Boutwell v. State

719 S.W.2d 164, 1985 Tex. Crim. App. LEXIS 1338

• Court: Court of Criminal Appeals of Texas
• Decided: April 24, 1985
• Docket: 711-83 to 713-83
• Status: Published

Opinions

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

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 vali-ums.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 evi-dentiary 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 appellant was looking at a bird bath and she remembered joking with him: “If this was the 4th of July rather than the 4th of January, the prices would be a lot higher.”

Steve Ortega testified he had known appellant eight to ten years. On January 4, 1979, he was shooting pool at J.B. Novelties at about 6:00 p.m. He saw appellant come in and they talked for a while. Ortega testified the last time he saw appellant that day was at about 8:00 p.m.

After appellant rested, the State announced it had “quite a bit of rebuttal” but that the evidence was the subject of a motion in limine. The court excused the jury and the prosecutor announced his intention to offer “extraneous offenses to rebutt [sic] the defense theory of alibi.” Asked if he understood what the State was doing, defense counsel replied:

“Yes, Sir, he’s coming in with extraneous offenses — to show that the alibi isn’t any good, but I don’t think that — it’s our position that you can bring it in only if identity is a question and all these— identity is not in question. These kids all know him and know him well, and so did the other parties. The identity portion is not the question. I don't think they can bring it in on that issue. Also—

THE COURT: Overruled. Start your witnesses. If you want to state your objection for the record, you may finish stating it but I will allow them to bring in the extraneous offenses now that the defensive theory has been put before the court and the jury.”

The State called R.G., Jr. Appellant objected on the grounds that,

“identity is not in issue, nor is lascivious intent because intent is incorporated into the act, itself, * * * and I don’t think there is anything unreasonable about the defense * * * and we have no idea what they are going to say or how it — ”

At this point the trial judge interrupted counsel stating he would have an opportunity to examine each witness outside the jury’s presence, then asked the prosecutor to show the court his case.¹¹

After R.G., Jr., R.S., Jr., and P.B., all testified to incidences involving sexual contact with appellant, P.J. Lewis identified State’s Exhibits 4 and 5, two photographs of adolescent boys which he testified appellant had given him. Lewis also testified that appellant had told him he had engaged in sex with each boy shown in the photos.

When the prosecutor stated he had finished, the trial judge said,

“All right. I will allow them to be admitted in the presence of the jury. The defendant needs to reiterate his objection now to each as they come in turn.”

Pursuant to this instruction by the court,¹² appellant voiced essentially the same objection to the testimony of each witness:

“The matter is too remote; identity is not at issue; there is no improbable defense; there is no issue of lascivious intent because ... the intent is within the act itself, and the only purpose is to inflame and prejudice the jury.”

Characterizing these objections made in the presence of the jury as “multifarious,” ¹³ the court of appeals first rejected appellant’s contentions because his grounds of error on appeal — that evidence of the extraneous sexual offenses “was not material or relevant to any issue in the case” — did not comport with his trial objection.

We agree with appellant that the court of appeals erred in this respect. Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App.1978) (Opinion on appellant’s motion for rehearing). Appellant’s ground on appeal was merely—as it should be—a shorthand rendition of his more detailed objection voiced at trial.

The next reason stated for the court of appeals’ rejection of appellant’s complaints was that each witness gave substantially the same testimony without objection.

We are completely puzzled by this holding. The record reflects each of the three extraneous offense witnesses testified as to four totally different transactions.¹⁴ Moreover, even the court of appeals’ opinion states “[t]he [trial] court overruled this multifarious objection three times, once as to each witness.”

As to appellant’s objection to admission of the photographs, State’s Exhibits 4 and 5, the court of appeals held the following objection was too general to preserve error: that the photos,

“were not relevant to any issue in the case and were highly prejudicial and harmful to the appellant [and] on the same reasons we objected to the introduction of the extraneous offenses.”

We agree with appellant that the court of appeals also erred in this respect. See Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). Even if this objection had been inadequate, we hold appellant’s objection to the photographs made at the admissibility hearing conducted outside the jury’s presence, effectively preserved his complaint for review. See Article 40.-09(d)(3), supra; and n. 12, ante.

Finally, the court of appeals held, without elaboration, that the extraneous offenses were admissible to rebut appellant’s defense of alibi, citing Chambers v. State, 601 S.W.2d 360 (Tex.Cr.App.1980); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975) and Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974).

In his petition for discretionary review appellant contends, as he did at trial, the State’s extraneous offense evidence was not admissible to controvert alibi because his alibi evidence did not raise any issue as to his own identity or the identity of the perpetrator of the offense. Appellant claims that a fair reading of the record in this case illustrates his alibi evidence raised an issue as to the credibility of the State’s witnesses and showed that they fabricated appellant’s involvement in the transaction which allegedly occurred on January 4, 1979.

