Hernandez v. State

754 S.W.2d 321, 1988 Tex. App. LEXIS 1360, 1988 WL 57740

Opinions

OPINION

J. CURTISS BROWN, Chief Justice.

A jury convicted Joe Frank Hernandez [Hernandez] of violating section 22.-011(a)(2)(A) of the Texas Penal Code by sexually assaulting a child between the ages of fourteen and seventeen. The court assessed his punishment at confinement in the Texas Department of Corrections for eight years.

Hernandez asserts four grounds of error: First, that the trial court erred in refusing to submit to the jury evidence regarding the promiscuity of the complaining witness before the indicted offense; second, that the trial court erred in not finding that the evidence established the defense of promiscuity as a matter of law under Tex.Pen. Code § 22.011(d)(1) (Vernon Supp.1988); third, that the trial court erred in admitting into evidence a photograph depicting him nude with an erection; fourth, that the trial court erred in admitting evidence of extraneous offenses. We reverse, sustaining points one, three, and four.

In addition to the brief that counsel filed, Hernandez has filed a pro se brief with this court. No right to hybrid representation exists in Texas. Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App.1981); Normand v. State, 686 S.W.2d 275, 279 (Tex.App.—Houston [14th Dist.] 1985, pet. ref'd). Appellant’s pro se brief presents nothing for review. We have, however, examined the contentions in the pro se brief and find no error we should consider in the interest of justice.

The complainant once lived in San Antonio next door to Hernandez. At the time, he was approximately sixty-seven years old. The complainant lived there from the time she was approximately eleven years old until she was thirteen. During this period, Hernandez acquainted himself with the complainant and her family. The family moved to Pocohantas, Arkansas when the complainant was thirteen. Two or three years later, the complainant’s parents and her fourteen year old half sister, Evelyn, drove to San Antonio. The girls’ parents allowed Evelyn to stay with Hernandez, ostensibly so he could buy her some clothes. The complainant testified Evelyn telephoned her mother, and that she overheard her sister saying “[t]hat it hurt, to send Barb down.” Afterward, the girls’ mother told the complainant that she was to go and stay with Hernandez to “get some clothes.” When the complainant’s mother sent her to San Antonio to stay with him, Hernandez paid for the plane ticket.

After she arrived, Hernandez had her try on her sister’s clothes in front of him to “see how they looked.” The complainant testified Hernandez had her change clothes in front of him, stripping down to her panties and brassiere in the process. After complimenting her upon the way Evelyn’s clothes looked on her, and after her sister had left the room, Hernandez approached the complainant, put his hands on her body, and informed her that she was going to sleep with him that night. She threatened to tell her mother, but Hernandez said her mother already knew. She testified she did not resist his sexual advances because her mother had “set it up with him.” Hernandez’ attorney took the complainant on voir dire to challenge her personal knowledge that her mother had “set it up.” She explained that her mother had bargained with Hernandez before sending the complainant to visit him the first time. After Evelyn had called to say “it hurts,” the complainant had overheard her mother telling Hernandez, “if [the complainant] was to go down there, he was to get [her] some clothes.” The next morning, he gave her a short black and orange nightgown out of his closet. He had her wear the nightgown around the house. During his relationship with her he gave her several other outfits.

At trial, Evelyn denied the girls had disrobed in front of Hernandez and denied either girl had slept with him. Hernandez paid for plane tickets on three or four weekends so the complainant could travel to and from Arkansas. He continued to have her wear the black nightgown with orange lace around his house. Once, the complainant testified, Evelyn accompanied her to San Antonio, and he slept with both girls. The last time the complainant spent the weekend with Hernandez, in San Antonio a short, heavy set “Mexican” man came to Hernandez’ house. The complainant testified that Hernandez offered her to the man for one hundred dollars. Hernandez sent the complainant and the man to her bedroom where they copulated. A man named Max came to Hernandez' house the same day. The complainant heard Hernandez offer her to Max for a hundred dollars. Hernandez sent them to her room to copulate. She performed orally upon the man’s penis, but after sodomizing her the man could not penetrate her vagina with his penis. The complainant testified she did not object to the sexual abuse because she was afraid her mother would ground her or heat her. She had spoken to her mother about the sexual assaults, including oral sodomy, and her mother had continued to send her to Hernandez. Her mother told her it was “to pay the bills.” Hernandez was giving her mother money from time to time. Throughout the trial, the complainant testified she was very much afraid of her mother. She testified her mother had hit her in the head with her hand, injuring the hand. In addition, she testified that scars on her head had resulted from her mother hitting her in the head two or three times with an iron skillet. She also testified Hernandez had also spanked her once because she could not figure out how to use the dust buster, a vacuum that had only recently come out on the market.

