Robert William Auler v. State

Auler v. State 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error, Auler argues the trial court erred in failing to give an instruction to the jury on the statutory defense, since repealed by the Legislature, of the minor victim's promiscuity.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 Do not publish amily:"CG Times";mso-fareast-font-family:"CG Times";mso-bidi-font-family: "CG Times"'>1.     threatens another with imminent bodily injury; 2.     in retaliation against another; and 3.     Olivas was the perpetrator of the assault. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(3) (Vernon Supp. 2004-2005). We find that McGowan v. State controls the disposition of this appeal. McGowan v. State, 664 S.W.2d 355 (Tex. Crim. App. 1984). In this case, as in McGowan, the victim, Kim Tunnell, did not perceive the threat at the time the offense occurred. Kim specifically testified contrary to the State’s indictment that she heard pops and thought the sounds came from rocks. It was only after the offense occurred that she discovered the bullet hole in her pickup. Viewing the evidence under the appropriate standard of review, we find the evidence legally insufficient to support a crucial element of the offense, that Kim Tunnell was threatened with imminent bodily injury. See Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex. Crim. App. April 21, 2004). We need not address Olivas’s remaining arguments under this issue. Olivas’s first issue is sustained.          Olivas next contends the evidence is legally and factually insufficient to support his conviction for stalking because Kim Tunnell was not placed in fear of bodily injury or death when Olivas told her in a voicemail to “count your friggin’ hours.” One element of stalking is that the defendant causes another to be placed in fear of bodily injury or death. Tex. Penal Code § 42.072(a)(2) (Vernon 2003). Although Kim, at one point, testified that she did not feel physically threatened at the time of the message, she also testified that she felt threatened and that physical and bodily harm was a possibility. Viewing the evidence under the appropriate standards of review, we find the evidence both legally and factually sufficient to support the conviction. See Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex. Crim. App. April 21, 2004) (legal sufficiency standard of review); Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004) (factual sufficiency standard of review). Olivas’s second issue is overruled. Confrontation Clause In his third issue, Olivas argues that the trial court erred in excluding relevant evidence of a prior assault charge filed against Kim Tunnell. Because of this alleged error, Olivas contends his right to confront witnesses was denied. The trial court ruled that the evidence was irrelevant. See Tex. R. Evid. 401. Olivas presents no argument as to why that ruling was incorrect. He only assumes the evidence was relevant. Olivas does not contend that the Confrontation Clause may occasionally require the admissibility of evidence that the Rules would exclude. See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). This issue presents nothing for review. Long v. State, 137 S.W.3d 726, 737 (Tex. App.—Waco 2004, pet. ref’d). Conclusion          Having sustained Olivas’s first issue, we reverse the trial court’s judgment of conviction for aggravated assault (retaliation) by threat and render a judgment of acquittal for that offense. Additionally, having overruled every other issue properly presented on appeal, we affirm the trial court’s judgment as to the conviction for stalking.                                                                                       TOM GRAY                                                                                      Chief Justice  Before Chief Justice Gray,          Justice Vance, and          Justice Reyna Affirmed in part, reversed and rendered in part Opinion delivered and filed November 10, 2004 Do not publish [CRPM]