Byrne v. State

• Decision Date: 16 November 2011
• Docket Number: No. 04–11–00150–CR.,04–11–00150–CR.
• Citation: 358 S.W.3d 745
• Parties: Sonny Ray BYRNE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

358 S.W.3d 745

Sonny Ray BYRNE, Appellant,

v.The STATE of Texas, Appellee.

No. 04–11–00150–CR.

Court of Appeals of Texas, San Antonio.

Nov. 16, 2011.

Vincent D. Callahan, Attorney At Law, San Antonio, TX, for Appellant.

Mary Beth Welsh, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.

OPINION

Opinion by: MARIALYN BARNARD, Justice.

AppellantSonny Ray Byrne was charged with sexual assault of a child under section 22.011(a)(2)(A) of the Texas Penal Code, Texas's strict liability child sexual assault provision (the statutory rape statute).After the trial court denied his pre-trial motion to quash the indictment, which challenged the constitutionality of the statute under the due process clause of the United State Constitution and due course of law under the Texas Constitution, Byrne pled nolo contendere to the charge.The court sentenced him to seven years confinement in the Texas Department of Criminal Justice—Institutional Division, and assessed a fine of $1,500.00.On appeal, Byrne contends the trial court erred in denying his motion to quash because the statute does not have a mens rea requirement and does not permit the affirmative defense of mistake of fact, rendering it constitutionally infirm.¹We affirm the trial court's judgment.

Background

A detailed rendition of the facts is unnecessary for our disposition of the appeal.Accordingly, we will provide only a brief factual statement for context and as necessary for resolution of Byrne's point of error.

The stipulated facts establish Byrne had consensual sex with the fourteen-year-old female complainant in the back of his car outside a movie theater.The complainant admitted she called Byrne and asked him to come to the theater.She also admitted they had sex on other occasions.An outcry witness ultimately contacted the authorities and told them Byrne had sex with the complainant.

After an investigation, Byrne was arrested and indicted for sexual assault of a child under the statutory rape provision.Before trial, Byrne filed a motion to quash the indictment, contending section 22.011(a)(2)(A) violates his rights under the United States and Texas Constitutions because of its failure to require the State to prove he had a culpable mental state relating to the victim's age, thereby precluding Byrne from asserting the affirmative defense of mistake of fact, i.e., that he reasonably believed the complainant was seventeen years of age or older.After a hearing, the trial court denied the motion to quash.Thereafter, Byrne pled nolo contendere, was sentenced, and then perfected this appeal.

Analysis

In his appeal, Byrne contests the constitutionality of section 22.011(a)(2)(A) of the penal code, i.e., strict liability statutory rape statute, under the state due course of law and federal due process provisions.He also contends section 6.02 of the Texas Penal Code imposes a mens rea component on section 22.011(a)(2)(A).

To sustain a conviction under the statute, the State must prove beyond a reasonable doubt that the defendant“intentionally or knowingly cause[d] the penetration of the anus or sexual organ of a child by any means.”Tex. Penal Code Ann. § 22.011(a)(2)(A).A “child” under this statute is defined as any “person younger than 17 years of age.”Id. at § 22.011(c)(1).The statute does not require the State to prove a culpable mental state with regard to the victim's age and does not provide for the related affirmative defense of mistake of fact.

Generally, to challenge the constitutionality of a statute on both state and federal grounds an appellant must specifically raise each issue at trial and present a separate argument on state and federal grounds in the appellate brief.Pena v. State,285 S.W.3d 459, 463–64(Tex.Crim.App.2009);see alsoTex.R.App. P. 33.1(a)(2).Byrne raised both due course of law and due process objections to the indictment in the trial court.Although his brief is less than a model of clarity, given the recent decision by the court of criminal appeals in Fleming v. State,²we will review Byrne's challenge to the statute under both the state and federal constitutions.341 S.W.3d 415(Tex.Crim.App.2011).

Standard of Review

We review de novoa trial court's denial of a motion to quash an indictment.Lawrence v. State,240 S.W.3d 912, 915(Tex.Crim.App.2007).Questions concerning the constitutionality of a criminal statute are likewise reviewed de novo.Lawson v. State,283 S.W.3d 438, 440(Tex.App.-Fort Worth2009, pet. ref'd);Owens v. State,19 S.W.3d 480, 483(Tex.App.-Amarillo 2000, no pet.);State v. Salinas,982 S.W.2d 9, 10–11(Tex.App.-Houston [1st Dist.]1997, pet. ref'd).

