Hernandez v. State

• Decision Date: 23 June 1993
• Docket Number: No. 853-88,853-88
• Parties: Joe Frank HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 908

861 S.W.2d 908

Joe Frank HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 853-88.

Court of Criminal Appeals of Texas En Banc.

June 23, 1993.

Rehearing Denied Sept. 22, 1993.

Scott Ramsey, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Linda A. West and Debbie Mantooth, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of sexual assault, alleged to have been committed on or about February 8, 1985. After a trial by jury, appellant was convicted as charged. He was later sentenced by the trial court to eight years confinement.

I. SUMMARY OF PERTINENT FACTS

The State's indictment alleged that appellant intentionally and knowingly caused the penetration of the vagina of the complainant, a person younger than seventeen years of age and not his spouse. Appellant sought to present evidence to raise a defense of promiscuity pursuant to V.T.C.A. Penal Code, § 22.011(d)(1). The trial court refused to admit into evidence testimony about the complainant's prior sexual relations. The trial court also refused appellant's request for a jury charge instruction on the statutory defense of promiscuity.

II. APPELLANT'S APPELLATE CLAIM

Appellant raised four points of error before the Fourteenth Court of Appeals. It sustained three of those points and reversed the cause based upon those errors. Hernandez v. State, 754 S.W.2d 321 (Tex.App.--Houston [14th Dist.] 1988). In deciding one of those points of error, the court of appeals held that § 22.011(d)(1) "does not require a defendant to raise consent before he can assert the promiscuity defense" and that "[c]onsent is simply irrelevant to statutory rape." Hernandez v. State, 754 S.W.2d at 326. We granted the State's ground for review number 1, should V.T.C.A. Penal Code, § 22.011(d)(1) (Supp.1988), be interpreted as a defense to sexual assault of a child aged fourteen to seventeen years whether or not the issue of consent was raised by the evidence.

III. MERITS OF STATE'S CLAIM

This Court has established a policy of statutory interpretation by focusing our attention upon the literal text of the statute to discern the fair objective meaning thereof. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). We focus upon the literal text because said text "is the law in the sense that it is the only thing actually adopted by the legislators ... and submitted to the Governor for ... signature[,]" and "is the only definitive evidence of what the legislators ... had in mind when the statute was enacted into law[;]" and because "the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted." [Emphasis in original.] Id. We added that a narrow exception allows for the use of extratextual factors for interpretation when the plain language of a statute would lead to absurd results or said language is not plain but rather is ambiguous. Id. The plain language of § 22.011 does not reveal any such ambiguity or absurd results with respect to the promiscuity defense; thus, the statute shall be interpreted via its plain language.

The plain language of § 22.011 provides for two general methods of committing sexual assault: 1) involving specified contacts made upon a complainant without the complainant's consent, per § 22.011(a)(1); and 2) involving specified contacts made upon a complainant who is a child (i.e. a person younger than 17 years of age who is not the spouse of the accused), per § 22.011(a)(2). The second method, i.e. per (a)(2), makes no mention whatsoever of consent; thus consent (or nonconsent) is not an element in proving the second method. The various ways of lack of consent which are detailed in § 22.011(b) are explicitly specifically applied to the first method, i.e. per (a)(1). Therefore because consent (or nonconsent) is not an element of the second method, the fact that § 22.011(d)(1), which explicitly provides for the promiscuity defense for prosecution under the second method, makes no reference to consent is not ambiguous nor does it lead to absurd results.

The plain language of § 22.011 does not lead to the absurd consequences feared by the State in which 14, 15, and 16-year-old children are singled out and "made fair game for those who would sexually assault them by making their prior sexual experiences a legal shelter...." ¹ It is quite possible to prosecute and convict someone of sexually assaulting a promiscuous 14 through 16-year-old child. The method of doing so is via method (a)(1), i.e. by alleging and proving lack of consent. If that method is alleged, obviously consent (or nonconsent) is an issue, while promiscuity, which statutorily only applies to method two, is not a defense. It is also quite possible to prosecute and convict someone of sexually assaulting a 14 through 16-year-old child who consents to the sexual contacts, specifically by prosecuting via the second method, i.e. per (a)(2); however, in such a situation, the Legislature has explicitly provided the statutory promiscuity defense of § 22.011(d)(1). As noted above, when prosecuting via the second method, i.e. per (a)(2), consent (or nonconsent) is not an element.

