May v. State, 919 S.W.2d 422 (Tex. Crim. App. 1996). · Go Syfert
May v. State, 919 S.W.2d 422 (Tex. Crim. App. 1996). Cases Citing This Book View Copy Cite
88 citation events (68 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Cited for
At page 424 Distinguishing legal from factual consent for minors22 citing casesexplaining “that a child under fourteen cannot legally consent to sex, because subsection (a)(2) [of Section 22.011 of the Penal Code] is a strict liability offense not requiring proof that the victim did not consent8 citing courts put it this way · 21 listed here
  • Juan Antonio Rodriguez v. State, No. 02-18-00057-CR, 2019 WL 406167 (Tex. App.—Fort Worth Jan. 31, 2019).unpublished
    ([I]t is true that a child under fourteen cannot legally consent to sex[.])
  • Joseph Anthony Riley v. the State of Texas, No. 03-23-00137-CR (Tex. App.—Austin Feb. 21, 2025).unpublished
    (explaining “that a child under fourteen cannot legally consent to sex, because subsection (a)(2) [of Section 22.011 of the Penal Code] is a strict liability offense not requiring proof that the victim did not consent)
  • State of Texas v. R.R.S., a Juv., 597 S.W.3d 835 (Tex. 2020).published
    We reversed, holding that B.W. could not have committed the offense of prostitution because “in Texas, ‘a child under fourteen cannot legally consent to sex.’” Id. at 821 (quoting May v. State, 919 S.W.2d 422, 424 (Tex. Crim.
  • in the Matter of T.V.T., 651 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2019).published
    “a child under fourteen cannot legally consent to sex”
  • Gerardo Solis, Osmin Turcios, Chipotle Mexican Grill of Colorado, LLC, & Chipotle Mexican Grill, Inc. v. S. V.Z., Individually & as Next Friend of A.Z., Her Minor Child, 566 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2018).published
    “permission, willingness, voluntariness, agreement, acquiescence, or assent”
  • Guerrero, Damien, No. PD-0669-15 (Tex. Crim. App. July 22, 2015).unpublished
    May v. State, 919 S.W.2d 422, 424 (Tex. Crim.
  • Damien Guerrero v. State, No. 02-13-00611-CR (Tex. App.—Fort Worth Mar. 26, 2015).unpublished
    May v. State, 919 S.W.2d 422, 424 (Tex. Crim.
  • in the Matter of O. D. T., a Child, No. 13-12-00518-CV (Tex. App.—Corpus Christi Feb. 7, 2013).published
    In support of this proposition, he cited In re B.W., 313 S.W.3d 818 (Tex. 2010), in which the Texas Supreme Court ruled that a child under 14 years of age could not be prosecuted for prostitution because “in Texas, ‘a child under fourteen…
  • Joe Richard Jasso v. State, No. 13-09-00554-CR (Tex. App.—Corpus Christi Jan. 6, 2011).unpublished 2 cites
    In Texas, ―a child under fourteen cannot legally consent to sex.‖ May v. State, 919 S.W.2d 422, 424 (Tex. Crim.
  • In re B.W., 313 S.W.3d 818 (Tex. 2010).published 5 cites
    “a child under fourteen cannot legally consent to sex”
Show 11 more citing cases
At page 423 Determining relevance of prior sexual conduct for promiscuity defense11 citing cases“a child under fourteen cannot legally consent to sex.”4 citing courts quote it
  • Paul Anthony Nix v. State, 401 S.W.3d 656 (Tex. App.—Houston [14th Dist.] 2013).published 2 cites
    May v. State, 919 S.W.2d 422, 423 (Tex.Crim.App.1996).
  • State v. Deyo, 2006 VT 120, 915 A.2d 249.published
    In addition to Hillhouse , decisions that are inconsistent with the majority opinion, particularly in Hazelton , include People v. Tobias, 25 Cal.4th 327 , 106 *267 Cal.Rptr.2d 80, 21 P.3d 758, 758 (2001) [13] (the antecedent for Hillhouse…
  • State v. Hazelton, 2006 VT 121, 915 A.2d 224.published
    In addition to Hillhouse , decisions that are inconsistent with the majority opinion, particularly in Hazelton, include People v. Tobias, 25 Cal.4th 327 , 106 Cal.Rptr.2d 80 , 21 P.3d 758, 758 (2001) [16] (the antecedent for Hillhouse ); D…
  • State v. Hazelton, 2006 VT 121, 915 A.2d 224.published
    Ct. 2003); and May v. State, 919 S.W.2d 422,423-24 (Tex. Crim.
  • State v. Deyo, 2006 VT 120, 915 A.2d 249.published
    Ct. 2003); and May v. State, 919 S.W.2d 422, 423-24 (Tex. Crim.
  • Lewis v. State, 30 S.W.3d 510 (Tex. App.—Amarillo 2000).published
    Because authority prohibits us from construing it to have such an effect, May v. State, 919 S.W.2d 422, 423 (Tex.Crim.App.1996), we hold that arrest under section 38.03(a) does not encompass aspects of transportation.
  • Waits v. State, 9 S.W.3d 904 (Tex. App.—Fort Worth 2000).published
    (It is presumed that in enacting a statute, all words in the statute were intended to be effective.)
  • Landry v. State, 958 S.W.2d 942 (Tex. App.—Beaumont 1998).published
    (exeluded testimony that since age 12 child had been sexually active with seven men)
  • Yzaguirre v. State, 938 S.W.2d 127 (Tex. App.—Amarillo 1997).published
    May v. State, 919 S.W.2d 422, 423 (Tex.Cr.App.1996).
  • Suzanne Kearns Dewalt v. State, 417 S.W.3d 678 (Tex. App.—Austin 2013).published
    (It is presumed that in enacting a statute, all words in the statute were intended to be effective.)
Show 1 more citing case
  • Campbell v. State, 2 S.W.3d 729 (Tex. App.—Houston [14th Dist.] 1999).published
    (It is presumed that in enacting a statute, all words and parts of the statute were intended to be effective.)
Other citing cases3 with no pin cite or quoted language on record
Kinnard Joseph MAY, Appellant,
v.
the STATE of Texas, Appellee
1031-95.
Court of Criminal Appeals of Texas.
Mar 27, 1996.
Published opinion
919 S.W.2d 422
1996 Tex. Crim. App. LEXIS 32
1996 WL 135627
Merry A. Worley, Sherman, for appellant., Rick Dunn, Assist. Dist. Atty., Sherman, Robert A. Huttash, State’s Atty., Austin, for the State.
Overstreet.
Cited by 44 opinions  |  Published