The State retorts in effect that defensive testimony of alibi necessarily and in every case “places [the defendant’s] identity [as the perpetrator] in issue.”

The record makes it clear that at the time of trial each of the State’s witnesses not only knew appellant, but knew him quite well. Each could identify photographs of appellant’s home and all testified they knew “how to get there.” Louis Her-ry testified he “know[s] the defendant in this case” and had known him for two years. Herry identified bookshelves in appellant’s living room and sheets on appellant’s bed depicted in photographs. T.M. called the perpetrator “Lester Boutwell” before identifying appellant. T.M. testified appellant “was good at pouting.” When asked about this, he testified he had just met appellant at the time of the offense, “but I knew later [when he was pouting] because he always did.” Perry Lewis testified he had known appellant for six years. M.B. called appellant “Lester” throughout his testimony.

Moreover, appellant’s crossexamination of M.B., Louis Herry and T.M. reveals an effort to show each of the witnesses had faulty recollection of events. This tactic was particularly successful with T.M. and to a lesser extent successful with Herry. Recognizing this, the prosecutor once prefaced a question on redirect examination of Herry, “whether you have your times messed up or not, did it occur ... ?”

Only recently the Court has cautioned against the mechanistic invocation and application of “general rules” and their “exceptions” in the admission of extraneous offense evidence in Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1984). We there reiterated the principle that the general prohibition against extraneous offense evidence must in some circumstances give way.

“For extraneous transactions constituting offenses shown to have been committed by the accused [note omitted] may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.” [Emphasis original.]

Williams, supra, at 346; Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983); Rubio v. State, 607 S.W.2d 498, 506 (Tex.Cr.App.1980) (Opinion concurring).

In the instant case, we are unable to conclude that the record as a whole reflects a material issue as to appellant’s identity as the perpetrator was raised by his alibi evidence so as to justify admission of the contested evidence. It is true that in cases where the accused is a stranger to the State’s witnesses, his evidence that he was elsewhere at the time of the offense will generally raise a material issue as to his identity as the perpetrator. E.g., Chambers, supra; Ransom, supra.

But in cases such as this where the record as a whole makes it clear that the accused is known to the State’s witnesses, or that his defensive evidence is aimed at raising a theory other than “identity,” it ignores the rationale well stated in Williams, supra, “automatically” to admit highly prejudicial evidence as relevant to an issue which, when subjected to analysis, is simply not in the case. See Messenger v. State, 638 S.W.2d 883 (Tex.Cr.App.1982) (Opinion on original submission); and Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App.1972). “Each case must be considered on its own facts....” Franklin, supra, at 829. The danger of rote application of general rules is that they focus on “admissibility” rather than the logical analysis all evidence must withstand to determine admissibility. To the extent that it suggests the defense of alibi invariably and necessarily creates a material issue as to “identity” so as to dispense with further analysis as to the admissibility of extraneous offense evidence, Cameron, supra, is overruled.

Neither were the extraneous offense testimony and State’s Exhibits 4 and 5 admissible to directly rebut appellant’s alibi evidence. Since none of the events described in the State’s evidence occurred on the day of the instant offense, none of it tended to show appellant was not in Killeen where his witnesses said he was. Messenger, supra.

We accordingly hold the court of appeals erred in finding the extraneous offense evidence was admissible to rebut appellant’s defensive testimony. Further, since the contested evidence had no probative value upon a material issue in the case, the effect of its admission was to bombard the jury with evidence that appellant is a “child abuser in general.” This therefore presents a classic example of the kind of evidence which hopelessly distracts the jury from the issues they are called upon to resolve and adulterates the deliberative process. We surely cannot say it made no contribution to the jury’s assessment of appellant’s twenty year sentence.

The judgment of the court of appeals in our Cause No. 711-83 is reversed.

By his first ground for review, appellant complains of the unavailability of the promiscuity defense to him in this prosecution. For the reasons stated in our disposition of the same contention in 711, this ground is without merit.

In his second ground for review, appellant contends his guilty plea was not knowingly entered in that the plea was made upon the representation that his trial counsel would preserve and have reviewed on the merits the preceding contention.

Our treatment of appellant’s first ground for review reflects our plenary consideration of the merits of that contention; assuming (without deciding) the plea was so conditioned, that condition has been in all things met.

Having fully considered the remaining grounds for review in 712, we conclude the appellant’s petition for discretionary review in these regards was improvidently granted. See Rule 302(c) Rules of Post Trial and Appellate Procedure in Criminal Cases.

The judgment of the court of appeals in this cause is accordingly affirmed.