A week or two after her last weekend visit with Hernandez, the complainant’s family moved back to San Antonio. The complainant and her sister lived with Hernandez. Their parents lived down the street about a block away. The complainant testified Hernandez was selling both girls’ sexual favors to men. He also took nude pictures of the complainant.

Hernandez moved to Houston in late 1985. The complainant’s mother made her quit school and go to live with Hernandez in his one bedroom apartment. While she stayed with him in Houston, Hernandez had sexual intercourse with the complainant. She testified Hernandez also brought home a Pekinese puppy. He made the Pekinese “use his mouth” on the complainant’s vagina. Other men also visited the apartment.

Several days before the complainant escaped from the apartment, a short, fat, elderly black man came to the apartment. Hernandez made the complainant sit in the man’s lap in her orange and black lingerie. Hernandez and the man discussed a trade in which Hernandez would get a parking lot for his restaurant, and the complainant was to “be with” the man for five years. Hernandez sent her to the bedroom, where she had sexual relations with the man. Hernandez also brought home a woman named Anita several days before the complainant escaped. He had visited Anita at her mobile home in the past in order to “check on his oil wells.” After Hernandez had sold the complainant, Anita moved into the apartment and slept with Hernandez. The complainant slept in the living room. The complainant testified she had not left Hernandez’ apartment before this time because she had no money, she would be locked out, she knew no one in Houston, and she thought Hernandez would find her before she got far. However, she testified she was afraid and cried because she had been sold to the elderly black man and “he was so big” she did not know what to do. On the night of February 12, 1985, while Hernandez was at work, the complainant went out of the apartment to a pay telephone. Anita remained in the apartment to let the girl back in when she pressed the telephone code at the security door. The complainant phoned her grandmother in Michigan. Her grandmother gave her the unlisted telephone number of an aunt who lived in Conroe. After about an hour,- her aunt picked her up at 5600 Fannin. The complainant’s aunt took her to the apartment to pick up her clothes and the Pekinese puppy. Then her aunt took her to Conroe. The next morning, the complainant called the police.

A grand jury indicted Hernandez as follows:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, JOE FRANK HERNANDEZ hereafter styled the Defendant, heretofore on or about February 8, 1985, did then and there unlawfully intentionally and knowingly cause the penetration of the vagina of ... the Complainant, a person younger than seventeen years of age and not his spouse by placing his sexual organ in the vagina of the Complainant. AGAINST THE PEACE AND DIGNITY OF THE STATE.

The trial court refused to admit evidence the complainant had been promiscuous before the date of the indicted offense. The complainant’s half sister testified outside the hearing of the jury that the complainant had engaged in sexual relations with several boys before the date of the indicted offense. She testified to seeing the complainant once naked in a trailer at Hernandez’ ranch on top of a teenage boy. She also testified to seeing the complainant naked in a pickup truck, in Arkansas, beneath another boy who wore only a pair of undershorts around his knees. She testified to seeing the complainant naked on top of another boy at his house in San Antonio. She further testified that the complainant had told her about being “in bed with” and “messing around and stuff” with the brother of the boy she had slept with at Hernandez’ ranch. The complainant testified she had engaged in sexual relations with two of the boys more than once, but indicated she had done so with one only before she was “going with” the other. The complainant denied having sexual relations with any other boys.

The trial court should have admitted the evidence of the complainant’s previous promiscuity. Texas Penal Code § 22.011 states:

(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 fourteen years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection....

Texas Rule of Criminal Evidence 412(e) also refers to the defendant’s right to produce evidence of promiscuous sexual conduct of a child fourteen years old or older.

