Fleming v. State, No. PD–1250–12.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMEYERS, J., delivered the opinion of the Court, in which KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.
Citation455 S.W.3d 577
PartiesMark Alexander FLEMING, Appellant v. The STATE of Texas.
Docket NumberNo. PD–1250–12.
Decision Date18 June 2014

455 S.W.3d 577

Mark Alexander FLEMING, Appellant
v.
The STATE of Texas.

No. PD–1250–12.

Court of Criminal Appeals of Texas.

June 18, 2014.


455 S.W.3d 577

Richard Gladden, Denton, for Appellant.

Catherine Luft, for the State of Texas.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellant, Mark Alexander Fleming, was charged with four counts of aggravated sexual assault under

455 S.W.3d 578

Texas Penal Code Section 22.021(a)(1)(B)(iii), (2)(B).1 He filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove that he had a culpable mental state related to the victim's age and for failing to recognize an affirmative defense based on the defendant's reasonable belief that the victim was 17 years of age or older. The trial court denied the motion. Appellant entered a plea of “no contest,” filed an application for community supervision, and invoked his right to have the jury determine punishment. On the second day of testimony, one of the jurors informed the court that his son had dated the victim. In order to avoid a mistrial, the State and Appellant entered into a plea agreement for a ten-year probated sentence. Appellant appealed the trial court's denial of his motion to quash. The court of appeals overruled Appellant's federal constitutional claims and affirmed the trial court's judgment. We remanded the case to the court of appeals to consider Appellant's state constitutional claims, and the court of appeals again affirmed the trial court. Appellant filed a petition for discretionary review, which we granted to consider whether Penal Code Section 22.021 is unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provision of the Texas Constitution because it fails to require the State to prove that the defendant had a culpable mental state regarding the alleged victim's age, and fails to recognize an affirmative defense based on the defendant's reasonable belief that the alleged victim was 17 years of age or older. We will affirm the court of appeals.

FACTS

Appellant testified that in April of 2007 he received a text message from a girl, K.M., who said that she had obtained his phone number from her friend. When Appellant asked her age, she replied that she was 22 years old. K.M. was actually 13 years old. The two corresponded by text message and talked on the phone for a week or two and then arranged to meet at the mall for a date. Both Appellant and K.M. testified that on their first date they went to a movie and drag races at a race track, after which Appellant drove K.M. home. Appellant stated that K.M. told him that her mother and step-father lived with her because they had lost their home. After their second date to dinner and a movie, Appellant asked K.M. if she wanted to spend the night with him at the hotel where he had been staying. Appellant testified that K.M. said that she did want to go to his hotel but that she was not ready for them to have sexual relations at that time. Appellant said that he agreed and that they went to sleep upon arrival at the hotel. Appellant testified that when he awoke early the next morning, K.M. was “messing with” him in a way that indicated that she wanted to have sex. He asked her if she was sure, and she said that she was. Appellant and K.M. continued dating and having sex from April to May of 2007. Later that year, K.M.'s mom found a love letter that Appellant had written to K.M. Appellant, who was 25 years old at the time, wrote in the letter, “I no you 4 years or 5 years younger then me but I love you.” When her mom confronted her about the letter, K.M. initially denied the relationship. When K.M. admitted that she did have sex with Appellant, her mom called the police. Appellant was cooperative during questioning by the police and told the officer about the relationship. He told the officer that he did not know that K.M. was under age when he dated her. At trial, Appellant testified

455 S.W.3d 579

that he believed that K.M. was 22 years of age because both K.M. and her friend had told him that she was 22 years old, and because K.M. had told him that she was a student at the University of North Texas majoring in criminal justice. He also testified that he had seen on her MySpace page, which was entered into evidence by the defense, that she was 20 years old and was a student at UNT. The MySpace page entered into evidence by the defense also contained photos of K.M. that were taken around the time she was dating Appellant. K.M. denied having told Appellant that she was 22 years old and testified that someone else must have changed her MySpace page. She said she did not know if Appellant knew that she was under age when they dated. The State presented evidence that Appellant had previously dated a friend of K.M.'s mom, who sometimes babysat K.M. when she was younger. The State said that K.M. would have been 11 years old when Appellant first met her at her mom's house. K.M. said that Appellant had been to her mother's house in the past but she did not know if he remembered meeting her then.2

Appellant agreed to a ten-year probated sentence and retained the right to appeal the trial court's denial of his motion to quash. He appealed, arguing that Penal Code Section 22.021 is unconstitutional due to its failure to require proof that he had knowledge that his victim was younger than 17 years of age and for not recognizing an affirmative defense based on the defendant's reasonable belief that the victim was 17 years of age or older.

COURT OF APPEALS

On remand from this Court, the court of appeals held that Section 22.021 does not offend notions of Due Process or Due Course of Law. The court stated that the texts of both the Due Course of Law provision and the Due Process Clause are virtually identical and that the Due Course of Law provision provides the same protections as the Due Process Clause. The court reasoned that the strict-liability aspect of statutory-rape laws is widely known and is a recognized exception to the general requirement of mens rea in criminal statutes. The court of appeals rejected Appellant's reliance on United States v. X–Citement Video, 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), and said that the reasoning from X–Citement does not apply here because Section 22.021 involves personal contact with the underage victim and the ability to ascertain true age, while the possession of visual depictions of minors does not. The court of appeals determined that there is not a fundamental right to a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, as long as the statute is reasonably related to a legitimate state objective, it does not impinge on a substantive due-process right. The court of appeals concluded that strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor. The court of appeals overruled Appellant's points of error and affirmed the judgment of the trial court.

