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
396 S.W.3d 550
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 pretrial order quashing the portion of the
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. See
[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 penal-
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. See
MOTION TO QUASH INDICTMENT
On appeal, the State asserts that the trial court erred in quashing the subsec-
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.”
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 proven during the guilt/innocence phase in order to obtain a first degree felony conviction, and that failure to prove the subsection (f) allegation would result in submission of a lesser included offense instruction, not merely the application of a lower punishment range; therefore, the State contends the court’s order striking the subsection (f) portions of the indictment “effectively terminates the prosecution” as to the first degree felony offense over the State’s objection, thus giving it the right to appeal.
Article 44.01(a)(1) gives the State the right to appeal any trial court order that “dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint[.]” Id. This provision has been construed to mean the State may appeal any order, short of an acquittal, which has the effect of terminating the prosecution, regardless of how the order is labeled or characterized. State v. Moreno, 807 S.W.2d 327, 332 (Tex. Crim. App. 1991). In Moreno, the State
At oral argument and in his supplemental authorities, Rosseau relied on State v. Morgan, 160 S.W.3d 1 (Tex. Crim. App. 2004), but it is distinguishable from the case before us. The State in Morgan attempted to appeal from a pretrial advisory ruling by the trial court that, if the defendant were convicted of DWI as alleged in the information (which contained an enhancement paragraph alleging a prior DWI conviction), the punishment range for a Class B, not a Class A, misdemeanor would be applied. Id. at 2. The Court of Criminal Appeals, relying on Moreno, noted the trial court’s ruling affected only the punishment range and held the State had no right to appeal from the ruling because it did not affect the face of the indictment, but merely advised how the court intended to proceed at punishment if the State obtained a conviction; the order did not force an alteration of the information before trial could proceed on the information as written, and thus did not effectively terminate the prosecution under Moreno.2 Id. at 4. In contrast, here the trial court’s order quashing the allegations of bigamous conduct under section 22.011(f) altered the face of the indictment by striking the subsection (f) paragraphs from each count of sexual assault. The State’s prosecution could only proceed on the altered indictment, which now alleged second degree felonies instead of first degree felonies. See State v. Christensen, No. 05-10-00940-CR, 2011 WL 2176656, at *2 (Tex. App.—Dallas June 6, 2011, pet. ref‘d) (not designated for publication) (distinguishing Morgan and holding State had right to appeal
The question of whether the subsection (f) allegation of bigamous conduct is an element of the section 22.011(f) offense or simply a punishment enhancement is central to our jurisdictional issue because it determines whether the court’s order effectively terminates the prosecution of the offense as charged. Even though the term “enhancement” is often used rather loosely by courts and practitioners, for purposes of this discussion there is a clear distinction between a punishment “enhancement” and an “element” of an offense. An allegation of a prior conviction or other fact made for purposes of enhancement of the applicable punishment range is not a component element of the primary offense. Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005) (citing Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997)); Reyes v. State, 314 S.W.3d 74, 80 (Tex. App.—San Antonio 2010, no pet.). “An enhancement ‘increase[s] the punishment range to a certain range above that ordinarily prescribed for the indicted crime.’ It does not change the offense, or the degree of the offense, of conviction.” Calton, 176 S.W.3d at 233 (quoting Ex parte Beck, 769 S.W.2d 525, 527 (Tex. Crim. App. 1989)); see also Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011) (recognizing the difference between statutory language that increases the offense level rather than increasing the punishment). Indeed, while a defendant is entitled to written notice of a punishment enhancement allegation, it need not be pled in the indictment nor proven during the guilt/innocence phase of trial. Brooks, 957 S.W.2d at 34; Reyes, 314 S.W.3d at 80. Moreover, there can be no enhancement until a person is first convicted of an offense of a certain degree; a “true” or “not true” finding on an enhancement allegation is made during the punishment phase, after conviction of the offense. Calton, 176 S.W.3d at 233-34.
An element, on the other hand, must be pled in the indictment and proven beyond a reasonable doubt during the guilt/innocence phase of trial—it is part of the fact finder’s determination of whether the defendant is guilty of the charged offense. See Reyes, 314 S.W.3d at 81. The legislature has defined an “element of [an] offense” as (i) the forbidden conduct; (ii) the required culpability; (iii) any required result; and (iv) the negation of any exception to the offense.
Here, the text of section 22.011(f) states as follows:
An offense under this section is a felony of the second degree, except that an offense under this section is a felony of
the first degree if 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 Section 25.01.