The State argues that Hernandez is not entitled to assert the promiscuity defense because consent is not an issue in the case. Neither the indictment of Hernandez nor the charge to the jury in the present case alleges a theory of forcible rape. The State cites Moore v. State, 703 S.W.2d 762, 764 (Tex.App.—Houston [14th Dist.] 1985, no pet.). In Moore, a grand jury had indicted the defendant for both sexual intercourse with a child and forcible rape. Moore had choked his fourteen year old daughter and threatened to kill her when she resisted being raped. The judgment in Moore recited that the State had moved to dismiss the paragraph of the indictment that charged forcible rape. The record did not disclose when the prosecution dropped the forcible rape charge. However, the trial court in Moore had indicated when it decided to allow evidence of promiscuity that the defendant did not have to raise the issue of consent in order to offer evidence of promiscuity. This court decided in Moore that when the legislature replaced Tex.Pen.Code Art. 1183 with 21.09 [now 21.011], the legislature intended to continue requiring a defendant to raise consent before allowing him to assert promiscuity as a defense. 703 S.W.2d at 764. In support of this decision, Moore quoted Judge Clinton’s opinion concurring in the judgment in another case with the same name as the present case, Hernandez v. State, 651 S.W.2d 746 (Tex.Crim.App.1983). When this court decided Moore, that opinion concur ring in the judgment in Hernandez was the only guidance the Court of Criminal Appeals had provided on this issue. Judge Clinton stated, “V.T.C.A.Penal Code, § 21.09, [now renumbered as § 21.011] makes victims under 17 who have not previously engaged in promiscuous sexual or deviate sexual intercourse and those victims under 14, regardless of prior promiscuous sexual conduct, legally incapable of giving consent to sexual intercourse.” 651 S.W.2d at 753. Judge Clinton stated this in order to explain that a complainant’s testimony in statutory rape cases required no corroboration because she could not be an accomplice witness to her rape.

Judge Clinton wrote for the majority opinion on the issue of promiscuity in Boutwell v. State, 719 S.W.2d 164, 167-69 (Tex.Crim.App.1985). He began to address promiscuity with the phrase, “[ajssuming arguendo that appellant was entitled to employ the promiscuity defense....” In the discourse that followed, Judge Clinton stated:

[B]y providing the “promiscuity” defense, the Legislature has pronounced the complaining witness’ 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.

719 S.W.2d at 168 (emphasis in original).

After this discourse, the opinion in Boutwell concluded that the defendant was not “otherwise ... entitled” because the promiscuity defense did not apply to homosexual assaults. Thus, for guidance from the Court of Criminal Appeals, we have only Judge Clinton’s concurrence in Hernandez and his conflicting dicta in Bout-well. Judge Clinton apparently expected appellate courts to heed his statements in Boutwell. He explicitly overruled the language of the appellate court in Austin in his dicta. While Boutwell was pending on rehearing, before the opinion was published, our court decided without referring to consent that mere evidence of promiscuity raised the defense. Boulding v. State, 696 S.W.2d 457, 459 (Tex.App.—Houston [14th Dist.] 1985), rev’d on other grounds, 719 S.W.2d 333 (Tex.Crim.App.1986) (remanding for further consideration in light of Boutwell).1 Section 22.011(a)(2) defines certain sexual contacts with a child as of fenses. Consent is irrelevant to statutory rape. Section 22.011(d) makes promiscuity a defense. Subsection (d) does not refer to or require a theory of consent. We decided in Boulding the defendant had demonstrated the promiscuity defense applied when he proved the complainant was fourteen years old and had engaged promiscuously in sex before the offense.² Although our constitutional analysis in Boulding was contrary to Boutwell, our analysis of the promiscuity issue agreed with the Court of Criminal Appeals’ Boutwell analysis. Therefore, we follow Boutwell and our Boulding analysis of the promiscuity defense. We hold section 22.011(d) does not require a defendant to raise consent before he can assert the promiscuity defense. Consent is simply irrelevant to statutory rape. Under the old statute, a defendant could use promiscuity to prove a child was capable of consent if he proceeded on the theory the child had consented. In section 22.011(d) the legislature has mandated acquittal of statutory rape charges when the child is over fourteen and under seventeen and has been promiscuous before the indicted offense.