Turning to the instant cause, the record reflects that the State proceeded upon an indictment which alleged that appellant intentionally and knowingly caused the penetration of the vagina of the complainant, "a person younger than seventeen years of age and not his spouse...." The indictment did not in any way allege a lack of consent. Thus the State was proceeding upon a theory of guilt via method two, i.e. per § 22.011(a)(2). As stated earlier, that method does not involve consent at all. The promiscuity defense of § 22.011(d)(1), which specifically applies to that (a)(2) method of prosecution, likewise does not involve consent. Because the State chose to prosecute based upon the complainant's age (i.e. being a child) rather than upon a lack of consent, appellant was entitled to raise the promiscuity defense as is statutorily provided for in § 22.011(d)(1). ² Thus the court of appeals was correct in concluding that appellant was entitled to raise the statutory defense regardless of whether consent was contested.

Accordingly, we overrule the State's ground for review. The judgment of the court of appeals is therefore affirmed and the cause remanded to the trial court.

CLINTON, J., concurs in result.

MILLER, Judge, concurring.

I agree with Judge Overstreet's analysis in his majority opinion, and I therefore join that opinion. My purpose in writing in this cause is to note that the issue presented in this petition has been rendered moot by the legislature in its 73rd session, just recently concluded.

In this legislative session, the legislature undertook, and passed, a revision of the Texas Penal Code via Senate Bill 1067 (SB 1067). Pertinent to the cause sub judice is the revision made to § 22.011, Sexual Assault, specifically subdivision (d). Senate Bill 1067 reveals that the drafted new penal code deletes the defense to prosecution for sexual assault of a child that the child was older than 14 and had previously engaged promiscuously in sexual activity. ¹ Thus, under our new penal code, this defense will not be available to defendants, and the issue presented in this petition will not be recurring.

With these comments, I join the majority opinion.

MEYERS, J., joins this concurring opinion.

McCORMICK, Presiding Judge, dissenting.

Respectfully, I dissent. We granted the State's petition for discretionary review to determine whether, in a prosecution under V.T.C.A., Penal Code, Section 22.011(a)(2) (hereinafter referred to as "Section (a)(2)"), a defendant must claim the complainant consented as a prerequisite to raising the promiscuity defense under V.T.C.A., Penal Code, Section 22.011(d)(1) (hereinafter referred to as "Section (d)(1)").

The State charged appellant with violating V.T.C.A., Penal Code, Section 22.011(a)(2)(A), which prohibits an adult from intentionally or knowingly engaging in certain described sexual conduct with a child. The evidence in this case indicates the complainant's mother "sold" the complainant to appellant, who also "sold" the complainant to other men. Hernandez v. State, 754 S.W.2d 321, 322-23 (Tex.App.--Houston [14th Dist.] 1988). The complainant testified she "did not resist" appellant's sexual advances. Id. at 322. Appellant tried to introduce evidence at trial of the complainant's prior sexual conduct with other boys in an attempt to raise the promiscuity defense under Section (d)(1); however, the trial court refused to admit this evidence unless appellant claimed the complainant consented to the charged offense, which appellant did not do. Id. at 324.

The Court of Appeals held Section (d)(1) entitled appellant to raise the promiscuity defense without raising the issue of the complainant's consent. Id. The Court of Appeals also noted the newer statutory scheme "does not protect sexually 'promiscuous' girls unless the State can allege forcible rape in the indictment and prove beyond a reasonable doubt the girl did not consent." Id. at 326.

Appellant argues Section (d)(1) does not literally require consent as a prerequisite to raising the promiscuity defense, and I agree. However, in ascertaining the legislative intent of a statute, we are not required to apply the statute literally if that would lead to absurd consequences not possibly intended by the Legislature. See Boykin v. State, 818 S.W.2d 782, 785-86, 786 n. 4 (Tex.Cr.App.1991). Under such circumstances, we consider extratextual factors such as the legislative history of the statute and prior case law to arrive at a fair and sensible interpretation of the statute. See id.; compare State v. Oliver, 808 S.W.2d 492, 495 (Tex.Cr.App.1991).

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