[*423] OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

A jury convicted Appellant of sexual assault and assessed Ms punisliment at confinement for fifteen years in the penitentiary. The conviction was affirmed. May v. State, 903 S.W.2d 792 (Tex.App.—Dallas 1995). We granted discretionary review to determine whether the promiscuity defense was available when the complainant was fourteen years old at the time of the offense but the alleged promiscuous conduct occurred before she reached fourteen. We will reverse.

Appellant was charged under V.T.C.A. Penal Code, § 22.011(a)(2), with intentionally and knowingly causing the penetration of the female sexual organ of a child. A child is defined as a person under seventeen years of age not the spouse of the actor. V.T.C.A. Penal Code, § 22.011(c)(1). The trial court excluded testimony that the complainant, who was fourteen at the time of the offense, had intercourse with at least seven males from the time she was twelve until she reached fourteen. Appellant contended tMs evidence was admissible and relevant to the promiscuity defense. [1]

The Court of Appeals held that evidence of the complainant’s previous sexual activity prior to reaching age fourteen was not relevant and therefore inadmissible because the promiscuity defense was not available under those circumstances. The Court of Appeals held that promiscuity necessarily requires that the conduct be consensual, citing Wicker v. State, 696 S.W.2d 680 (Tex.App.—Dallas 1985), aff'd, 740 S.W.2d 779 (Tex.Cr.App.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 278 (1988). It also noted that a child under age fourteen is legally incapable of consenting to sexual conduct, citing Hernandez v. State, 651 S.W.2d 746 (Tex.Cr.App.1983). It concluded that sexual intercourse with a child under fourteen is non-consensual, and thus, such a child cannot be promiscuous as a matter of law. May, 903 S.W.2d at 794.

