State v. Robert Louis Rosseau
2011 Tex. App. LEXIS 9772
| Tex. App. | 2011Background
- Rosseau indicted on 30 counts of sexual assault of a child involving two victims under 17 over three years; victims A.F. and A.H., with A.H. as Rosseau’s step-daughter.
- Each count contains a subsection (f) clause elevating the offense from a second to a first degree felony under Penal Code §22.011(f).
- Rosseau moved to quash the subsection (f) portions, arguing equal protection and due process violations and legislative intent issues, attaching legislative history.
- Trial court granted the motion to quash all enhancements; the State appealed and sought a stay, which was granted.
- The central issues: (i) whether an as-applied challenge can be resolved pre-trial and (ii) whether §22.011(f) is an element or a punishment enhancement, affecting appealability and indictment validity.
- The court proceeded to address jurisdiction and the nature of the §22.011(f) allegation, ultimately reversing and reinstating the original indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can an as-applied challenge be resolved pre-trial? | State argues yes; challenge depends on trial facts. | Rosseau argues no; as-applied challenge requires trial development. | Yes; as-applied challenge cannot be resolved pre-trial. |
| Is §22.011(f) an element or a punishment enhancement? | State contends it is an element necessity to convict first degree. | Rosseau contends it is only a punishment enhancement. | Section 22.011(f) is an element; it elevates degree based on bigamous conduct. |
Key Cases Cited
- Moreno v. State, 807 S.W.2d 327 (Tex. Crim. App. 1991) (State may appeal orders that effectively terminate prosecution)
- State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (pretrial rulings that effectively terminate the prosecution allow appeal)
- Morgan v. State, 160 S.W.3d 1 (Tex. Crim. App. 2004) (distinguishable; not applicable when order alters charging face)
- Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005) (distinguishes enhancement vs. element; prior conviction as element when structure shows higher degree)
- Reyes v. State, 314 S.W.3d 74 (Tex. App.—San Antonio 2010) (element vs. enhancement in charged offense structure)
- Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008) (as-applied challenges are inappropriate pre-trial; decision on facial vs. as-applied)
- Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) (enhancement notice vs. indictment requirement)
- Reyes v. State, 314 S.W.3d 74 (Tex. App.—San Antonio 2010) (analysis of when a fact is an element vs. enhancement)