dissenting.
The majority opinion holds that a seventy-year-old man who has non-consensual intercourse with a sixteen-year-old female is entitled to an acquittal if the female had previously engaged in consensual sexual intercourse with three or four boys of her own age. To such holding, I respectfully, but vigorously, dissent.
What the majority opinion fails to state is that appellant never testified. Further, the majority opinion does not reveal that appellant never disputed, in any fashion, the repeated statements of the complainant on both direct and cross-examination that she did not willingly engage in the sexual acts but that she did so because of her fear of both her mother and appellant. This fear is exemplified by the testimony of her grandmother whom the complainant called from a pay telephone when she escaped from appellant’s apartment in Houston. Her grandmother, whom appellant did not even question on cross-examination, testified the complainant called her about 9:30 p.m. on February 12, 1985, in Leslie, Michigan by long distance collect, crying. The record shows the following testimony by the grandmother:
A: She said, “Grandma, send me some money, I’m trying to get out of here.
I said, “Where are you?”
She said, “I’m in Houston.”
I said, “Whereabouts?”
And she said, “I don’t know the address. All I know, I’m in Houston.”
And she said, “My body’s been sold and I want to get out of here as quick as I can.”
Q: Did that upset you to hear that?
A: Oh, did it. I said, “Whereabouts in Houston are you, Barb? Where are you calling from?”
She said, “From a pay phone on a comer.”
And I said, “Look out there and see what the name of the street is.”
So she did. She said, “It’s Fannin.”
I said, “Oh my gosh, Barb, I’m so far away from there I can’t get to you right away.”
She said she had one hour to get out of there.
Q: Did you tell her what to do?
A: I told to write this number down and it’s unlisted and you can’t get it any other way.
Q: What number?
A: Aunt Betty’s number.
Q: Where did she live?
A: Splendora, I believe, at that time. And I said, “Now remember, you call this number because you can’t get it any other way.” So she hollered and asked somebody if they had a pencil or pen of something so she could write with. And she told me later that nobody had any. So she made up her mind she was going to have to remember it. So she said she wrote the number with her fingers and she remembered the number so she turned right around and called Aunt Betty. “Now Aunt Betty will be getting home from work right now, so call her.” She did.
Q: Did you hear from Barbara again after that call?
A: Yes. I called after Betty picked her up. I kept calling down here to make sure they made connections all right.
The complainant called her aunt who then came and got her at the street intersection she had given her aunt and where her aunt found her hiding behind a building. Further the majority opinion fails to state that the complainant had not used the telephone in appellant’s home in San Antonio or his apartment in Houston because appellant had told her that he had a recorder on the phones and would know she had made telephone calls. Finally, the majority opinion does not detail the facts as related by the complainant that she was held a virtual prisoner in both appellant’s home in San Antonio and his apartment in Houston because each was protected by burglar bars and an iron locked gate that she could not reenter if she left the house.
I respectfully disagree with the analysis of the applicable law by the majority. It has long been the law in this state that where the sexual intercourse was with a female under the age of consent, prior *329promiscuous conduct is a defense only when consent is an issue in the case. Wright v. State, 527 S.W.2d 859, 863 (Tex.Crim.App.1975); Esquivel v. State, 506 S.W.2d 613, 616 (Tex.Crim.App.1974). As we said in Moore v. State, 703 S.W.2d 762, 764 (Tex.App.—Houston [14th Dist.] 1985, no pet.)
Of course, these cases construe the predecessor to section 21.09, Tex.Penal Code Ann. art. 1183 (Vernon 1925). However, we believe the legislature did not intend to change this requirement when they codified the penal code in 1974.
