Pawson v. State, 367-90

• Decision Date: 27 October 1993
• Docket Number: No. 367-90,367-90
• Citation: 865 S.W.2d 36
• Parties: Ralph Wilbur PAWSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 36

865 S.W.2d 36

Ralph Wilbur PAWSON, Appellant, v. The STATE of Texas, Appellee.

No. 367-90.

Court of Criminal Appeals of Texas En Banc.

Oct. 27, 1993.

Don Metcalfe, Dallas, for appellant.

Jerry Cobb, Former Dist. Atty., and Gwinda Burns and Nancy Jessee, Asst. Dist. Attys., Denton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury convicted appellant Ralph Wilbur Pawson of sexually assaulting a child, and assessed his punishment at twelve years' confinement and a $10,000 fine. V.T.C.A., Penal Code, Section 22.011(a)(2)(A). On direct appeal, the Court of Appeals reversed the conviction, and remanded the cause for a new trial. Pawson v. State, No. 2-89-007-CR (Tex.App.--Fort Worth, delivered January 31, 1990) (nonpublished). 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), a defendant must claim the victim consented as a prerequisite to raising the promiscuity defense under V.T.C.A., Penal Code, Section 22.011(d)(1).

In Hernandez v. State, 861 S.W.2d 908, (Tex.Cr.App., 1993), this Court decided the issue adversely to the State and, in effect, held consent is irrelevant to a prosecution under Section 22.011(a)(2). Id., at 910. Therefore, we overrule the State's ground for review, and affirm the judgment of the Court of Appeals.

WHITE, J., dissents with note:

WHITE, Justice.

I respectfully dissent for the reasons set out in the dissenting opinion in Hernandez v. State, 861 S.W.2d 908 (Tex.Cr.App., 1993).

BAIRD, J., joins the opinion but dissents to the decision to publish.

MEYERS, J., not participating.

CLINTON, Judge, concurring.

I join the opinion of the Court, and write further, essentially to emphasize certain peculiarities of this particular case that are not found in Hernandez v. State, 754 S.W.2d 321 (Tex.App.--Houston [14th] 1988), affirmed 861 S.W.2d 908 (Tex.Cr.App.1993, rehearing denied September 22, 1993), although the facts there are surely bizarre enough.

As pertinent here (November 1, 1986), § 22.011 provides "(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the ... female sexual organ of another person who is not the spouse of the actor by any means, without that person's consent;

* * * * * *

(2) intentionally or knowingly:

(A) cause the penetration of the ... female sexual organ of a child by any means;

* * * * * *

(c) In this section:

(1) "Child" means a person younger than 17 years of age who is not the spouse of the actor.

(d) It is a defense to prosecution under Subsection (a)(2) of this section that:

(1) the child was at the time of the offense 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection[.]" ¹

One will immediately notice that whereas subsection (a)(1)(A) requires the rape of any female be "without that person's consent," subsection (a)(2)(A) denounces rape of a child without mentioning the matter of consent. Moreover, in providing a defense of prior promiscuous sexual conduct for rape of a child 14 years of age or older, subsection (d)(1) is also silent about "consent."

Nevertheless, the trial court below and the State in the court of appeals and seemingly now would require the accused to show that his child victim consented to the assault before he may invoke the promiscuity defense. Never mind that the statute itself contains no such requirement. In fact, where once the statutory rape statute expressly made consent an element of the former unchastity defense, the current promiscuity defense on its face contains no such limitation. One would think, in that event, that the plain language of the statute would control, and indeed that is the exact conclusion reached by this Court in Hernandez. ²

As currently formulated, the statute does not present the problem imagined by some, at least in the general run of cases. As Judge Overstreet convincingly demonstrates for the Court in Hernandez, thus understood, there is nothing even remotely absurd about the statutory scheme as presently composed.

It is tempting, therefore, simply to conclude that the State pled the wrong theory of sexual assault in this case if it wished to avoid disproving evidence of the complainant's promiscuity. On the facts of the instant case, however, that conclusion is not so facile. For the facts here are peculiar, and do not fit handily within either theory of sexual assault under § 22.011, supra.

The indictment alleges appellant caused the penetration of the female sexual organ of the complainant, his stepdaughter, with his finger. Complainant recounted that once when she was fourteen, after being out with some friends she came home, went into the bedroom of her parents and appellant told her to go into her bedroom so he could "check" her; appellant came into her bedroom and the conduct in question occurred, viz "He had me take off my clothes and lay on the bed, and he checked my genital. * * * He took his hand and he was rubbing on it. And he stuck his fingers in it and was rubbing around saying that he was checking for something."

