TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00076-CR
v.
The State of Texas, Appellee
NO. 96-093, HONORABLE JACK ROBISON, JUDGE PRESIDING
"A person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means [and] the victim is younger than fourteen years of age." See Penal Code § 22.021(a)(1)(B)(i), (2)(B). The two-count indictment is based on undisputed evidence that appellant and the victim engaged in consensual intercourse when the victim was twelve and thirteen. Also undisputed are the ages of defendant on the dates alleged in the two counts, twenty-two and twenty-three respectively.
The trial court held a hearing out of the presence of the jury at which evidence was offered that the victim had consensual sexual intercourse with other persons before and during the time period she and appellant were having their affair. See Tex. R. Crim. Evid. 412. The trial court held that the evidence presented by appellant did not come within any of the exceptions under Rule 412 that allow evidence of an alleged victim's past sexual behavior.
On appeal, appellant limits his complaint about the trial court's exclusion of evidence of the victim's past sexual behavior to his contention that its exclusion constitutes an absurd result. Appellant directs our attention to evidence that shows that appellant and the victim had no adult supervision; nothing was done after the adult caretaker learned of their behavior; and the victim was allowed to keep her own hours even after her mother learned of her conduct.
Appellant seizes on language in May v. State, 919 S.W.2d 422 (Tex. Crim App. 1996), in urging that the trial court's action in excluding the proffered evidence led to an absurd result. In May, the victim was fourteen at the time of the alleged offense but the proffered evidence was of promiscuous conduct that occurred before the victim reached the age of fourteen. The court found that the legislature did not explicitly limit the availability of the defense of previous sexual conduct to situations after the complainant reached fourteen, noting the limitation applies to the age when the offense being prosecuted occurred. Id. at 423. The May court held that evidence of promiscuity occurring before the age of fourteen is admissible when the victim is fourteen or older when the primary offense is alleged to have occurred. Id. The court stated that any other interpretation would "lead to absurd results which the legislature could not have intended." Id. at 424.
Appellant does not advance any of the limited exceptions for admissibility of evidence of prior sexual behavior listed under Rule 412. May, upon which appellant relies, points out that its holding is not applicable to the facts herein. May expressly stated that a child under fourteen cannot legally consent to sex, and even though the child consented, "that consent is not given any legal effect and provides no defense." Id. at 424. Appellant's point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Jones, Kidd and Davis*
Affirmed
Filed: May 29, 1998
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
ed in not allowing appellant to present evidence of the victim's past sexual activity. We will overrule appellant's point of error and affirm the judgment of the trial court.
"A person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means [and] the victim is younger than fourteen years of age." See Penal Code § 22.021(a)(1)(B)(i), (2)(B). The two-count indictment is based on undisputed evidence that appellant and the victim engaged in consensual intercourse when the victim was twelve and thirteen. Also undisputed are the ages of defendant on the dates alleged in the two counts, twenty-two and twenty-three respectively.
The trial court held a hearing out of the presence of the jury at which evidence was offered that the victim had consensual sexual intercourse with other persons before and during the time period she and appellant were having their affair. See Tex. R. Crim. Evid. 412. The trial court held that the evidence presented by appellant did not come within any of the exceptions under Rule 412 that allow evidence of an alleged victim's past sexual behavior.
On appeal, appellant limits his complaint about the trial court's exclusion of evidence of the victim's past sexual behavior to his contention that its exclusion constitutes an absurd result. Appellant directs our attention to evidence that shows that appellant and the victim had no adult supervision; nothing was done after the adult caretaker learned of their behavior; and the victim was allowed to keep her own hours even after her mother learned of her conduct.
Appellant seizes on language in May v. State, 919 S.W.2d 422 (Tex. Crim App. 1996), in urging that the trial court's action in excluding the proffered evidence led to an absurd result. In May, the victim was fourteen at the time of the alleged offense but the proffered evidence was of promiscuous conduct that occurred before the victim reached the age of fourteen. The court found that the legislature did not explicitly limit the availability of the defense of previous sexual conduct to situations after the complainant reached fourteen, noting the limitation applies to the age when the offense being prosecuted occurred. Id. at 423. The May court held that evidence of promiscuity occurring before the age of fourteen is admissible when the victim is fourteen or older when the primary offense is alleged to have occurred. Id. The court stated that any other interpretation would "lead to absurd results which the legislature could not have intended." Id. at 424.
Appellant does not advance any of the limited exceptions for admissibility of evidence of prior sexual behavior listed under Rule 412. May, upon which appellant relies, points out that its holding is not