State v. Rosseau

• Decision Date: 14 December 2011
• Docket Number: No. 04–10–00866–CR.,04–10–00866–CR.
• Citation: 398 S.W.3d 769
• Parties: The STATE of Texas, Appellant v. Robert Louis ROSSEAU, Appellee.
• Court: Texas Court of Appeals

398 S.W.3d 769

The STATE of Texas, Appellant

v.Robert Louis ROSSEAU, Appellee.

No. 04–10–00866–CR.

Court of Appeals of Texas, San Antonio.

Dec. 14, 2011.

Angela J. Moore, Rogers & Moore of Counsel, Boerne, TX, for State of Texas.

Crystal D. Chandler, Assistant Criminal District Attorney, Cadena-Reeves Justice Center, San Antonio, TX, for Robert Louis Rosseau.

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

OPINION

Opinion by: PHYLIS J. SPEEDLIN, Justice.

The State appeals the trial court's pre-trial order quashing the portion of the indictment used to elevate each count of sexual assault from a second degree felony to a first degree felony under section 22.011(f) of the Texas Penal Code. We reverse and remand for further proceedings.

Factual and Procedural Background

Robert Rosseau was indicted on thirty (30) counts of sexual assault of a child involving two female victims younger than 17 years of age, A.F. and A.H., and occurring over the course of three years. A.H. is Rosseau's step-daughter and A.F. is her friend. Each count contains language alleging the particular conduct constituting sexual assault, plus language alleging that, at the time of the sexual assault, the victim was “a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married under Section 25.01 of the Texas Penal Code, in that, the defendant was legally married to a person other than [the victim].” ¹ This additional allegation under subsection (f) of section 22.011 of the Penal Code elevates the degree of the sexual assault offense from a second to a first degree felony, and thereby increases the range of punishment. SeeTex. Penal Code Ann. § 22.011(f) (West 2011). Rosseau filed a pre-trial motion to quash the subsection (f) portion of each count of the indictment, alleging that,

[T]he application [of § 22.011(f) ] to the present indictment is inappropriate. It creates a ‘class of individuals' who would potentially receive a greater punishment than TPC, Sec. 22.011 contemplates. As applied, it violates the equal protection and the due process sections of both the State and Federal Constitutions. It punishes people for being married. Clearly, the legislature did not intend this section to have that effect. To allow this enhancement would lead to absurd and legislatively unintended consequences.

Rosseau's motion to quash included two exhibits containing legislative history for the 2005 amendment which rewrote subsection (f) of section 22.011. The Conference Committee Report for S.B. 6 (Exhibit A) states, in relevant part, that,

The provisions of the bill that are the subject of this analysis would amend the Family Code and Penal Code as they relate to felony level offense sanctions ... The bill would amend the Penal Code by enhancing the punishment by one class for the offense of sexual assault ... when the offense of bigamy or certain categories of bigamy are involved. The bill would also enhance the offense of bigamy from a Class A misdemeanor to a felony of the third degree....

The Bill Summary for S.B. 6 (Exhibit B) states that, “Senate Bill 6 amends the Education Code, Family Code, Government Code, Human Resources Code, Penal Code, Code of Criminal Procedure, and Texas Probate Code to make a number of reforms to the children's protective services and adult protective services programs, certain related guardianship issues, and other family law matters.” The only reference in the Bill Summary to the bigamy statute is in the last paragraph which states, “Finally, Senate Bill 6 amends the Family Code and Penal Code to clarify provisions of the law relating to the offense of bigamy and to increase the penaltyfor the offense from a Class A misdemeanor to a felony of the third, second, or first degree depending on the age of the person to [sic] whom an actor purports to marry or with whom the actor lives under the appearance of marriage.” The Bill Summary makes no reference to elevation of the degree of felony for sexual assault involving bigamy, as authorized by subsection (f) of section 22.011.

During the pre-trial hearing on Rosseau's motion to quash, defense counsel characterized the grounds of the motion as follows:

My entire argument is that application of this present indictment to Robert Rosseau would put him in a class of individuals that would potentially receive greater punishment than 22.011 contemplates ... I believe that this statute punishes people for being married, that the application as to Robert Rosseau would, in fact, punish him for being married. I do not believe that was the intention of the legislature at all. I believe the legislation was specifically directed towards a specific unique legal moral political circumstance that was happening in our state and nearby states, and the State should be precluded from the enhancement....

