Friesenhahn v. State

• Decision Date: 09 February 2018
• Docket Number: NO. 03-16-00582-CR,03-16-00582-CR
• Citation: Friesenhahn v. State, NO. 03-16-00582-CR (Tex. App. Feb 09, 2018)
• Parties: Ralph Alfred Friesenhahn, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Ralph Alfred Friesenhahn, Appellant v. The State of Texas, Appellee

NO. 03-16-00582-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

February 9, 2018

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. CR2012-288, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Ralph Alfred Friesenhahn of felony driving while intoxicated, see Tex. Penal Code §§ 49.04(a), 49.09(b)(2), and assessed his punishment at confinement for four years in the Texas Department of Criminal Justice and a $1,000 fine, see id. § 12.34. In a single point of error on appeal, appellant challenges the trial court's denial of his pretrial motion to quash the indictment. Finding no error in the ruling, we affirm the trial court's judgment of conviction.

BACKGROUND

Appellant was charged by indictment with felony DWI. See id. §§ 49.04(a), 49.09(b)(2). Section 49.04 of the Penal Code, the DWI statute, provides that "[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." See id. § 49.04(a); see also id. § 49.04(a) (elevating offense to third degree felony if defendant has been convicted twice before of DWI offense). For purposes of the intoxication offenses set forth in Chapter 49 of the Penal Code, which includes section 49.04, section 49.01 of the Penal Code defines "intoxicated" as

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

Id. § 49.01(2). Prior to trial, appellant filed a motion to quash the indictment asserting that "the indictment [was] based on a statute that violates the Equal Protection Clause of the U.S. Constitution and the Texas Constitution." Specifically, appellant claimed that the statutory definition of intoxicated as having an alcohol concentration of 0.08 or more, set forth in section 49.01(2)(B) and incorporated into section 49.04, violates equal protection because it unfairly discriminates against alcoholics.

The trial court considered appellant's motion to quash at trial before jury selection. Appellant offered no evidence in support of his motion but merely offered argument to the court. Appellant asserted that "the statute of .08 being the legal threshold for intoxication" discriminates against alcoholics because "many of those folks who suffer from the disease of alcoholism are able to maintain normal functioning at .08 versus a person who does not [suffer from the disease of alcoholism]." To support this contention, appellant mentioned "studies" that have been done—though none were provided to the trial court—and referred to federal agencies that classify alcoholism as a disease—though no evidence of this was presented to the trial court. Appellantargued that the 0.08 alcohol concentration definition "force[s] a strict liability of criminal responsibility on something that an alcoholic would possibly have no control over," which, he maintained, violates an alcoholic's equal protection rights. He noted that historically "per se driving laws" regarding "blood alcohol contents" have dropped the level of the statutory limit since the inception of such statutes, and opined that "there has been very little impact" of the limit being lowered. He urged that, given the "more common and modern approach that alcoholism is a disease and an affliction that is not necessarily curable without proper treatment . . . the time is right for the judicial branch of the government to refocus on these laws to find out if our citizens that suffer from this disease are being unfairly treated versus other members of the society." The trial court denied the motion to quash.

DISCUSSION

In his sole point of error, appellant maintains that alcoholism is a disability under the Americans with Disabilities Act, asserts that the 0.08 per se definition of intoxication "does little to improve highway safety," and claims that the 0.08 presumption is "arbitrary and overly broad."¹ He asks this Court to "find[] that Texas Penal Code § 49.04 and 49.01(2)(B) violate[] the right to equal protection guaranteed by the United States Constitution and Texas Constitution."² Based onappellant's briefing and prayer, we construe his argument as a challenge to the trial court's denial of his motion to quash the indictment.

When a trial court's ruling on a defendant's motion to quash an indictment concerns a matter unrelated to the credibility or demeanor of witnesses, such as the constitutionality of a statute, we review the ruling de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ("When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue. . . . The trial court's decision in this case was based only on the indictment, the motion to quash, and the argument of counsel, so the trial court was in no better position than an appellate court to decide this issue.").

There are two types of challenges to the constitutionality of a statute: the statute is unconstitutional on its face, or the statute is unconstitutional as applied to the defendant. Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.); see Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J., concurring) ("[W]hat is the difference between a facial challenge and an 'as applied' challenge to the constitutionality of a penal statute? Evidence. A facial challenge is based solely upon the face of the penal statute and the charging instrument, while an applied challenge depends upon the evidence adduced at a trial or hearing.").

A facial challenge is an attack on the statute itself as opposed to a particular application. Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017); Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Except when First Amendment freedoms are involved, a facial challenge to a statute is a claim that a statute, by its terms, operates unconstitutionally in all possible circumstances.³ Salinas, 523 S.W.3d at 106; State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). To prevail on a facial challenge to the constitutionality of a statute, a party must demonstrate the statute always operates unconstitutionally in all possible circumstances; in other words, no set of circumstances exists under which the statute would be constitutionally valid. Peraza, 467 S.W.3d at 514; Rosseau, 396 S.W.3d at 557; State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011) (orig. proceeding); Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, not how it operates, or may operate, in practice. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015); Lykos, 330 S.W.3d at 908; see Peraza, 467 S.W.3d at 515.

A claim that a statute is unconstitutional "as applied" is a claim that the statute, although generally constitutional, operates unconstitutionally as to the claimant because of hisparticular facts and circumstances. Lykos, 330 S.W.3d at 910; Gillenwaters, 205 S.W.3d at 537 n.3; Ex parte Carter, 514 S.W.3d 776, 779 (Tex. App.—Austin 2017, pet. ref'd). A statute may be valid as applied to one set of facts and invalid as applied to a different set of facts. Lykos, 330 S.W.3d at 910. An "as applied" constitutional challenge typically may not be resolved pretrial because it depends on development of the specific facts of the case showing how the statute is being applied to the defendant. Ex parte Carter, 514 S.W.3d at 779; see Lykos, 330 S.W.3d at 910 ("An 'as applied' challenge is brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.").

We review a challenge to the constitutionality of a statute de novo. Vandyke v. State, — S.W.3d —, No. PD-0283-16, 2017 WL 6505800, at *5 (Tex. Crim. App. Dec. 20, 2017); Salinas, 464 S.W.3d at 366. The party challenging the statute normally bears the burden of establishing its unconstitutionality. Vandyke, 2017 WL 6505800, at *5; Peraza, 467 S.W.3d at 514; Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2014); see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016), cert. denied, 137 S. Ct. 1336 (2017) ("An individual bringing a challenge to a criminal statute must 'shoulder the burden to establish that [the statute] is unconstitutional.'" (quoting Luquis v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002))). When confronted with an attack on the constitutionality of a statute, we afford great deference to the Legislature and presume that the statute is constitutional and that the Legislature has not acted unreasonably or arbitrarily. Vandyke, 2017 WL 6505800, at *5; Peraza, 467 S.W.3d at 514; Ex parte Lo, 424 S.W.3d at 14-15; Rosseau, 396 S.W.3d at 557; see Tex. Gov't Code § 311.021 (stating that courts presume "compliance" withTexas and United States Constitutions). Bearing in mind this presumption, we examine Penal Code sections 49.04 and 49.01(2)(B) together with the constitutional right that appellant contends they offend.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be...