The egregious facts of the present case demonstrate the unhappy policy implications of section 22.011(d). The purpose of the newer statutory rape statute was to prevent imposition upon females under the age of seventeen by older and presumably more experienced males.³ It seems uncivilized to declare young females “fair game” for older males merely because they have had several sexual experiences with boys close to their own age. These girls seem as likely to sustain psychological and emotional damage from the imposition of older male relatives and family “friends” as their less experienced girlfriends. Nevertheless, 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.

In the present case, if the trial court had admitted the evidence of the complainant’s promiscuity, the jury might have acquitted Hernandez. This case demonstrates that the portions of section 22.011 concerning statutory rape have fallen far short of the policy objective of preventing imposition by older males. Section 22.011(d) should be an affirmative defense, requiring active consent of the promiscuous child to establish the defense. Nevertheless, this court cannot usurp the functions of the legislature to correct even the most lamentable errors. The legislature provided promiscuity of the victim as a complete defense. Therefore, Hernandez had a right to submit to the jury any evidence that would raise a fact issue regarding the complainant’s promiscuity. As the evidence in Hernandez’ bill of exceptions would have raised such an issue, his first point of error is sustained.

Since the trial court did not admit any evidence of promiscuity, it could not possibly have ruled that the evidence established the defense of promiscuity as a matter of law. Hernandez’ evidence would have raised a fact issue regarding promiscuity, but it would not have established the defense as a matter of law. See Scoggan v. State, 736 S.W.2d 239, 241 (Tex.App.—Corpus Christi 1987, no pet.) (failed to establish as a matter of law that sex was indiscriminate). Therefore, the appellant’s second point of error is overruled.

The trial court erred in admitting the nude photograph of Hernandez into evidence during the prosecution’s cross-examination of Hernandez’ doctor. The prosecutor purportedly offered the photograph to prove Hernandez was not impotent when he sexually assaulted the complainant. Over the objection of Hernandez’s attorney, the trial court refused to require the prosecutor to present any evidence of the date the photograph was taken. The only evidence of the time the photograph was taken was the opinion of Hernandez’ doctor that the photograph did not depict Hernandez’ physiological condition during the time in issue. First, the doctor testified Hernandez had an erection in the picture. He testified this was physiologically inconsistent with Hernandez’ abilities during the time in question. Second, the doctor testified Hernandez had not been in the good physical condition depicted in the photograph since several years before the alleged assault occurred. The prosecutor simply failed to set the predicate. Therefore, as admitted into evidence, this photograph had no probative value. A nude photograph of the defendant with an erection in a child rape case is, by nature, highly prejudicial. Admitting this photograph was error. Tex.R.CRIm.Evid. § 103(a). The appellant’s third point of error is sustained.

The trial court admitted into evidence testimony that Hernandez had arranged sexual liaisons between the complaining witness and various individuals other than Hernandez. A jury is entitled to know all the relevant surrounding facts and circumstances of a charged offense. Archer v. State, 607 S.W.2d 539 (Tex.Crim.App.1981). Therefore, where (1) an offense or transaction is one continuous episode or (2) another offense or transaction is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper. Mitchell v. State, 650 S.W.2d 801, 811 (Tex.Crim.App.1983). Under a limited exception to the general rule excluding extraneous offenses, prosecutors may present evidence that the accused committed extraneous sexual offenses upon a complainant under the age of seventeen because those contacts are part of a continuing transaction. See generally Boutwell v. State, 719 S.W.2d 164, 174-81 (Tex.Crim.App.1985) (opinion on rehearing). The extraneous offenses explain the continuing relationship between the defendant and the complainant. Boutwell, 719 S.W.2d at 176. The defendant must generally have denied the relationship, as Hernandez did in the present case, before the extraneous offenses are admissible. Id. It is then more probative than prejudicial to allow evidence of acts between the complainant and the defendant that place the charged act in its proper context of the relationship of the parties. Id.

The trial court admitted offenses the defendant committed by arranging for other men to sexually assault the complainant. These offenses did not fall within the Bout-well exception. They were not sexual acts between the defendant and the complainant. Hence, the prosecutor was not entitled to present evidence of these extraneous offenses without including them in the indictment. The appellant’s fourth point of error is sustained.

Reversed and remanded.

