State v. Rosseau

• Decision Date: 17 April 2013
• Docket Number: No. PD–0233–12.,PD–0233–12.
• Parties: The STATE of Texas v. Robert Louis ROSSEAU, Appellee.
• Court: Texas Court of Criminal Appeals

396 S.W.3d 550

The STATE of Texas

v.Robert Louis ROSSEAU, Appellee.

No. PD–0233–12.

Court of Criminal Appeals of Texas.

April 17, 2013.

Angela Moore, Rogers & Moore, PLLC, Boerne, TX, for Appellant.

Crystal Chandler, Assistant District Attorney, San Antonio, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

OPINION

ALCALA, J., delivered the opinion for a unanimous Court.

This is a pretrial appeal. In his petition for discretionary review, Robert Louis Rosseau, appellee, challenges the judgment of the court of appeals that reversed the trial court's order quashing a portion of the indictment. See State v. Rosseau, No. 04–10–00866–CR, 398 S.W.3d 769, 779–80, 2011 WL 6207037, at *9 (Tex.App.–San Antonio Dec. 14, 2011) (not designated for publication). On appellee's motion, the trial court quashed multiple paragraphs of the indictment, which were based on a “bigamy provision” that elevates the range of punishment for sexual assault whenever “the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under [Texas Penal Code] Section 25.01.” ¹ With respect to appellee's jurisdictional challenge, we agree with the court of appeals that it had jurisdiction to address the State's appeal of the trial court's order granting the motion to quash. With respect to appellee's argument that the bigamy provision at Texas Penal Code Section 22.011(f) is facially unconstitutional, we disagree with the court of appeals's conclusion that appellee did not present a facial challenge, but agree with its alternative holding that appellee failed to show that the statute operates unconstitutionally in all its applications. We, therefore, affirm the judgment of the court of appeals.

I. Background

Charged with offenses committed against two complainants, appellee stands indicted for 29 counts of sexual assault of a child and one count of indecency with a child. One of the complainants was appellee's step-daughter, and the other was her female friend. Each of the 29 sexual-assault counts contained an allegation based on the bigamy provision. SeeTex. Penal Code § 22.011(f).² If proved, the provision would elevate each sexual-assault count from a second-degree felony to a first-degree felony. Id. Appellee filed a motion to quash the indictment by contending (1) that the bigamy provision was being applied inconsistently with the legislative intent and would thus subject him to greater punishment than the sexual-assault statute contemplates; and (2) that the law violated the Equal Protection and Due Process clauses of both the state and federal constitutions because it “punishes people for being married.”

Appellee's motion to quash included two exhibits describing the legislative history for the 2005 amendment that rewrote subsection (f) of Texas Penal Code Section 22.011 and added the provision at issue in this appeal. SeeTex. Penal Code § 22.011(f); Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 4.02. His exhibits suggest that the Legislature crafted the bigamy provision to particularly target fundamentalist Mormons involved in bigamous relationships with children. His exhibits also describe the percentage of married people in Texas, and on this basis he argues that the bigamy provision would have widespread application if it were applied generally to married people who are not believed to be in bigamous relationships. Aside from the two exhibits attached to the motion to quash, no other evidence was presented. At the hearing on appellee's motion, the State argued that it would be inappropriate for the trial court to consider the exhibits that address extra-textual matters because the language of the statute is plain and serves the State's legitimate interest in “protecting the spouses of the individuals who are either the victim or the defendants in a case of sexual assault.” The State further argued that sexual assault may be properly elevated to a first-degree felony “if the victim was a person whom the actor was prohibited from marrying,” and that the provision was applicable here because appellee was “by law prohibited from marrying the victim because [he] was already married” to her mother. Neither party contended that appellee was in a bigamous relationship with the victims.

The trial court granted the motion to quash in part, striking the bigamy provision from each of the 29 sexual-assault counts. The State appealed to the court of appeals, and the proceedings in the trial court were stayed pending resolution of the appeal. In the court of appeals, the parties had three disputes.

