Pawson v. State , 1993 Tex. Crim. App. LEXIS 163 ( 1993 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury convicted appellant Ralph Wilbur Pawson of sexually assaulting a child, and assessed his punishment at twelve years’ confinement and a $10,000 fine. Y.T.C.A., Penal Code, Section 22.011(a)(2)(A). On direct appeal, the Court of Appeals reversed the conviction, and remanded the cause for a new trial. Pawson v. State, No. 2-89-007-CR (Tex.App.—Fort Worth, delivered January 31, 1990) (nonpublished). We granted the State’s petition for discretionary review to determine whether in a prosecution under V.T.C.A., Penal Code, Section 22.011(a)(2), a defendant must claim the victim consented as a prerequisite to raising the promiscuity defense under V.T.C.A., Penal Code, Section 22.011(d)(1).

In Hernandez v. State, 861 S.W.2d 908, (Tex.Cr.App., 1993), this Court decided the issue adversely to the State and, in effect, held consent is irrelevant to a prosecution under Section 22.011(a)(2). Id., at 910. Therefore, we overrule the State’s ground for review, and affirm the judgment of the Court of Appeals.

WHITE, J., dissents with note:

I respectfully dissent for the reasons set out in the dissenting opinion in Hernandez v. State, 861 S.W.2d 908 (Tex.Cr.App., 1993).

BAIRD, J., joins the opinion but dissents to the decision to publish. MEYERS, J., not participating.