his first and second grounds for review is that the § 21.10(b) promiscuity defense should be construed to permit him to take advantage of it, notwithstanding the fact that he and the complainant, M.B., are not of the opposite sex as the statute requires. Otherwise, appellant contends, the statute is unconstitutional because it arbitrarily and capriciously discriminates against him on the basis of "sex" and therefore denies him equal protection of the laws. He claims that if he had been a female and committed the very same acts of which he was accused, he would have been entitled to raise and submit the "promiscuity" defense in the instant prosecution.

But clearly, a female defendant situated similarly to appellant--that is, a female who had engaged in deviate sexual intercourse with a child 14 years or older who was of the same sex--would likewise be denied the "promiscuity" defense under § 21.10. Thus, appellant's reasoning proceeds upon a fallacy of amphiboly: his complaint is not that he is discriminated against on the basis of "sex" in the sense of "gender;" but rather, that his "sex" act is entitled to protection equal to that given heterosexual conduct under the law as stated in § 21.10(b).

We know of no authority which holds that homosexual conduct is a constitutionally protected activity under the Equal Protection Clause or the State Equal Rights Amendment and appellant has cited none. And in Texas, in the form of V.T.C.A. Penal Code, § 21.06, our Legislature has declared such conduct to constitute a class C misdemeanor, irrespective of the ages or promiscuity of the participants.

In sum, whatever constitutional infirmities may infect our statutory proscriptions against homosexual conduct in the form of either § 21.06, supra, or the unavailability of the "promiscuity" defense for such conduct in § 21.10(b), appellant has not effectively advanced any here. We therefore hold the court of appeals did not err in upholding the trial court's refusal to submit the "promiscuity" defense to the jury over the objection of appellant.

In grounds for review four through ten, appellant contends the court of appeals erred in upholding the trial court's admission of extraneous offense evidence over his objection.

After the State rested its case in chief, appellant presented two witnesses, each of whom testified to having seen and talked to him on the afternoon of the alleged offense in Killeen. ¹⁰ Helga Reap testified she saw appellant, whom she had known two or three years, at J.B. Novelties where she worked at approximately 3:00 p.m. on January 4, 1979. She remembered the date because a...