Flores v. State

• Decision Date: 24 January 2007
• Docket Number: No. 09-05-292 CR.,09-05-292 CR.
• Citation: 215 S.W.3d 520
• Parties: Gerardo FLORES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

215 S.W.3d 520

Gerardo FLORES, Appellant, v. The STATE of Texas, Appellee.

No. 09-05-292 CR.

Court of Appeals of Texas, Beaumont.

Submitted October 12, 2006.

Decided January 24, 2007.

T. Ryan Deaton, Thomas W. Deaton, Carolyn Carter Bell, Lufkin, for appellant.

Clyde Herrington, Dist. Atty., Art Bauereiss, Katrina Carswell, Asst, Dist, Atty's, Lufkin, for state.

Before GAULTNEY, KREGER, and HORTON, J.J.

OPINION

DAVID GAULTNEY, Justice.

A jury found Gerardo Flores guilty of the capital murder of his two unborn children. He was sentenced to life in prison. His appellate issues concern the constitutionality of various sections of the Texas Penal Code, the trial court's refusal to submit certain "lesser-included" offenses for the jury's consideration, and the trial court's denial of motions to suppress evidence. We affirm the trial court's judgment.

The Facts

In the early morning hours of May 7, 2004, an ambulance carried E.B. to the hospital emergency room. She had delivered twins prematurely at home. Medical evidence reveals the twins had been dead in utero for at least twenty-four to forty-eight hours. At the hospital, nurses noticed bruises on E.B.'s arms and "massive bruising" on her abdomen. The police were notified. Officers questioned Flores, E.B.'s boyfriend with whom she was living at Flores's parents' house. In a handwritten statement, Flores stated he and E.B. had argued that night and he struck her. Further, Flores admitted he had in the seven days prior to her delivery stepped on her abdomen on two different occasions. Flores was charged with capital murder of the two unborn children.

The Constitutional Challenges

In issues one through four, Flores contends sections 1.07(a)(26) and 19.06 of the Texas Penal Code are unconstitutional. See Tex. Pen.Code Ann. §§ 1.07(a)(26), 19.06 (Vernon Supp.2006). Flores challenges section 19.06 under the Equal Protection Clauses of the federal and state constitutions and the Equal Rights Amendment of the Texas Constitution; he challenges section 1.07(a)(26) under the Due Process and Establishment Clauses of the United States Constitution.¹

The Texas Legislature has defined capital murder to include the murder of an individual under six years of age. See Tex. Pen.Code Ann. § 19.03(a)(8) (Vernon Supp.2006). The Penal Code defines "individual" as a "human being who is alive, including an unborn child at every stage of gestation from fertilization until birth." Tex. Pen.Code Ann. § 1.07(a)(26) (Vernon Supp.2006). The criminal homicide chapter of the Penal Code excludes the following conduct from the chapter's applicability:

Section 19.06. Applicability to Certain Conduct

This chapter does not apply to the death of an unborn child if the conduct charged is:

(1) conduct committed by the mother of the unborn child;

(2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code;

or

(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

Tex. Pen.Code Ann. § 19.06 (Vernon Supp. 2006).

A court confronted with an attack on the constitutionality of a statute starts with a presumption the Legislature has not acted unreasonably or arbitrarily and the statute is constitutional. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim. App.2002). The individual challenging the statute has the burden to establish its unconstitutionality. Id. A court will uphold a statute if the court can determine a reasonable construction that will carry out legislative intent and render the statute constitutional. Sheldon v. State, 100 S.W.3d 497, 500 (Tex.App.-Austin 2003, pet. ref'd) (citing Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979)).

Flores argues he has been denied equal protection of the law under the United States and Texas constitutions because, as the biological father seeking to abort the unborn children, he is treated differently from the biological mother.² See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, §§ 3, 3a. Under the circumstances in this case, section 19.06 exempts the biological mother from prosecution for murder. See §§ 19.03, 19.06. The Equal Protection Clause requires that "all persons similarly circumstanced shall be treated alike" under the law. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920)); Wood v. State, 18 S.W.3d 642, 651 n. 9 (Tex.Crim.App.2000). "States must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). The Texas Constitution provides that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." Tex. Const. art. I, § 3a. (Texas Equal Rights Amendment).