Footnotes

1

. One of our sister courts apparently agreed with the dicta in Boutwell when it stated without mentioning 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 mentioning the issue of consent as a prerequisite. E.g., Scoggan v. State, 736 S.W.2d 239, 241 (Tex.App.—Corpus Christi 1987, no pet.) (stating the promiscuity defense without mentioning consent); Walker v. State, 727 S.W.2d 759, 761 (Tex.App.—Tyler 1987, no pet.) (excluded evidence of four acts of sexual intercourse by complainant entitled defendant to promiscuity defense under Boutwell); Wimer v. State, 717 S.W.2d 468 (Tex.App.—San Antonio 1986, no pet.) (defendant admitted rapes, but his earlier consensual sexual relations with his daughter did not constitute promiscuity); Jasso v. State, 699 S.W.2d 658, 660 (Tex.App.—San Antonio 1985, no pet.) (no consideration of consent before denying that acts in evidence constituted promiscuity); Wicker v. State, 696 S.W.2d 680 (Tex.App.—Dallas 1985) (appellant asserted ability to consent based on promiscuity, but court did not mention whether consent was material in analyzing promiscuity), aff’d en banc, No. 1175-85 (Tex.Crim.App., Oct. 21, 1987) (not yet reported) (affirming upon challenge to voluntariness of confession); Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.—Texarkana 1985, pet. ref'd) (defendant claimed consent was raised, but court did not address consent in finding evidence did not support promiscuity defense); Scott v. State, 668 S.W.2d 901 (Tex.App.—Fort Worth 1984, pet. ref'd) (reaching merits of whether conduct was promiscuous without mentioning consent); cf. Crites v. State, 700 S.W.2d 23 (Tex.App.—Dallas 1985, no pet.) (applying the closely analogous promiscuity defense in Tex.Pen.Code section 21.11 (Vernon Supp.1985)); Honc v. State, 698 S.W.2d 218, 221 (Tex.App.—Corpus Christi 1985, pet. granted) (applying Tex.Pen.Code section 21.11 (Vernon Supp.1985)); contra Lewis v. State, 709 S.W.2d 734, 735 (Tex.App.—San Antonio 1986, pet. ref'd, untimely filed) (relying upon the law that applies to forcible rape of adults to hold that the defendant must raise the issue of consent in order to present evidence of promiscuity). The Lewis court clearly confused the law applying to forcible rapes with the law applying to statutory rape.

2

. In Boulding we stated:

[T]he record in the present case clearly reveals the complainant was 14 at the time of the December 15th offense....

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... [T]he complainant testified that prior to the sexual encounters with appellant, he had engaged extensively in sexual conduct with about four or five girls. He further testified he is the father of an infant son. This evidence is sufficient under section 21.10(b) [now section 22.011(d) ] to show the complainant engaged promiscuously in sexual intercourse. Thus, appellant has successfully demonstrated that section 21.10(b) [now section 22.011(d)] applies to his situation_

696 S.W.2d at 459.

3

. State Bar of Texas Committee on Revision of the Penal Code, A New Penal Code for Texas 15 (December 2, 1970) (available at the Legislative Reference Library in Austin). The committee report states that this rationale supported the "incapable of consent” sexual offenses, and that the "innovations” in the new statute are consistent with the rationale of preventing imposition by older males. Id. The report refers to a "uniform age of consent.” We interpret this as an age below which consent is irrelevant. More importantly, however, the plain facial meaning of the statute is that a complainant’s promiscuity before the indicted offense is a defense. The committee comments accompanying the Proposed Penal Code that the legislature passed in 1973 stated:

The female legally incapable of consenting to sexual intercourse is the subject of the offense created by this section, which is often called statutory rape. Rape by force, threat, or fraud, it should be noted, is proscribed by Sections 21.02 (rape) and 21.03 (aggravated rape), so this Section 21.09 [now subsections (a)(2) & (d) of 22.011] deals only with consensual (in fact) sexual intercourse.

Proposed Penal Code section 21.09 committee comment (Proposed Official Draft 1970) (63rd Texas Legislature). See also Tex.Pen.Code section 21.09 practice commentary (Vernon 1974) (reciting the exact same language). Hence, consent is not an issue when the indictment alleges an offense under section 22.011(a)(2). The Texas Penal Code does not state the child’s consent is a defense. Sex with the child is an offense even if the child consented to the relations.