dissenting.
The issue that is before this Court is not what we as judges on this Court might personally favor, but, instead, is whether our law permitted the jury to hear vital and favorable exculpatory “reputation” evidence from the appellant’s witness that related to the complaining witness having the reputation of being a common prostitute.1 It is undisputed, according to the complainant, that appellant committed forcible sexual intercourse. However, it is also undisputed, according to appellant, that any sexual act that occurred was consensual.
The record reflects that appellant offered the defense that the complainant approached him and agreed to perform oral sex on him for money, which he testified occurred. Evidence was adduced that showed that while he and the complainant were underneath a bridge in a muddy sewer pipe located in Fort Worth, appellant was caught in the act by a patrolling Fort Worth police officer.
To establish the fact that the complainant had the reputation of being a common prostitute, thus leaving the inference that for money she was willing to perform the sexual act at that location, appellant proffered testimony that the complainant had the reputation of being a common prostitute. The trial judge, however, refused to permit the jury to hear this favorable to the defendant exculpatory reputation testimony. I find that the trial judge clearly erred, and, given the Federal and State constitutional rights of the defendant to present favorable evidence that might establish his innocence, such error amounted to reversible error.
It is necessary to emphasize that the excluded testimony did not concern the *872complainant performing or engaging in any past sexual act as a prostitute. The excluded testimony went to her reputation for being a prostitute.
The Fort Worth Court of Appeals, see Holloway v. State, 695 S.W.2d 112 (Tex. App.—2nd 1985), held that the proffered testimony was not admissible, notwithstanding its finding that “evidence that the prosecutrix is a prostitute [sic] is more apt to be material to the issue of consent than evidence of other sexual activity. Therefore, in line with this reasoning we can say that the proffered testimony concerning a recent act(s) of prostitution [sic] had some bearing on the question of consent; thus satisfying the materiality element of sec. 21.13.” (117). I agree with this holding. However, the court of appeals also found that “it [could not] say that the evidence offered was sufficiently probative of the consent issue as to outweigh its highly inflammatory and prejudicial nature ...” (117). The court of appeals held that the trial judge did not abuse his discretion in excluding such testimony under the violent facts of this case. (117). I disagree with the latter holding.
The admissibility of the excluded favorable to the appellant reputation testimony evidence of the complainant is controlled not, as the majority asserts, by this Court’s decision of Cravens v. State, 687 S.W.2d 748 (Tex.Cr.App.1985), which held that “acts of prostitution are no more material than other acts of previous sexual conduct”, and further held that “an improper question because the inquiry was directed to a particular discernible business or occupation that was unlawful ... [is inadmissible evidence]”, (753), but instead is controlled by this Court’s decision of Mitchell v. State, 544 S.W.2d 927 (Tex.Cr.App.1977), which held that where the issue of consent is raised by the defendant, as occurred here, he is entitled to have a reputation witness testify that the complainant had the reputation of being a common prostitute. Sad to say, the majority opinion does not even mention Mitchell, supra, much less make an effort to distinguish it. Why is tiiis?
I find that Justice Levine of the Michigan Supreme Court hit the nail on the head when he stated the following in the dissenting opinion that he filed in People v. Williams, 416 Mich. 25, 330 N.W.2d 823 (Mich.1982):
“Some jurors might find it difficult to believe that a woman would agree to sexual intercourse with a man who approached her in a bar. Most jurors would find it incredible that a woman would agree to intercourse with four men in succession. Such behavior is likely to be considered most unusual and unlikely to occur voluntarily. Jurors might thus find Williams’ story more probable if it is shown that complainant previously had intercourse with him. Likewise jurors might regard it more believable that a woman would consent to sexual acts with four men in succession, if they heard evidence that complainant has had sexual intercourse with a number of men in succession on a professional basis. (Footnote omitted.) To be sure, a woman’s willingness to have sexual intercourse with one man on one or more occasions does not prove or even make it probable that she will consent to intercourse with that man and three others on some later occasion. Nor, I agree, does evidence that a woman is a prostitute establish or make it probable that she would be willing to have sexual intercourse without compensation with four men. (Footnote omitted.) But evidence need not make a conclusion probable in order to be relevant; it must only make the conclusion more probable than it would have been without the evidence.8
The major flaw that I find in the majority opinion is that it fails to consider the *873issue in light of appellant’s constitutional right to present to the jury exculpatory evidence that went to his defense of con-
It is now axiomatic that a criminal defendant has a fundamental right under the Federal Constitution to meet the State’s proof with whatever defensive evidence he can muster. See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974). Also see Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987). Thus, any State prohibition of such proffered exculpatory “reputation” defensive evidence or testimony, that is relevant and material to the issue, must yield to the defendant’s constitutional right to meet the State’s proof with whatever defensive evidence or testimony he can muster. The exculpatory “reputation” defensive testimony that appellant sought to have admitted before the jury was clearly probative, relevant and material on the issue of consent. Furthermore, given the nature of the proffered testimony, had it been admitted into evidence for the jury’s consideration, the prejudice to the complainant, resulting from the disclosure to the public of such evidence, would have been extremely minimal. Given the facts of this cause, I believe that it would be difficult, if not impossible, to besmirch either the character or reputation of the complainant. The proffered defensive “reputation” evidence was clearly admissible, and the trial judge erred in not admitting such evidence for the jury’s consideration. Appellant was presumptively harmed by such error, see Rule 81(b)(2), Rules of Appellate Procedure, and because it is not possible to state, beyond a reasonable doubt, that the error made no contribution to appellant’s conviction, appellant’s conviction should be set aside and a new trial granted.
For the above reasons, I respectfully dissent to the majority opinion’s holding that the trial judge did not reversibly err in failing to admit the proffered defensive reputation testimony.
. At least by Rule 412(a), Rules of Criminal Evidence, had trial occurred today, this evidence would not have been admissible. However, at the time of appellant’s trial, evidence on this issue was admissible "if it was material to a fact at issue in the case and its inflammatory or prejudicial nature does not outweigh its probative value." V.T.C.A., Penal Code, § 22.065, which is the renumbering of § 21.13.
. The question is not whether it is probable that a woman who consented in the past would consent again, but whether the defendant’s story is more probable if complainant had consented in the past than it would be if she has not consented in the past. Similarly, the question is not whether it is probable that a prostitute would consent to sexual intercourse with four men in succession, but whether it is more probable that a prostitute would do this than a woman who is not a prostitute.