First, the parties disputed whether the court of appeals had jurisdiction over the State's appeal. Rosseau, 398 S.W.3d at 773–76, 2011 WL 6207037, at *3–4. Appellee contended that the statute was a punishment enhancement that was not required to be included in the indictment, and, therefore, that the dismissal of that portion of the indictment could not serve as the basis for the State's appeal. Id. Disagreeing with appellee, the court of appeals determined that the State had a right to appeal the trial court's order quashing a portion of the indictment and that, therefore, it had proper jurisdiction to entertain the State's appeal. Id. 774–78, 2011 WL 6207037, at *4–7. This jurisdictional dispute is the focus of the first two grounds in appellee's petition for discretionary review.³

Second, the parties disputed whether appellee's motion to quash had properly presented a facial challenge to the statute's constitutionality and, even if it had, they disputed whether appellee had proven a constitutional violation. Id. 779–80, 2011 WL 6207037, at *9. The court of appeals agreed with the State that appellee failed to raise a facial challenge, and, alternatively, determined that even if he did, he failed to carry his burden of proof. Id. (holding that appellee “failed to rebut the presumption of constitutionality by proving that the statute operates unconstitutionally in all its applications”). This dispute is the basis of appellee's final ground in his petition for discretionary review.⁴

Third, the parties disputed whether the statute was unconstitutional “as applied” to appellee. The court of appeals determined that this argument was premature as a pretrial ruling because it was dependent on the facts presented at trial. Id. 777–80, 2011 WL 6207037, at *7–9. This dispute has been abandoned by appellee in his petition for discretionary review, and we express no opinion on the merits of this matter.

II. Appellate Court Jurisdiction

Appellee's first two issues in his petition for discretionary review challenge the appellate court's jurisdiction to review the trial court's order granting the motion to quash. Appellee contends that the court of appeals lacked jurisdiction over the State's appeal because the trial court's order granting the motion to quash pertained only to an enhancement allegation rather than to the elements of the offense. We disagree. Since the court of appeals's judgment in this case, this Court has expressly held that a court of appeals has jurisdiction to address the State's challenge to a trial court's order dismissing a portion of an indictment, even when that portion is the punishment-enhancement paragraph, as opposed to elements of the offense. State v. Richardson, 383 S.W.3d 544, 548 (Tex.Crim.App.2012). In Richardson, we explained that the plain languagein Texas Code of Criminal Procedure Article 44.01(a)(1) authorizes the State to appeal any trial court order that “dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint[.]” Id. (citing Tex.Code Crim. Proc. art. 44.01(a)(1)). Moreover, we explained that, for purposes of applying the plain language of Article 44.01(a)(1), there is no meaningful distinction between elements of the offense and enhancement allegations contained within an indictment—both constitute “portion[s] of the indictment” under Article 44.01(a)(1). Id. Here, as in Richardson, because the quashed provisions “were alleged in the indictment, and thus are quite literally a ‘portion of an indictment,’ Art. 44.01(a)(1) may be invoked to permit the state's appeal.” Id. at 547. In light of Richardson, we overrule appellee's first two issues.⁵

III. Facial Challenge to the Constitutionality of the Bigamy Provision

In his third issue, appellee alleges that the court of appeals erred by concluding that he failed to properly present a facial challenge to the constitutionality of the bigamy provision. SeeTex. Penal Code § 22.011(f). He further contends that the provision, if interpreted in accordance with the State's suggested reading, is facially unconstitutional because it treats all married people more harshly than it treats unmarried people in violation of the Due Process and Equal Protection clauses of the state and federal constitutions.

A. Appellee Did Present Challenge to Facial Constitutionality of Statute

The court of appeals determined that “neither the text of his motion to quash nor his argument in the trial court raised a facial challenge to the constitutionality of [the bigamy provision].” See Rosseau, 2011 WL 6207037, at *8 (citing Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009)).⁶ We disagree. Although it could have been more clearly presented, appellee's motion adequately presented both facial and “as applied” challenges to the constitutionality of the bigamy provision.

Rather than focus on the presence of magic language, a court should examine the record to determine whether the trial court understood the basis of a defendant's request. See Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App.2012) (noting that issue preserved without having been explicitly stated if “there have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be”)...