When construing a statute, this Court is bound to give effect to the collective intent of the legislature in enacting the statute. Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991). We have determined that interpreting legislative intent requires that we give effect to the literal, plain meaning of the language used. Id. at 785. ‘Words and phrases shall be read in context and be construed according to the rules of grammar and common usage.” Section 311.011(a), Code Construction Act; see also V.T.C.A. Penal Code, § 1.05(b) (Section 311.011 of the Code Construction Act applies to the Penal Code). It is presumed that in enacting a statute, all words in the statute were intended to be effective. Polk v. State, 676 S.W.2d 408 (Tex.Cr.App.1984). This Court has held that it will resort to examination of extratex-tual factors to discern legislative intent only if the statute is ambiguous or literal interpretation would lead to absurd results wMch the legislature could not possibly have intended. Boykin, 818 S.W.2d at 785-86.

Here, applying the literal wording of the statute, the legislature did not explicitly limit the availability of the defense to situations in wMch the prior sexual conduct occurred after the complainant reached age fourteen. The limitation applies to the age of the complainant when the offense being prosecuted occurred. The only explicit time restriction relating to the prior sexual conduct is that it must have occurred prior to the offense. Therefore, reading the statute literally, as long as the victim was over fourteen when the offense occurred, promiscuous behavior occurring prior to the time of the offense— even that wMch occurred prior to age fourteen — was available to prove the defense.

The Court of Appeals held that a literal interpretation fails to give effect to the plain meaning of the word promiscuous. It reasoned that because a child under fourteen cannot legally consent to sex and promiscuity[*424] connotes consensual behavior, a child under fourteen cannot be promiscuous. While both premises in the Court of Appeals’ syllogism are true, the conclusion reached is fallacious because the meaning of consent is different under each premise.

First, it is true that a child under fourteen cannot legally consent to sex, because subsection (a)(2) is a strict liability offense not requiring proof that the victim did not consent. Even if the victim consented in fact, that consent is not given any legal effect and provides no defense. Second, although “promiscuously” is not defined in the statute, we agree that the term implies consensual behavior. However, in ascertaining the ordinary meaning of promiscuity, we are not concerned with legal consent as a term of art, but with consent in its ordinary usage, 1.e., permission, willingness, voluntariness, agreement, acquiescence, or assent. That the child’s prior agreement to participate in sexual activity before age fourteen was not legally consensual does not mean it was involuntary or without permission. Thus, allowing evidence of willing participation in prior sexual conduct by a child under fourteen to support a promiscuity defense gives effect to the plain meaning of promiscuity. [2]

A literal interpretation of the statute gives effect to all the words in the statute and is not ambiguous. We also conclude that this interpretation does not lead to absurd results which the legislature could not have intended. [3] The Court of Appeals erred by failing to give effect to the plain meaning of the statute, and concluding that sexual conduct by a child prior to the age of fourteen can never, as a matter of law, be promiscuous. Accordingly, we reverse the judgment of the Court of Appeals and remand the cause to that court for disposition consistent with this opinion.

1

. The promiscuity defense was abolished effective September 1, 1994. However, Appellant’s offense occurred before the date of its repeal. At the time of the offense, V.T.C.A. Penal Code, § 22.011(d)(1) (repealed) provided, "It is a defense to prosecution under Subsection (a)(2) of this section 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 conduct described in that subsection.”

2

. In Norman v. State, 89 Tex.Crim. 330, 230 S.W. 991 (1921), the defendant was charged with statutory rape. The statute provided, “If the woman is fifteen years or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.” Acts of the Thirty-Fifth Legislature, Fourth Called Session, c. 50. The court held that the defense was not restricted to previous unchaste conduct of the complainant after age 15, and that such a limitation would be incompatible with the wording of the statute. It quoted from an opinion of another state court reaching the same conclusion, which held that when its legislature referred to previous unchaste character it was referring to "chastity in fact, according to the popular sense of that word." People v. Nelson, 153 N.Y. 90, 46 N.E. 1040, 60 Am.St.Rep. 596 (1897).

3

. That the legislature has since abolished the promiscuity defense does not impact our interpretation of its intent at the time the defense was enacted.