Mark Fleming v. State
376 S.W.3d 854
Tex. App.2012Background
- Appellant Mark Fleming pled guilty to four counts of aggravated sexual assault of a child under 14 under a negotiated plea; trial court imposed 10 years’ confinement, suspended imposition of sentence, and 10 years’ community supervision with sex-offender registration.
- Fleming moved to quash the indictment pre-trial, arguing Texas Penal Code 22.021 lacks mens rea and fails to allow a mistake-of-fact defense; trial court denied.
- On appeal, this court initially upheld constitutionality under due process but avoided the due-course-of-law issue; the Texas Court of Criminal Appeals later vacated and remanded.
- On remand, Fleming pressed four points challenging 22.021 under federal due process and Texas due course of law; the court reconsiders all four points.
- The court concludes 22.021’s lack of a mens rea or mistake-of-age defense does not violate due process or due course of law, reaffirming the conviction and upholding the statute’s constitutionality.
- The opinion discusses substantial precedent from federal and Texas law, including historical practice, and affirms based on legislative discretion and public-safety interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 22.021 violates due process by lacking mens rea/mistake-of-age defenses | Fleming argues absence of mens rea or mistake-of-age defense offends due process | State contends strict liability statutory rape is permissible to protect minors | No; statute constitutional under both due process and due course of law. |
| Whether due course of law provides greater protection than due process | Fleming asserts Texas due course of law offers greater protections | State relies on Salazar’s equivalence of protections | No meaningful distinction; protections are the same. |
| Whether lack of mens rea is a fundamental right triggering strict scrutiny | Fleming claims fundamental right to avoid strict liability in statutory rape | State need only rational relation to legitimate state interest | No fundamental right; statute rationally furthers child-protection interests. |
| Whether X-Citement Video and Lawrence support Fleming’s position | Cites Lawrence and X-Citement Video to undermine strict liability | Those authorities are distinguishable; age-maturity context varies | Distinguishable; not controlling here. |
Key Cases Cited
- Salazar v. State, 298 S.W.3d 273 (Tex. App.—Fort Worth 2009) (due course of law and due process protections align)
- University of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926 (Tex. 1995) (establishes near identity of protections between clauses)
- Ransom, 942 F.2d 775 (10th Cir. 1991) (majority rule that knowledge of age is not essential in statutory rape)
- United States v. X‑Citement Video, 513 U.S. 64 (Sup. Ct. 1994) (recognizes age-knowledge element in certain contexts; distinguishable here)
- Lambert v. California, 355 U.S. 225 (U.S. 1957) (limits on due process; legislative discretion in crime definition)
- Montana v. Egelhoff, 518 U.S. 37 (U.S. 1996) (legislative definitions of offenses may omit mens rea without violating due process)
- Morissette v. United States, 342 U.S. 246 (U.S. 1952) (historical default of intent in criminal law)
- United States v. Flores, 507 U.S. 292 (U.S. 1993) (fundamental rights and strict scrutiny framework guidance)
- Jackson v. State, 50 S.W.3d 579 (Tex. App.—Fort Worth 2001) (precedent on due course of law in Texas)
- Scott v. State, 36 S.W.3d 240 (Tex. App.—Houston 2001) (predecessor discussion on due process)
- Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) (lack of mens rea not unconstitutional against equal protection)