In his petition for discretionary review in this cause, appellant raises five grounds for review which are identical to contentions raised in 712. For the reasons stated in our treatment of grounds one and two in 712, we overrule grounds for review one, two and five herein. We further hold review was improvidently granted on the remaining grounds advanced. Rule 302(c), supra.

The judgments of the court of appeals in our Cause Nos. 712-83 and 713-83 are affirmed.

The judgment of the court of appeals in our Cause No. 711 is reversed.

TEAGUE, J., concurs in result. In Cause No. 711-83, McCORMICK, J., concurs in result and TOM G. DAVIS and W.C. DAVIS, JJ., dissent.

1 . In 711, appellant has advanced ten grounds for review. In 712, appellant raises seven grounds for review. And in 713, five grounds for review are made. The Court did not limit the grant of review to any particular grounds. Grounds which overlap will be treated only once; review of several others was improvidently granted and will be accordingly noted post.

2 . T.M. was the complaining witness in both 712 and 713.

3 . The testimony regarding the chronological sequence of events from this point on conflicts.

4 . Louis Herry testified he was presently incarcerated in the State penitentiary for this transaction.

5 . See n. 3, ante.

6 . The statute under which appellant was prosecuted and convicted provided in relevant part:

“(a) A person commits an offense if, with intent to arouse or gratify the sexual desire of any person, he engages in deviate sexual intercourse with a child, not his spouse, whether the child is of the same or opposite sex; and the child is younger than 17 years.

(b) It is a defense to prosecution under this section that the child was of the opposite sex, was at the time of the alleged offense 14 years or older, and had, prior to the alleged offense, engaged promiscuously in sexual intercourse or deviate sexual intercourse.

V.T.C.A. Penal Code, § 21.10 (1974).

(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

7 . Fourteenth Amendment to the United States Constitution; Tex. Const. Art. I, § 3a.

8 .Specifically, the court of appeals stated:

"Promiscuity connotes a variety of consensual sexual conduct with a variety of partners, and clearly excludes, for example, a single prior act of sexual intercourse. Searcy and Patterson, Practice Commentary, Tex.Pen.Code Ann. § 21.09 (1974). Moreover, we think that an element of continuing conduct extending over a reasonable period of time is implicit in the concept of promiscuity. A person is not promiscuous simply because he has engaged in several acts of sexual conduct within one twenty-four hour span. Our holding today is in line with the somewhat stricter standard of admissibility of evidence of previous sexual conduct that the Court of Criminal Appeals has adopted under Tex.Pen.Code Ann. § 21.13 (Supp.1982). See Vaught, Rape — Admissibility of Victim's Prior Sexual Conduct: What is the Law in Texas? 31 Baylor L.Rev. 317 (1979). Therefore, since [M.B.’s] conduct did not rise to the level of ‘promiscuity,’ the trial court did not err in refusing to charge the jury on the defense of prjor promiscuity. See Parent v. State [621 S.W.2d 796 (Tex.Cr.App. 1981) ]. [Emphasis original.]”

653 S.W.2d at 103.

9 . At the time pertinent to the instant prosecution, § 21.13, supra, provided in pertinent part:

"(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.

(d) This section does not limit the right of the state or the accused to impeach credibility by showing prior felony convictions nor the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to rape of a child, sexual abuse of a child, or indecency with a child.”

10 . The evidence established appellant’s house and therefore the situs of the offense was in Temple.

11 . The prosecutor told the court, "It’s Johnson versus State” but did not mention a citation. We note the only case cited in the State's appellate briefs styled Johnson v. State does not deal with extraneous offense law.

12 . We cannot agree with the trial court that any additional duty devolved upon defense counsel to object to each of these witnesses’ testimony in the presence of the jury in order to avoid waiver. Article 40.09, § 6(d)(3), V.A.C.C.P. To the extent that the court of appeals’ opinion can be read to approve this instruction, it is overruled.

13 . We are perplexed by the court of appeals’ characterization in this regard. Since evidence may be admissible for a number of reasons, it may also be in admissible for a number of reasons. Trial objections, unlike appellate grounds of error, may contain as many independent supporting reasons as the objecting party believes pertinent. Though it was unnecessary to do so, see Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App.1978) (Opinion on original submission) (Roberts, J., dissenting), defense counsel was attempting to anticipate and refute any reason he thought the State might eventually claim justified admission of what is generally inadmissible evidence.

In sum, to the extent the court of appeals’ characterization of the objection as "multifarious” may intimate the objection was somehow defective or inadequate to preserve error, it is incorrect.

14 .The prosecutor ultimately adduced before the jury the extraneous offense testimony of R.G., Jr., R.S., Jr., and P.J. Lewis apparently having decided against the testimony of P.B. Lewis testified only about State’s Exhibits 4 and 5.