There we held that even if a female between the ages of 14 and 17 had previously engaged in sexual intercourse, such evidence was not admissible unless consent was in issue. See also Lewis v. State, 709 S.W.2d 734, 735 (Tex.App.—San Antonio 1986, pet. ref'd, untimely filed). And the court of criminal appeals in Hernandez v. State, 651 S.W.2d 746, 753 (Tex.Crim.App.1983) pointed out that the purpose in revisions of the rape statutes has been to make prosecution of rape cases less difficult. While the court was there addressing the issue of whether corroboration of the minor victim was required, the language is appropriate to the issue before us. There the court stated:
Surely, we cannot attribute to the Legislature an intention to protect a certain class of victims, such as children, on the one hand, and also attribute to that body an intention to make those same victims as criminally culpable as those persons against whom that protection is designed to shield.
Hernandez, 651 S.W.2d at 753. While I acknowledge that § 22.011(d) does not specifically state that prior promiscuity is a defense only when consent is in issue, the law has always so provided. I would find it difficult to allow evidence of prior promiscuous conduct in a case where the victim was a minor when evidence that the victim was a prostitute would be inadmissible in a sexual assault case where the victim was an adult. Holloway v. State, 751 S.W.2d 866 (Tex.Crim.App., 1988). Paraphrasing the language of the court of criminal appeals in Hernandez, 651 S.W.2d at 754, without compelling indicia that the legislature intended to obliterate such a distinction founded in reason, I would hold that § 22.011(d) embraces the requirement, as always, that before the previous promiscuity of a female between the ages of 14 and 17 can be a defense to a charge of sexual abuse, there must be evidence that she consensually participated. Appellant’s first and second points of error should be overruled.
I also disagree with the majority’s holding that the admission of the photograph of appellant posing in the nude was reversible error. To put the matter in the proper context, it is important to look to the testimony. Dr. Franklin Rivers, who practiced internal medicine, testified that he had been treating appellant for some fifteen or twenty years and, “as a rule, I would see him at least once a year.” When asked about whether he had occasion to treat appellant for any “sexual dysfunction,” the doctor stated appellant “had a problem with impotence and inability to perform” and explained:
That was quite a number of years ago that he first mentioned it to me off the record. It was an embarrassing subject to him, and he had never mentioned it, though, as he was leaving the office on one occasion he questioned me about possible causes of such problems. And that was discussed very briefly on that occasion. Then four years ago he also spoke of this. He was at that time, let’s see, that was in November of ’82. He said that he was an absolute cripple. It was impossible for him and he wondered if there were any possiblity for treatment of such a condition.
The doctor further testified that he explained to appellant that he could be treated with injections or could be implanted with a prosthesis. It is noteworthy that the doctor testified that appellant did not elect to have “the injections or this prosthesis” and that even though the doctor testified that he gave appellant the names of two urologists, he did not think appellant ever contacted them.
*330Contrary to this testimony of the doctor, the complainant’s sister and mother (both called as witnesses by appellant) testified that “Anita”, appellant’s fiance, was living and “sleeping” with appellant at various times in both San Antonio and Houston. On cross-examination of the doctor, the prosecutor exhibited a photograph, described in the record as depicting appellant in the nude with an erection. (The exhibit accompanying the record is a xerographic copy of the photograph and it is impossible to discern that about which complaint is made.) The doctor identified the photograph as being a picture of appellant; that the photograph did show that his penis was “erect if that is what you wish to know,” but that he did not know when the picture was taken — it could have been “years ago.” On redirect examination the doctor opined the photograph was taken “considerally before [1982] when he was in better physical condition.”
When the prosecutor had the photograph marked for identification, the jury was removed and the following objection by appellant and response by the prosecutor was made:
MR. RAMSEY [appellant’s counsel]: What I anticipate this is to get in the back door what the State didn’t try to choose to get into the front door. This is a picture that we have no testimony as to when it was taken. I’ll be happy for the doctor to look at it. There was no testimony as to when it was taken, who took it, and you look at the picture and it’s completely different than Mr. Hernandez is. It is Mr. Hernandez and it’s a completely different picture and he looks completely different than he does today. I see no relevance to influence the jury on a photo that was taken many years ago to indicate when he might at one point be clearly able to perform and when he now can’t, according to the doctor. If the State has another picture, I’d be happy to see it.