Under the federal constitution, a statutory classification is evaluated under strict scrutiny if it implicates a fundamental right or discriminates against a suspect class. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457-58, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988); Henderson v. State, 962 S.W.2d 544, 560 (Tex.Crim.App. 1997). If a fundamental right is not implicated and there is no suspect class, the statutory classification need only be rationally related to a legitimate governmental purpose to survive an equal protection challenge. Kadrmas, 487 U.S. at 457-58, 108 S.Ct. 2481; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under the Texas Constitution, sex is a suspect class. Bell v. Low Income Women of Tex., 95 S.W.3d 253, 262 (Tex.2002).

Flores does not have a fundamental right to abort or to assist in aborting his unborn children. See generally Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67-72, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). He suggests, however, gender may be a factor, thereby implicating a suspect class analysis. Section 19.06 does not discriminate on the basis of gender. Under sections 19.06 and 19.03, prosecution for murder of unborn children is not limited to biological fathers or to males. Anyone, male or female, relative or non-relative, whose conduct is not exempted by section 19.06, is subject to prosecution.

There being no fundamental right or suspect class at issue, the statute is subject to a "rational basis" review for purposes of the equal protection challenge. See Henderson, 962 S.W.2d at 560. Flores argues the statutory classification—exempting E.B. from prosecution—impermissibly discriminates against him and is irrational and arbitrary. If there is a rational relationship between the disparity of treatment and some legitimate governmental purpose, the classification does not deny him equal rights or violate the Equal Protection Clause. See Bd. of Trs. v. Garrett, 531 U.S. 356, 366-67, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Richards v. Texas A & M Univ. Sys., 131 S.W.3d 550, 557 (Tex.App.-Waco 2004, pet. denied); Stewart v. State, 13 S.W.3d 127, 131-32 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).

The statute seeks to protect the unborn from murder and also to conform to existing constitutional interpretation by the United States Supreme Court. See, e.g., Roe v. Wade, 410 U.S. 113, 163-66, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The United States Supreme Court has not prohibited states from protecting the unborn in contexts other than those detailed in Roe. See Webster v. Reproductive Health Servs., 492 U.S. 490, 519-22, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). Because the United States Supreme Court has held that states may protect the unborn, the Texas statute has a rational basis and does not violate appellant's equal protection rights. The statute bears a rational relationship to the State's legitimate interest in protecting life. Issues one and two are overruled.

In issue three, Flores contends section 1.07(a)(26) of the Penal Code violates his right to due process of law. See Tex. Pen.Code Ann. § 1.07(a)(26). He makes the following due process arguments: the definition of "individual" in section 1.07(a)(26) is void for vagueness because it arbitrarily defines the point at which life begins; an ordinary person cannot understand what conduct is prohibited; the definition of "individual" violates substantive due process under Roe v. Wade, because "the [S]tate does not have an interest in the preservation of potential life, at least until the fetus reaches viability"; the definition is "overbroad" because it "extends full legal personhood to any fertilized human cell, thus making the experimentation on the destruction of embryonic tissue for the purpose of medical research possibly illegal homicide"; and the statute is "vague and arbitrary so as to invite prosecutorial discretion."

Appellant's substantive due process arguments lack merit. The State's interest in protecting life does not arise only at the point of viability, and the Texas Legislature's decision to define "individual" as including an unborn child is not arbitrary. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."); see also Coleman v. DeWitt, 282 F.3d 908, 911-13 (6th Cir.2002). Further sections 19.03, 19.06, and 1.07 provide clear notice that the State protects unborn children from persons, other than those whose conduct the statute exempts from prosecution, who would knowingly or intentionally cause the death of the unborn at any point during...