dissenting.
Because I believe the trial court properly excluded evidence of prior sexual acts of the child victim, I dissent.
It is a defendant’s burden of proof to present facts which show the existence of an affirmative defense. See TexPenal Code Ann. § 2.04(c).1 During a hearing outside the presence of the jury, the victim admitted to having sexual intercourse with two boyfriends prior to the alleged offense which is the subject of this appeal. The victim also stated, however, that at the time of each act of intercourse she had feelings for and thought that she loved each boyfriend. The appellant’s defense team had the names of the two boyfriends, but did not elicit any evidence concerning the time frame in which the two acts0 of intercourse occurred nor did they elicit any evidence to rebut the victim’s testimony that at the time of the acts that she thought she loved each of the respective boyfriends.
I agree with the majority that the appropriate standard of review concerning the court’s decision to exclude evidence of the victim’s two instances of prior sexual conduct is under the abuse-of-discretion standard. In applying that standard, as the Court of Criminal Appeals has described, an abuse of discretion occurs when the trial court applies an erroneous legal standard, or when no reasonable view of the record could support the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497 (Tex.Crim.App.1996). An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Castillo v. State, 913 S.W.2d 529, 539 (Tex.Crim.App.1995). In applying these guidelines, the trial judge could have followed the reasoning of *206the Corpus Christi Court of Appeals in Connolly v. State cited by the majority which defined promiscuity as the “indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love.” The evidence elicited only two acts of intercourse, each of which the victim testified were done as acts of love — which testimony was not rebutted. Neither was there any testimony of time frame when these acts occurred.
From the record, the appellant had obtained the names of the two boyfriends at previous “counseling” sessions with the minor victim.2 Inasmuch as the appellant never sought permission to divulge information obtained through his professional counseling of the victim, I fail to see how the court could have erred in not admitting it. Once the testimony concerning the victim’s love for the two boys was elicited, I believe the appellant had the burden to bring forth further evidence from the boyfriends or others rebutting the “love” testimony. The scant amount of evidence before the trial judge indicated only two instances of sexual intercourse done when the victim testified she thought she loved each respective boyfriend. The trial judge was not given the victim’s age when these acts were committed, whether the victim had been dating the boyfriends over an extended period of time or the time frame in which the incidents occurred. Under these meager facts, I do not believe the judge’s decision was so clearly wrong as to lie outside the zone within which reasonable persons might .disagree. Additionally, since it is unrebutted that love was involved in each incident, there is no evidence to indicate that the acts were performed indiscriminately. The record, being void of any evidence that the acts were done indiscriminately, should as a matter of law under these circumstances, fail to raise the issue of promiscuity. Further, the trial judge could have determined to exclude the testimony for the reason that its prejudicial effect outweighed its probative value. See Tex.R.Crim. Evid. 403. For each and all of these reasons, I believe the trial court was correct in its ruling.
Assuming, but not conceding, that it was error for the trial court to have excluded the evidence of the victim’s prior sexual activity, I disagree that it would have been harmful error. I agree with the majority opinion in using the harm analysis in Harris v. State, 790 S.W.2d 568, 588 (Tex.Crim.App.1989). In this ease, the appellant testified during the guilt-innocence phase that he did not massage the victim’s shoulders or her breasts. The appellant further testified and introduced another witness that he was elsewhere in the school building tending to other matters when the incident was alleged to *207have occurred. Essentially, his defense was that he did not commit the alleged indecent behavior. Therefore, the promiscuity of the victim was irrelevant if he was to be believed. If the appellant had admitted the crime, the exclusion of proper promiscuity evidence in all probability would have disrupted the jurors’ orderly evaluation of the evidence; however, since his position was that he did not commit the indecent behavior, the introduction of evidence of promiscuity would be contradictory to his position and tend to confuse the jury.
In addition, it would seem probable that on any re-trial of this matter that pursuant to Rule of Criminal Evidence 404(b) that the extraneous offenses involving similar indecencies with other students would be admissible during the guilt-innocence phase of the trial.
For these reasons, I would find the error, if any, to be harmless and affirm the conviction.
. (c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
. At the time of the alleged offense, the appellant was the assistant principal at Robinson High School. He had a masters degree in counseling and education. The minor victim was a ninth grade student who had been referred to him by the choir teacher for chewing gum. The minor victim’s disciplinary record indicated that she had been sent to his office on other occasions for disciplinary reasons. It was at these "counseling” sessions that the appellant learned the names of the two boyfriends that his attorney questioned the victim about in the hearing concerning admissibility of evidence of promiscuity. The appellant also testified that he had previously worked as a student counselor at Waco Christian Academy for three years. In this case, he admits to sitting behind his desk during the disciplinary meeting in order to put a barrier between himself and the student to create an authority figure setting. Then at the second meeting when the alleged indecent behavior occurred, he preferred a “counselling setting” where he was seated beside the student so that the barriers would be removed. Prior to this incident, the victim testified that she trusted the appellant and considered him a friend because she could confide in him. It is obvious that in his dealings with the victim that he was using his skills as a professional counselor. Likewise, it is alarming that he may use the information he obtained while employing his "counseling” techniques against this ninth grade girl in an attempt to raise the affirmative defense of promiscuity. Is this not a blatant ethical violation of confidentiality between a counselor and a client? See Tex.Health & Safety Code Ann. § 611.002-611.005 (Confidentiality, Legal Remedies for Improper Disclosure, etc.). From the testimony, we may infer that the appellant was a licensed counselor in view of his having been employed by a private school for three years as a counselor. A licensed counselor must follow state regulations concerning confidentiality, as follows:
(b) A licensee shall not disclose any communication, record, or identity of a client except as provided in the Health and Safety Code, Chapter 611, or other state or federal rules. (Emphasis added)
22 Tex.Admin.Code § 681.36(b) (West Pamph. 1996 — Confidentiality).