Robert William Auler v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-94-037-CR

ROBERT WILLIAM AULER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19906CR

O P I N I O N

Appellant Robert William Auler was tried and convicted on one count of sexual assault of a minor and sentenced to four years of confinement in the Texas Department of Corrections-Institutional Division with no fine. See Tex. Penal Code Ann. 22.011(a)(2) (Vernon 1989).

In two points of error, Auler argues the trial court erred in failing to give an instruction to the jury on the statutory defense, since repealed by the Legislature, of the minor victim's promiscuity. See id. 22.011(d). // We affirm.

Auler had sexual intercourse with the victim, a sixteen-year-old girl, on September 13, 1991. He met her several months prior to the date of the offense when he would assist her father and other men as they worked on a race car in her father's garage. Auler drove the car at a local racetrack during the summer racing season. The victim worked in the racetrack's concession stands and would watch Auler drive the race car. Also during the summer racing season, the victim would visit with Auler and his wife at her father's house when they would come to visit or to work on the race car. On several occasions the victim spent the night at the Auler's home because she enjoyed the time she spent with them. After the date of the offense, the victim went to the zoo once with the Aulers, and on another occasion after the date of the offense she went to an amusement park with some of her friends and Auler while Auler's wife worked.

On the evening of September 12, 1992, the victim went to the Auler's home to spend the night. The next morning, after Auler's wife left for work, Auler and the victim engaged in sexual intercourse.

Evidence was adduced at trial that the victim had been on a few dates with males other than the appellant before the date of the offense, that the victim had a boyfriend at the time of the offense, and that the victim periodically left roses on both the race car Auler drove and on the race car driven by another of her father's acquaintances. The victim provided uncontroverted testimony that Auler was the only person with whom she had ever had intercourse or engaged in "heavy petting." Auler testified that he believed, from the way the victim performed the sexual act, that she had previously engaged in sexual intercourse.

When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, -- U.S. --, 114 S. Ct. 116 (1993); Wimer v. State, 717 S.W.2d 468, 470 (Tex. App. San Antonio 1986, no pet.). The evidence which raises the issue may be either strong, weak, contradicted, unimpeached, or unbelievable. Muniz, 851 S.W.2d at 254. When the evidence fails, however, to raise a defensive issue, the trial court commits no reversible error in refusing a requested instruction. Id.

The evidence failed to raise the issue of the victim's promiscuity. Promiscuity connotes a variety of consensual contact with a variety of sexual partners over a reasonable period of time. Wicker v. State, 696 S.W.2d 680, 682-683 (Tex. App. Dallas 1985), affirmed, 740 S.W.2d 779 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1117 (1988) (quoting Scott v. State, 668 S.W.2d 901, 902 (Tex. App. Fort Worth 1984, pet. ref'd). Here, the evidence failed to indicate that the victim had engaged in sexual activity with anyone other than the appellant at any time before the date of the offense. See Wimer, 717 S.W.2d at 469-470 (to be promiscuous means to be sexually active with more than one person); Jasso v. State, 699 S.W.2d 658, 660 (Tex. App. San Antonio 1985, no pet.) (same). Furthermore, Auler's assertions that the victim was a promiscuous person merely because, at the time of the offense, she had a boyfriend, she had placed roses on his and another driver's race cars, and she had performed like an experienced participant in sexual activity are clearly insufficient to raise the promiscuity defense. See Wicker, 696 S.W.2d at 683 (two sexual acts, one being intercourse, before the date of the offense do not constitute promiscuousness and the trial court did not err in refusing to give a jury instruction on the promiscuousness defense).

Because we find the evidence adduced at trial failed to raise any issue of the victim's promiscuity, we conclude the court did not err in refusing to give a jury instruction on the promiscuity defense. Auler's points of error are overruled, and the judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 28, 1994

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