May v. State

*793OPINION

WEIGHT, Justice.

The sole issue in this appeal is whether evidence of a complainant’s promiscuous conduct occurring before 'the complainant is fourteen years old is admissible as a defense to sexual assault of a child fourteen or older. We conclude such evidence is not admissible. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

Appellant and complainant met in February 1993. Complainant and appellant became friends. Two months later, complainant, her uncle, and his common law wife moved next door to appellant. Complainant visited appellant in his trailer daily. At some point, appellant asked complainant to “go steady” and gave her a bracelet. On June 5, 1998, appellant and complainant had sex for the first time. Complainant was fourteen years old, and appellant was thirty-eight.

The State charged appellant with sexual assault of a child. At trial, appellant sought to raise the promiscuity defense established by section 22.011(d)(1) of the Texas Penal Code.1

In a bill of exceptions, complainant testified she had been sexually active since age twelve. One of complainant’s sexual partners was a minor; he was sixteen. Prior to the age of fourteen, complainant had sexual relations with at least seven men, ranging in age from twenty-one to forty. She had sex with one person (the sixteen-year-old) other than appellant, after she became fourteen.

The trial court refused to allow the evidence of the complainant’s sexual activity before she became fourteen. The jury convicted appellant of sexual assault of a child. The trial court assessed a fifteen year sentence.

PROMISCUITY DEFENSE

1. Standard of Review

The determination of admissibility of evidence is within the sound discretion of the trial court. Holloway v. State, 751 S.W.2d 866 (Tex.Crim.App.1988); Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1986). We do not reverse the trial court’s decision unless a clear abuse of discretion is shown. Holloway, 751 S.W.2d at 870; Werner, 711 S.W.2d at 643. An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). Stated another way, a trial court abuses its discretion when the court acts arbitrarily or unreasonably. Montgomery, 810 S.W.2d at 380. Thus, our interpretation of the penal code section that established the “promiscuity defense” will determine whether the trial court abused its discretion.

2. Statutory Interpretation

Interpretation of a statute must serve to effectuate the legislative intent underlying the statute’s enactment. Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App.1992); Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Crim.App.1991). We presume the legislature intended effect be given the entire statute. Heckert v. State, 612 S.W.2d 549, 552 (Tex.Crim.App. [Panel Op.] 1981). When examining amendments to existing legislation, we presume legislative awareness of case law affecting or relating to the statute. Grunsfeld, 843 S.W.2d at 523.

Case law sets up a policy of statutory interpretation by focusing on the literal text of the statute to discern its fair meaning. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). We read words and phrases in a statute in context and construe them according to rules of grammar and common usage. Pettijohn v. State, 782 S.W.2d 866, 868 (Tex.Crim.App.1989). Further, the rules of statutory construction presume each word in a statute is used for a purpose. Polk v. State, 676 S.W.2d 408, 410 (Tex.Crim.App.1984).

*7943. The Statute

The offense of sexual assault of a child occurs when a person intentionally or knowingly causes the penetration of the female sexual organ of a person younger than seventeen years of age by any means. TexPenal Code ANN. § 22.011(a)(2)(A) (Vernon 1994). It is a defense to prosecution that “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 sexual conduct. Act of June 19, 1983, 68th Leg., R.S., ch. 977, § 3, 1968 Tex.Gen.Laws 5311, 5314 (amended 1993) (current version at TexPenal Code Ann. § 22.011 (Vernon 1994)).

4. Application of Law to Facts

Appellant argues that all evidence of the complainant’s sexual conduct before the date of the offense is admissible regardless of the complainant’s age. Appellant bases his argument on the plain language in the statute, i.e., “prior to the time of the offense engaged promiscuously” in sexual conduct. Act of June 19, 1983, 68th Leg., R.S., ch. 977, § 3, 1968 Tex.Gen.Laws 5311, 5314 (amended 1993) (emphasis added). He contends this language has no words of limitation, thus, the trial court should have admitted the evidence. We disagree.

We interpret the statute based upon existing case law as it relates to the term “promiscuous.” “Promiscuity” is defined as the indiscriminate granting of sexual favors to members of the opposite sex without any requirement of love. Ramos v. State, 819 S.W.2d 939, 941 (Tex.App.—Corpus Christi 1991, pet. ref'd). Promiscuity “connotes a variety of consensual sexual conduct with a variety of partners continuing over a reasonable period of time.” Wicker v. State, 696 S.W.2d 680, 682-83 (Tex.App.—Dallas 1985), aff'd, 740 S.W.2d 779 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938, 108 5.Ct. 1117, 99 L.Ed.2d 278 (1988) (emphasis added). Victims under fourteen are “legally incapable of giving consent to sexual intercourse.” Hernandez v. State, 651 S.W.2d 746, 753 (Tex.Crim.App.1983) (construing the predecessor to section 22.011, section 21.09 of the Texas Penal Code, which was codified in 1974) (emphasis added).

Because a person under the age of fourteen cannot legally consent to intercourse, and promiscuity is by definition consensual, the child’s sexual activity before reaching fourteen years of age is “non-consensual.” Sexual intercourse with any child younger than the age of fourteen years is rape. A rape of a child cannot be promiscuity as a matter of law. If we reach the conclusion appellant advances, we would disregard case law and fail to give meaning to the word “promiscuous.” See Polk, 676 S.W.2d at 410. Therefore, we conclude evidence of the victim’s sexual activity before reaching the age of fourteen is not admissible under this statute’s “promiscuity defense.” We conclude the trial court did not abuse its discretion in refusing to allow evidence of the complainant’s sexual activity before becoming fourteen years old. Accordingly, we overrule appellant’s sole point of error.

We affirm the trial court’s judgment.

. Act of June 19, 1983, 68th Leg., R.S., ch. 977, § 3, 1968 Tex.Gen.Laws 5311, 5314 (amended 1993). Appellant could plead the promiscuity defense because the date of the offense was before September 1, 1994, when the legislature abolished the promiscuity defense. The promiscuity defense was eliminated for sexual assault offenses that occurred after September 1, 1994 by the 1993 amendment. See TexPenal Code Ann. § 22.011 (Vernon 1994) for current version.