MS. MANTOOTH [state’s counsel]: The only difference in Mr. Hernandez’s appearance and how he appears today, he doesn’t have any clothes in that picture and he certainly looks a little bit happier than he does in the courtroom. The doctor testified that he can’t have an erection and according to his findings can’t have an erection. I think this picture is going to show something a little different than that and it’s direct impeachment.
It is abundantly clear that the photograph had been sufficiently identified and that it was obviously relevant to the issue before the jury. The only disputed issue was whether appellant, as shown in the photograph, “looked completely different than he does today” as urged by appellant or whether “the only difference in [appellant’s] appearance and how he appears today, [is that] he doesn’t have any clothes in that picture and he certainly looks a little happier than he does in the courtroom,” as urged by the prosecutor. Obviously, the trial judge was in a position to observe and resolve that issue, which he did by admitting the photograph into evidence.
The admissibility of a photograph is conditioned on its identification by a witness as an accurate portrayal of facts relevant to the issue and on verification by such witness or a person of knowledge that the photograph is a correct representation of such facts. Goss v. State, 549 S.W.2d 404, 406 (Tex.Crim.App.1978); Haas v. State, 498 S.W.2d 206, 211 (Tex.Crim.App.1973); Rodriguez v. State, 666 S.W.2d 305, 311 (Tex.App.—San Antonio 1984, no pet.). A photograph, proved to be a true representation of the person, place, or thing which it purports to represent, is competent evidence of those things of which it is material and relevant for a witness to give a verbal description, Terry v. State, 491 S.W.2d 161, 163 (Tex.Crim.App.1973), and the admission in evidence of photographs must necessarily rest largely in the discretion of the trial judge, and his action will not be disturbed in the absence of a showing of an abuse of discretion. Terry, 491 S.W.2d at 163; Davis v. State, 687 S.W.2d 78, 82 (Tex.App.—Dallas 1985, pet. ref’d). The doctor testified that the photograph depicted appellant with an erection. The photograph was relevant for purposes of impeaching the doctor’s testimony that appel*331lant was impotent and incapable of having an erection. Cf. Lewis v. State, 676 S.W.2d 136, 139 (Tex.Crim.App.1984). The jury was not misled as to the timing of the picture since the doctor testified that the picture could have been taken much earlier than the occurrence of the offense with which appellant was charged. Furthermore, there was testimony in evidence, contrary to the doctor’s testimony, that appellant was in fact not impotent and could have an erection. There is no error in admitting a photograph where there is testimony admitted showing the same thing. Brown v. State, 696 S.W.2d 913, 914 (Tex.Crim.App.1985); Colston v. State, 727 S.W.2d 683, 686 (Tex.App.—Houston [1st Dist.] 1987, no pet.). After the photograph had been properly authenticated, the only objection which appellant had as to the photograph’s admissibility went to its weight rather than its admissibility. See Davis, 687 S.W.2d at 81-82. There is no showing of an abuse of discretion by the trial judge in not admitting the photograph, and, therefore, appellant’s third point of error should be overruled.
Finally, I disagree that the trial court erred in admitting evidence of the sexual conduct between the complainant and three other individuals other than appellant. The complainant testified that on each of the three occasions when she had sexual relations with the three older men, two of whom were friends of appellant, and on the other occasion a man with whom appellant was negotiating a lease of property, she engaged in the sexual intercourse while appellant was present and because appellant instructed her to do so. Each was done without her consent. On two of the occasions appellant benefitted by receiving $100 and on the other occasion he was negotiating the lease. As I view this evidence, it was admissible as part of the relevant facts and circumstances of the charged offense. Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986); Mann v. State, 718 S.W.2d 741, 743-44 (Tex.Crim.App.1986), cert. denied, — U.S. —, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987). I disagree reversible error was committed in admitting this evidence before the jury. Appellant’s fourth point of error should be overruled.
I would affirm the conviction.