DocketNumber： 10-02-00354-CR
Filed Date： 3/17/2004
Status： Precedential
Modified Date： 9/10/2015
IN THE
TENTH COURT OF APPEALS
No. 10-02-00354-CR
CHARLIE LOUIS SHAVERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court # 9893-A
MEMORANDUM OPINION
Charlie Shavers was convicted of assault on a family member in a bench trial. The court found him guilty and assessed punishment at seven years in prison. On appeal, his sole issue is that the court should have granted his request for a free psychiatric evaluation when the issue of insanity was raised.
Shavers’ appointed counsel filed a motion for continuance stating that Shavers had recently been diagnosed with a mental impairment and requesting time to acquire the services of an expert witness. At the hearing on the motion, Shavers testified that he had recently attempted suicide and had an appointment scheduled with MH-MR on the day of trial. He also testified that he was unemployed and did not have the financial means to obtain such an evaluation. The State points out that Shavers did not raise the issue timely.
The Penal Code provides that insanity may be raised as a defense to a criminal prosecution. Tex. Pen. Code Ann. § 8.01 (Vernon 2003). However, the Code of Criminal Procedure requires that the defendant give notice of his intention to raise the defense. Tex. Code Crim. Proc. Ann. art. 46.03 § 2(a) (Vernon Supp. 2004). The court may, on a finding of good cause for failure to give a timely notice, allow evidence of insanity. Id. § 2(b) (Vernon Supp. 2004). We review the court’s determination of good cause for an abuse of discretion. See Wagner v. State, 687 S.W.2d 303, 306 (Tex. Crim. App. 1984) (“The trial court has the discretion to decide whether good cause is present for failure to file timely.”).
Shavers never filed the statutory notice. Our review of the record convinces us that the trial court acted within its discretion in refusing to allow Shavers to develop an insanity defense in the absence of a timely notice. Because this defense was not available, the court did not err in refusing his request for an evaluation by an expert. The issue is overruled.
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed March 17, 2004
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[CR25]
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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