Because searches for "mere evidence" were impermissible in 1965, Chapter is did not contemplate such a search. Scoggan v. State, 736 S.W.2d 239, 244 (Tex.App.-Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App. 1990). Six years after the Supreme Court's Haydendecision, Chapter 18 was amended.
It is axiomatic that an appellate court must always address challenges to the sufficiency of the evidence, even though a reversal may be required on other grounds. Garza v. State, 715 S.W.2d 642, 642 (Tex.Cr.App. 1986); Jefcoat v. State, 644 S.W.2d 719, 723 (Tex.Cr.App. 1982); Horne v. State, 607 S.W.2d 556, 562 (Tex.Cr.App. 1980); Rains v. State, 604 S.W.2d 118, 120 (Tex.Cr.App. 1980); Watson v. State, 605 S.W.2d 877, 880-881 (Tex.Cr.App. 1980); Winn v. State, 871 S.W.2d 756, 758 (Tex.App. — Corpus Christi 1993); Birl v. State, 763 S.W.2d 860, 860 (Tex.App. — Texarkana 1988); Scoggan v. State, 736 S.W.2d 239, 240 (Tex.App. — Corpus Christi 1987); Scott v. State, 701 S.W.2d 692, 693 (Tex.App. — Fort Worth 1986); Forte v. State, 686 S.W.2d 744, 754 (Tex.App. — Fort Worth 1985); Troncosa v. State, 670 S.W.2d 671, 679 (Tex.App. — San Antonio 1984); Daniel v. State, 648 S.W.2d 354, 355 (Tex.App. — Dallas 1983); and, Madden v. State, 630 S.W.2d 380, 387 (Tex.App. — Amarillo 1982). This is because a successful challenge to the sufficiency of the evidence bars retrial and requires the entry of a judgment of acquittal.
Some courts of appeals have held that, during a search conducted pursuant to a warrant issued under article 18.02(10), the police may seize only those items specifically described in the search warrant even if they discover additional items that would otherwise fall within the plain-view exception. Young, 8 S.W.3d at 699; Scoggan v. State, 736 S.W.2d 239, 243–45 (Tex.App.-Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App.1990); see Tex.Code Crim. Proc. Ann. art. 18.01(d) (“Only the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 of this code or property, items or contraband enumerated in Subdivisions (1) through (9) or in Subdivision (12) of Article 18.02 of this code may be seized.”). But see Bower v. State, 769 S.W.2d 887, 906 (Tex.Crim.App.1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).
Some courts of appeals have held that, during a search conducted pursuant to a warrant issued under article 18.02(10), the police may seize only those items specifically described in the search warrant even if they discover additional items that would otherwise fall within the plain-view exception. Young, 8 S.W.3d at 699; Scoggan v. State, 736 S.W.2d 239, 243-45 (Tex. App.-Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex. Crim. App. 1990); see TEX. CODE CRIM. PROC. ANN. art 18.01(d) ("Only the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 of this code or property, items or contraband enumerated in Subdivisions (1) through (9) or in Subdivision (12) of Article 18.02 of this code may be seized."). But see Bower v. State, 769 S.W.2d 887, 906 (Tex. Crim. App. 1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991).
The Corpus Christi Court of Appeals has defined promiscuity as the "indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love." Connally v. State, 838 S.W.2d 646, 647 (Tex.App. — Corpus Christi 1992, no pet.); Ramos v. State, 819 S.W.2d 939, 941 (Tex.App. — Corpus Christi 1991, pet. ref'd); Scoggan v. State, 736 S.W.2d 239, 241 (Tex.App. — Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App. 1990); Ormand v. State, 697 S.W.2d 772, 773 (Tex.App. — Corpus Christi 1985, no pet.). This definition can be traced to an entry in Corpus Juris Secundum: "The word 'promiscuity' does not signify an isolated incident of sexual relations with one particular person, but denotes an indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love."
It is a defense to sexual assault if the child was, at the time of the offense, fourteen years or older and had engaged promiscuously in sexual activity before the time of the offense. Scoggan v. State, 736 S.W.2d 239, 241 (Tex.App. — Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App. 1991); Tex. Penal Code Ann. § 22.011(d)(1) (Vernon Supp. 1991). "Promiscuity" is not a defense to aggravated sexual assault.
In addition, a number of our sister courts have decided the promiscuity issue without even mentioning the issue of consent as a prerequisite. E.g., Scoggan v. State, 736 S.W.2d 239, 241 (Tex.App. — Corpus Christi 1987, no pet.) (stating the promiscuity defense without mentioning consent); Walker v. State, 727 S.W.2d 759, 761 (Tex.App. — Tyler 1987, no pet.) (excluded evidence of four acts of sexual intercourse by complainant entitled defendant to promiscuity defense under Boutwell); Wimer v. State, 717 S.W.2d 468 (Tex.App. — San Antonio 1986, no pet.) (defendant admitted rapes, but his earlier consensual sexual relations with his daughter did not constitute promiscuity); Jasso v. State, 699 S.W.2d 658, 660 (Tex.App. — San Antonio 1985, no pet.) (no consideration of consent before denying that acts in evidence constituted promiscuity); Wicker v. State, 696 S.W.2d 680 (Tex.App. — Dallas 1985) (appellant asserted ability to consent based on promiscuity, but court did not mention whether consent was material in analyzing promiscuity), aff'd en banc, No. 1175-85 (Tex.Crim.App., Oct. 21, 1987) (not yet reported) (affirming upon challenge to voluntariness of confession); Chreene v. State, 691 S.W.2d 748, 750 (Te
01(d), V.A.C.C.P., prohibits seizure of anything not specifically described in an Art. 18.02(10) warrant. See Scoggan v. State, 736 S.W.2d 239 (Tex.App. — Corpus Christi, pet. ref'd) (case distinguished under Art. 18.02(10) warrant). In answer to this contention, we note that it is well settled that general exploratory searches are illegal. Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).
On direct appeal, the Thirteenth Court of Appeals in Corpus Christi reversed appellant's conviction and remanded the case to the trial court. Scoggan v. State, 736 S.W.2d 239 (Tex.App. — Corpus Christi 1987). We declined to review the search and seizure grounds relied on for the reversal; the only question before us now is whether appellant is entitled to a judgment of acquittal due to insufficient evidence.
Thus, it might be reasonably concluded that the "plain view" exception is not available to police when executing an "evidentiary" search warrant under Article 18.02(10). See Scoggan v. State, 736 S.W.2d 239, 245 (Tex.App.-Corpus Christi 1987), rev'd on other grounds, 799 S.W.2d 679 (Tex.Crim.App. 1990). But see Bower v. State, 769 S.W.2d 887, 906 (Tex.Crim.App. 1989) (upholding seizure of evidence not specifically listed in a evidentiary warrant issued under Article 18.02(10)).