ARGUMENTS OF THE PARTIES

Appellant presents a facial challenge to the statute's lack of a mens rea as to the victim's age. He raises an as-applied challenge to the court's failure to allow him to present a mistake-of-fact defense. Specifically,

455 S.W.3d 580

he argues that he had an objectively and subjectively reasonable belief that the victim in this case was over the age of 17. Appellant states that under early English and American Common Law, the knowing act of engaging in consensual sex with another when not sanctioned by the legal bonds of marriage was a legal and moral wrong, and that legal wrong sufficed as a substitute for mens rea in the statutory rape context. Appellant argues that, because such acts are no longer legally wrong, there is nothing to substitute for a mens rea element in Section 22.021 and it is unconstitutional to enforce the statute without the mens rea element that is essential in every felony charge. Appellant claims that in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court extended the Due Process Clause's protection of liberty to the intimate choices of unmarried persons. Appellant cites X–Citement, stating that when a statute is completely bereft of a scienter requirement as to the age of the victim, and the age of the victim is the crucial element separating legal innocence from wrongful conduct, the statute raises serious constitutional doubts. Appellant argues that, because the physical act identified in Section 22.021(a)(1)(B)(iii) is entitled to constitutional protection, the complete absence of a mens rea requirement as to the age of the victim renders the statute constitutionally void. Appellant states that the framers of the Texas Constitution would have considered an ignorance-of-fact defense as a fundamental right so as to not punish those who, through no fault of their own, have been misled. Finally, Appellant argues that...

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43 practice notes
  • DM Arbor Court, Ltd. v. The City of Hous., Civil Action H-18-1884
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 21, 2021
    ...v. Smith, 812 Fed.Appx. 176, 184 (5th Cir. 2020) (quoting Fleming v. State, 376 S.W.3d 854, 857 (Tex. App.-Fort Worth 2012), aff'd, 455 S.W.3d 577 (Tex. Crim. App. 2014)). --------- ...
  • Carson v. State, No. 06–15–00170–CR
    • United States
    • Court of Appeals of Texas
    • January 31, 2017
    ...it provides, ... there exists 'no reason to reach a contrary conclusion with respect to substantive rights and protections' "), aff'd, 455 S.W.3d 577, 583 (Tex. Crim. App. 2014). Accordingly, the only source for constitutional procedural rights at sentencing derive from federal due process.......
  • State v. Empey, NO. 02-14-00407-CR
    • United States
    • Court of Appeals of Texas
    • August 4, 2016
    ..., 110 S.W. 1006, 1010 (Tex.Civ.App.–Fort Worth 1908), rev'd on other grounds , 102 Tex. 433, 118 S.W. 134 (Tex.1909).4 Fleming v. State , 455 S.W.3d 577, 589–90 (Tex.Crim.App.2014) (Keller, P.J., dissenting) (footnotes and internal quotation marks omitted), cert. denied , ––– U.S. ––––, 135......
  • Cox v. State, NO. 02–14–00399–CR
    • United States
    • Court of Appeals of Texas
    • May 12, 2016
    ...607 (Tex.App.—Fort Worth 2016, pet. ref'd) (op. on reh'g) (citing In re B.W., 313 S.W.3d 818, 823–24 (Tex.2010) ); see Fleming v. State, 455 S.W.3d 577, 581–82 (Tex.Crim.App.2014) (“[S]exual intercourse is not a crime except in certain circumstances, such as ... when the other person is dee......
  • Request a trial to view additional results
43 cases
  • DM Arbor Court, Ltd. v. The City of Hous., Civil Action H-18-1884
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 21, 2021
    ...v. Smith, 812 Fed.Appx. 176, 184 (5th Cir. 2020) (quoting Fleming v. State, 376 S.W.3d 854, 857 (Tex. App.-Fort Worth 2012), aff'd, 455 S.W.3d 577 (Tex. Crim. App. 2014)). --------- ...
  • Carson v. State, No. 06–15–00170–CR
    • United States
    • Court of Appeals of Texas
    • January 31, 2017
    ...it provides, ... there exists 'no reason to reach a contrary conclusion with respect to substantive rights and protections' "), aff'd, 455 S.W.3d 577, 583 (Tex. Crim. App. 2014). Accordingly, the only source for constitutional procedural rights at sentencing derive from federal due process.......
  • State v. Empey, NO. 02-14-00407-CR
    • United States
    • Court of Appeals of Texas
    • August 4, 2016
    ..., 110 S.W. 1006, 1010 (Tex.Civ.App.–Fort Worth 1908), rev'd on other grounds , 102 Tex. 433, 118 S.W. 134 (Tex.1909).4 Fleming v. State , 455 S.W.3d 577, 589–90 (Tex.Crim.App.2014) (Keller, P.J., dissenting) (footnotes and internal quotation marks omitted), cert. denied , ––– U.S. ––––, 135......
  • Cox v. State, NO. 02–14–00399–CR
    • United States
    • Court of Appeals of Texas
    • May 12, 2016
    ...607 (Tex.App.—Fort Worth 2016, pet. ref'd) (op. on reh'g) (citing In re B.W., 313 S.W.3d 818, 823–24 (Tex.2010) ); see Fleming v. State, 455 S.W.3d 577, 581–82 (Tex.Crim.App.2014) (“[S]exual intercourse is not a crime except in certain circumstances, such as ... when the other person is dee......
  • Request a trial to view additional results

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