Facial Challenge to Statute

Although he does not specify the type of challenge he is asserting, we construe Byrne's complaint as a facial challenge to the constitutional validity of section 22.011(a)(2)(A).A facial challenge is the most difficult to prove because the challenger must demonstrate that “no set of circumstances exists under which the statute will be valid.”Santikos v. State,836 S.W.2d 631, 633(Tex.Crim.App.1992).Byrne may not present any evidence to support his claim, and we must consider only the language of the statute when making our determination.SeeState ex rel. Lykos v. Fine,330 S.W.3d 904, 908–09(Tex.Crim.App.2011).

We presume “the statute is valid and that the Legislature has not acted unreasonably or arbitrarily.”Rodriguez v. State,93 S.W.3d 60, 69(Tex.Crim.App.2002);see alsoTex. Gov't Code. Ann.. § 311.021(West 2005)(codifying Legislature's intent that all statutes comply with state and federal constitutions).The burden thus rests on Byrne to establish the statute's constitutional infirmity.SeeRodriguez,93 S.W.3d. at 69.The proof must be sufficient to overcome our duty to uphold a statute so long as any reasonable construction renders it constitutional.Ely v. State,582 S.W.2d 416, 419(Tex.Crim.App.1979).

Dual Analysis of State and Federal Constitutional Questions

When presented with both a due course of law and due process challenge to the validity of a penal statute, we must conduct a dual and independent analysis to determine the level of protection provided by each.Heitman v. State,815 S.W.2d 681, 686–88(Tex.Crim.App.1991).The Texas Constitution may grant protections to its citizens that are “lesser, greater, or the same as those of the federal constitution” and it is incumbent upon us to ascertain this level of protection independently of federal considerations.Hulit v. State,982 S.W.2d 431, 436–37(Tex.Crim.App.1998);Heitman,815 S.W.2d at 687–88.Although United States Supreme Court precedent controls decisions concerning federal due process, state courts nevertheless rely on local law when determining the nature and extent of Texas due course of law protection.Hulit,982 S.W.2d at 437.To be valid, the challenged statute must satisfy the state's due course of law requirements while not descending below the minimum threshold established by due process.Id.

Texas Constitution

Byrne asserts the strict liability statutory rape statute violates his due course of law rights under Article 1, sections 10and19 of the Texas Constitution.Section 10 provides that “[i]n all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him.”Tex. Const. art. 1 § 10.Section 19 states that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”Id. at § 19.

We are not persuaded that the absence of a mens rea requirement for section 22.011(a)(2)(A) renders the statute unconstitutional under the Texas Constitution.On the contrary, the Legislature has discretion to “define and punish any act as a crime.”Ex parte Smith,441 S.W.2d 544, 547(Tex.Crim.App.1969).It may also create strict liability crimes when there is an “overriding governmental interest in promoting the health, safety and welfare of its citizens.”Dubuisson v. State,572 S.W.2d 694, 699(Tex.Crim.App.1978).

In Vasquez v. State,the court of criminal appeals determined that strict liability imposed for statutory rape under the now repealed section 21.09 of the Texas Penal Code was constitutional.622 S.W.2d 864, 865(Tex.Crim.App.1981).Section 21.09 provided that “[a] person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.”Id.(citingTex. Penal Code Ann. § 21.09(a));compareTex. Penal Code Ann. § 21.09(a)with§ 22.011(a)(2)(A)(“[a] person commits an offense if the person ... intentionally or knowingly ... causes the penetration of the anus or sexual organ of a child by any means”).The court noted approvingly that section 21.09 did not require the State to show that appellant knew the victim's age.Id.The court also highlighted the Legislature's intent that section 21.09 deny the affirmative defense of mistake of fact concerning the victim's age.Id.

Subsequent decisions of the court consistently upheld strict liability crimes designed to protect children from certain offenses such as rape.See, e.g., Zubia v. State,998 S.W.2d 226, 227(Tex.Crim.App.1999)(commenting that “criminal statutes focusing on child victims tend not to require scienter as to age”);Johnson v. State,967 S.W.2d 848, 849(Tex.Crim.App.1998)(negating a requirement of knowledge concerning the victim's age as an element of rape or indecency with a child);Roof v. State,665 S.W.2d 490, 492(Tex.Crim.App.1984)(highlighting Texas' general denial of a defense of ignorance or mistake in cases involving sexual offenses against children).

While neither this court nor the court of criminal appeals has applied the above precedent to section 22.011(a)(2)(A), several of our sistercourts have...