Ormand v. State
| Decision Date | 30 August 1985 |
| Docket Number | No. 13-84-398-CR,13-84-398-CR |
| Parties | Ronald E. ORMAND, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Walter E. Chastain, Corpus Christi, for appellant.
Thomas L. Bridges, Dist. Atty., Sinton, for appellee.
Before NYE, C.J., and DORSEY and BENAVIDES, JJ.
Appellant was convicted of sexual assault of a child and received as punishment a $5,000 fine and ten years confinement, with the confinement being probated.
The prosecution was based on TEX.PENAL CODE ANN. § 22.011 (Vernon Supp.1985) 1. The undisputed evidence is that the appellant, a 26-year old high school coach, had sexual intercourse with M.H., a 15-year old female student. Appellant admitted having sexual intercourse with M.H. as alleged in the indictment, but asserted as his defense, in accordance with TEX.PENAL CODE ANN. 22.011(d)(1), 2 that M.H. engaged promiscuously in sexual intercourse prior to the alleged offense.
Appellant alleges two grounds of error: (1) that he made his statutory defense of prior promiscuity as a matter of law and (2) that the trial court erred in not allowing appellant to introduce evidence of the victim's sexual activity after the charged offense.
The trial was to the court, without a jury, upon stipulated evidence. After the introduction of the stipulated evidence, the State rested and the defense introduced testimony as to its defense of promiscuity of the child prior to the charged sexual assault. In the stipulated evidence and the testimony of M.H., when called by the defense, she admitted to voluntarily having sexual intercourse with four men, all 17 or 18 years old, on several occasions prior to the alleged offense. She testified that during one day, while she was at the beach, she had intercourse with two men, O.P. and S.J, with neither of whom did she have a dating relationship. Several of her sexual partners were called by the defense. The only material evidentiary disputes between M.H.'s testimony and that elicited from her sexual partners was the number of acts of intercourse with one partner (S.A.--two or four) and her denial of sexual intercourse with another, C.S., at the beach, which, if C.S. were believed, would raise the count of M.H.'s sexual partners while at the beach from two to three. She had a dating relationship with only one of her sexual partners, S.A., that lasted for about two months. All of these sexual liaisons occurred prior to the alleged offense, were consensual, and were testified to by M.H. and her sexual partners without explanation.
Section 22.011(d)(1) provides that it is a defense to sexual assault on a child delineated in 22.011(a)(2) if, "The child at the time of the offense was 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection." [Subsection (c)(2) ]. Section 2.03 of the Penal Code commands that, if a defense is raised by the evidence, it is to be submitted to the jury with the instruction, "that a reasonable doubt on the issue requires that the defendant be acquitted." In the instant case, the judge was the trier of fact, with the duty to acquit the defendant if a reasonable doubt existed as to the promiscuity of the child prior to the alleged offense.
"Promiscuously" has been defined in Webster's Third New International Dictionary as "in a promiscuous manner." "Promiscuous" is defined as "not restricted to one sexual partner." See Scott v. State, 668 S.W.2d 901 (Tex.App.--Fort Worth 1984, pet. ref'd). "The word 'promiscuity' does not signify an isolated incident of sexual relations with one particular person, but denotes an indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love." 73 C.J.S. Promiscuity (1983). Two Courts of Appeals have quoted the Practice Commentary accompanying TEX.PENAL CODE ANN. § 21.09 (Vernon 1974) stating that promiscuity connotes a variety of consensual sexual conduct with a variety of sexual partners. 3
In the instant case, the evidence of M.H.'s sexual activities raised the issue of her promiscuity. As the evidence of M.H.'s sexual activity was neither explained, controverted, disputed nor rebutted in any way, we hold that M.H.'s conduct was promiscuous as a matter of law. Appellant's first ground of error is sustained.
Appellant's second ground of error argues that the trial court erred in prohibiting him from introducing evidence of M.H.'s sexual activities subsequent to the offense. Appellant relies on Williams v. State, 288 S.W. 205 (Tex.Crim.App.1926), and Magee v. State, 118 Tex.Cr.R. 559, 39 S.W.2d 53 (Tex.Crim.App.1931), in support of his contention. Williams and Magee permitted...
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Johnson v. State
...v. State, 736 S.W.2d 239, 241 (Tex.App.--Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App.1990); Ormand v. State, 697 S.W.2d 772, 773 (Tex.App.--Corpus Christi 1985, no pet.). This definition can be traced to an entry in Corpus Juris Secundum: "The word 'promiscuit......
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Pawson v. State, 367-90
...reasonable doubt on the issue requires that the defendant be acquitted." V.T.C.A. Penal Code, § 2.03(d); see Ormand v. State, 697 S.W.2d 772, at 773 (Tex.App.--Corpus Christi 1985) No PDR; Walker v. State, 727 S.W.2d 759, at 761 (Tex.App.--Tyler 1987) No PDR, among other similar decisions i......
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Graves v. State, 051399
... ... Rankin v. State, 821 S.W.2d 230, 234 (Tex. App.--Houston [14th Dist.] 1991, no pet.); Wimer v. State, 717 S.W.2d 468, 469 (Tex. App.--San Antonio 1986, no pet.); see also Ormand v. State, 697 S.W.2d 772, 773 (Tex. App.--Corpus Christi 1985, no pet.) (holding fifteen-year-old complainant who prior to having sexual intercourse with the defendant, voluntarily had sexual intercourse with four different men on several occasions, two or three of them on a single day, ... Page ... ...
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Hernandez v. State
...consent that uncontroverted evidence of promiscuity established a defense to section 22.011(a)(2) as matter of law. See Ormand v. State, 697 S.W.2d 772 (Tex.App.--Corpus Christi 1985, no pet.). In addition, a number of our sister courts have decided the promiscuity issue without even mentio......
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...72 L.Ed.2d 416 (1982), §8:42 Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), §§6:21.7, 6:21.2.4 Ormand v. State, 697 S.W.2d 772 (Tex.App.—Corpus Christi 1985), §§17:52, 17:53.3 Orona v. State, 836 S.W.2d 319 (Tex.App.—Austin 1992), §17:29 Orosco v. State, 827 S.W.2d ......
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Child Sexual Abuse
...occurred in a single day, and who had a dating relationship with only one of them was promiscuous as a matter of law. Ormand v. State, 697 S.W.2d 772, 773 (Tex. App.—Corpus Christi 1985, no pet. ). On the other hand, where the victim was so enthralled by a man that she committed various sex......
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Child Sexual Abuse
...occurred in a single day, and who had a dating relationship with only one of them was promiscuous as a matter of law. Ormand v. State, 697 S.W.2d 772, 773 (Tex. App.—Corpus Christi 1985, no pet. ). On the other hand, where the victim was so enthralled by a man that she committed various sex......
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Child Sexual Abuse
...occurred in a single day, and who had a dating relationship with only one of them was promiscuous as a matter of law. Ormand v. State, 697 S.W.2d 772, 773 (Tex. App.—Corpus Christi 1985, no pet. ). On the other hand, where the victim was so enthralled by a man that she committed various sex......