--"it" being her "female sexual organ." I SF 129-35. She further testified she was "afraid" that appellant "was going to try to do something else besides what he was doing." Id., 134. Later on redirect examination she explained that while in her parents' bedroom and in the presence of her mother appellant had said he suspected that she "had been doing drugs or had sex with somebody" and wanted to "check" her; then on cross-examination she admitted her mother had told appellant "to do the checking," "gave him the authority to check [her]." 2 SF 292-293, 332-334. ³ At one point, complainant testified appellant had a belt in his hand during the alleged assault. Id., 252.

But for the presence of the belt, it hardly seems likely that the State could successfully have prosecuted appellant for sexual assault under § 22.011(a)(1), supra. For, other than that possible threat to use force or violence to compel submission, there appears no other theory supported by the evidence by which the State could prove that the penetration of complainant's sexual organ with his finger was accomplished without her consent as that is defined in § 22.011(b)(2), supra. Moreover, against a theory of forcible sexual assault under § 22.011(a)(1), supra, appellant might successfully interpose the parent-child justification enumerated in V.T.C.A. Penal Code, § 9.61. ⁴ It appears the State's real concern in this cause is that the statutory scheme might not accommodate the particular facts of this, and other like cases.

That a rational and workable statutory scheme may contain apparent loopholes, however, does not justify judicial inter lineation. Certainly a stepfather's behavior in "checking" his suspected promiscuous stepdaughter in the manner presented here, even in the name of parental discretion, will appear unseemly at best. In fact, his conduct is apparently illegal if he uses force or threats, § 22.011(a)(1), supra, to compel her, ⁵ or if she is between the ages of 14 and 16, inclusive, and he cannot prove promiscuity to the satisfaction of a jury, id., § (a)(2) & (d). Otherwise, however, to hold the accused liable for a second degree felony, § 22.011(f), supra, is to make a judgment that the Legislature has not authorized. While it may be appropriate for the judiciary to decry an apparent statutory gap, we are not at liberty to fill it. Judicially to add an element of consent to the promiscuity defense, as some would require, violates both separation of powers, under Article II, § 1 of the Texas Constitution, and the accused's right under the Due Process Clause and due course of law to be prosecuted under the law as the Legislature wrote it, rather than as judges recast it. ⁶ Cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

With those additional observations and supplementary comments I join the opinion of the Court.

APPENDIX

Ralph Wilbur Pawson v. The State of Texas

I

A

Early on, like other kinds of handling, "fingering" was regarded in law as an "indecent familiarity," alone constituting "no more than an aggravated assault." ¹ Enfield v. State, 94 Tex.Cr.R. 226, 250 S.W. 162 (1923), and cases cited therein; see Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704 (1937); see also Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479, at 481, 482 (1952) (putting finger in private part is "indecent fondling" under former article 535d, P.C. 1925, and under allegations of indictment aggravated assault not lesser included offense).

Reflecting contemporaneous societal tenets of morality usually expressed in biblical language, our earlier statutes always provided that "rape is the carnal knowledge of a woman" under prescribed circumstances and conditions, including varying treatments of the age of consent from 10 to 18 years. See generally dissenting opinion in Kruger v. State, 623 S.W.2d 386, at 387, n. 5; 389, n. 13 (Tex.Cr.App.1981). Regardless of age, however, "carnal knowledge" was the constant offensive core conduct. ² Moreover, consensual "carnal knowledge" of a female under the age of consent was still rape, e.g., Edwards v. State, 78 Tex.Cr.R. 210, 181 S.W. 195 (1915); Rodgers v. State, 30 Tex.App 510, 17 S.W. 1077, 1078 (1891); the State was permitted to adduce evidence of prior consensual intercourse between the same parties in certain circumstances, e.g., Battles v. State, 63 Tex.Cr.R. 147, 140 S.W. 783, at 797 (1911); but defendant was precluded from showing as a defense that he, another or others had previously rendered her unchaste, e.g., Clardy v. State, 66 Tex.Cr.R. 351, 147 S.W. 568, at 569 (1912); Foreman v. State, 61 Tex.Cr.R. 56, 134 S.W. 229, at 230 (1911); Shoemaker v. State, ...