In response, the State first objected to the legislative history attached to Rosseau's motion to quash, arguing it is not relevant because section 22.011(f) is “very clear on its face,” and the indictment properly tracks the statutory language. The State further argued the statute does not violate equal protection or due process because it does not penalize people for being married, but rather seeks to protect the spouse of the victim or defendant and the sanctity of marriage. The State described the application of the plain, clear language of section 22.011(f) to this case, stating, “this is a felony in the first degree if the victim was a person whom the actor was prohibited from marrying, which in this case the defendant was by law prohibited from marrying the victim because the defendant was already married to the mother of the victim.”

At the conclusion of the hearing, the trial court granted the motion to quash, explaining its reasoning as follows:

You [the State] might be tracking the statute very precisely, but I don't believe that the statute was ever intended to say we're going to take this bigamy statute, we're going to enhance it over here, even though the person who is charged, the evidence is not going to show that they were engaging in bigamy or doing any of the things that is listed in this bigamy statute. When it was first presented to me, I thought that the fact scenario was going to show that not only was the person committing the offense of sexual assault but they were also doing something applicable under this bigamy statute, other than just having the status of being a married person. So I don't see it. I think it raises constitutional issues ... [which] does make it a proper subject for a motion to quash. I'm going to find that it is violative of constitutional rights and I'm going to grant the motion to quash in part ... with regard to each enhancement provision....

The court's written order grants the motion to quash in part as to “all enhancements.” The State appealed, and moved for a stay of the trial court proceedings pending appeal. SeeTex.Code Crim. Proc. Ann. art. 44.01(a)(1), (e) (West Supp. 2010). The stay was granted and this appeal followed.

Motion to Quash Indictment

On appeal, the State asserts that the trial court erred in quashing the subsection(f) portion of each count of the indictment because: (1) Rosseau's motion to quash only raised an “as-applied” challenge to the constitutionality of section 22.011(f), which could not be determined pre-trial because it depends on the facts developed at trial; and (2) alternatively, section 22.011(f) is constitutional. In response, Rosseau argues the statute violates equal protection and due process because it penalizes married persons and that was not the legislative intent; therefore, the statute is unconstitutional and the court correctly quashed those portions of the indictment.

Jurisdiction

As an initial matter, we must determine whether the State has the right to appeal the court's pretrial order, and thus whether we have jurisdiction over this appeal. Article 44.01(a) of the Code of Criminal Procedure authorizes the State to appeal in certain limited situations such as from an order that “dismisses an indictment ... or any portion of an indictment.” Tex.Code Crim. Proc. Ann. art. 44.01(a)(1). In his appellee's brief and at oral argument, Rosseau argued that the trial court's order quashing the subsection (f) portions of the indictment is not an appealable order because it does not foreclose the State from proceeding with its prosecution of the alleged sexual assaults, only from proceeding in the manner it desires, i.e., as first degree felonies; therefore, Rosseau asserts that because the order did not terminate the prosecution, the State does not have the right to appeal under article 44.01(a)(1) and this appeal must be dismissed for lack of jurisdiction. In its written response to a show cause order issued by this court, and at oral argument, the State asserted that we do have jurisdiction over this appeal because the trial court's order quashed “a portion of the indictment” as contemplated by article 44.01(a)(1), and the quashing of the subsection (f) portions of the indictment foreclosed the prosecution of the first degree felony offenses.

In addition, the parties further refined their positions during oral argument, and both sides have submitted post-argument supplemental authorities. Specifically, Rosseau contends the subsection (f) allegation set forth in the indictment constitutes a mere enhancement of the punishment range, not an element of the offense; therefore, the quashing of the subsection (f) paragraphs only affects the applicable range of punishment and does not affect the State's ability to obtain convictions on the alleged sexual assault conduct. The State, on the other hand, asserts the subsection (f) allegation constitutes an element of the first degree sexual assault offense in that it is a factual matter that must be...