Similarly, here, section 22.011(f) provides that sexual assault is a second degree felony “except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying....”
Based on the foregoing analysis, we agree with the State that it has the right to appeal the trial court’s order quashing the subsection (f) portions of each count of the indictment. The effect of the subsection (f) allegation is to change the very nature of the offense by elevating the sexual assault conduct from a second degree felony to a first degree felony based on an additional fact; it does not merely enhance the applicable punishment range, but changes the degree of the offense. Because it is an element of a first degree felony sexual assault offense, we conclude the quashing of the subsection (f) allegations effectively terminated the State’s prosecution of Rosseau for first degree felony sexual assault. Accordingly, the trial court’s order is appealable by the State
STANDARD OF REVIEW
Having concluded that we have jurisdiction over this appeal, we proceed with our review of the trial court’s order. We review a trial court’s ruling on a motion to quash an indictment de novo because the sufficiency of a charging instrument is a question of law. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Generally, when an indictment tracks the language of a statute, it will satisfy constitutional requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). Further, a statute is presumed to be constitutional until it is determined otherwise, and a litigant who challenges the constitutionality of a statute has the burden of rebutting the presumption of constitutionality. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Flores v. State, 245 S.W.3d 432, 438 (Tex. Crim. App. 2008).
ANALYSIS
Issue 1: Can an As-Applied Challenge be Resolved Pre-Trial?
The State’s first issue on appeal is that the trial court erred in granting Rosseau’s pre-trial motion to quash because it raised an “as-applied” constitutional challenge and resolution of an “as-applied” challenge is dependent on the facts of the case—which had yet to be developed through trial. The State contends it is improper to resolve an “as-applied” challenge in a pre-trial proceeding. We agree.
An “as-applied” constitutional challenge 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. Lykos, 330 S.W.3d at 910. In Lykos, the court held that because a claim that a statute is unconstitutional as applied requires a review of the evidence, it cannot be properly raised by a pretrial motion to quash the indictment. Id. at 910. The trial court does not have authority to conduct a pretrial evidentiary hearing with regard to a defendant’s “as-applied” constitutional challenge to a statute. Id. at 919 (also noting a defendant is not permitted to attack the sufficiency or adequacy of an indictment by presenting evidence outside the four-corners of the indictment). Therefore, an “as applied” challenge must be brought during or after a trial on the merits because it is only then that the particular facts and circumstances of the case necessary to determine whether the statute has been applied in an unconstitutional manner have been presented. Id. at 910.
Here, the text of Rosseau’s motion to quash clearly stated an “as-applied” challenge to the constitutionality of section 22.011(f) based on federal and state equal protection and due process grounds, namely that the statute treats married defendants differently than unmarried defendants. Further, defense counsel’s argument at the hearing reinforced that he was only challenging the “application of the statute to Rosseau.” Even though no evidence was presented at the motion to quash hearing, in granting the motion the trial court reasoned, “the evidence is not going to show ... they were engaging in bigamy;” however, this pretrial ruling was made before the presentment of any evidence concerning the particular facts and circumstances of the case.
In Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008), the court noted that the purpose of a pre-trial motion such as a motion to quash the indictment is to address “those issues that can be determined before there is a trial on the general issue
It follows that a pretrial motion to quash an indictment may be used only for a facial challenge to the constitutionality of a statute. See Sheldon v. State, 100 S.W.3d 497, 505 (Tex. App.—Austin 2003, pet. ref‘d) (op. on reh‘g) (motion to quash indictment may be used only for facial challenges to statute’s constitutionality, not for an “as applied” challenge which may be brought in the trial court through a post-conviction motion) (citing State v. Rosenbaum, 910 S.W.2d 934, 946, 948 (Tex. Crim. App. 1994) (dissenting op. adopted on reh‘g)); see also Scott v. State, 322 S.W.3d 662, 665 n. 1 (Tex. Crim. App. 2010) (a statute may be challenged as unconstitutional “on its face,” which means that, by its terms, it always operates unconstitutionally, or as unconstitutional “as applied,” which means that it operates unconstitutionally with respect to the claimant because of his particular circumstances).
In his appellee’s brief, Rosseau makes an argument that section 22.011(f) is unconstitutional “on its face,” as well as in its application to Rosseau. However, neither the text of his motion to quash nor his argument in the trial court raised a facial challenge to the constitutionality of section 22.011(f). See Karenev, 281 S.W.3d at 434 (holding a facial challenge to the constitutionality of a statute may not be raised for the first time on appeal; it is a forfeitable right). In raising only an “as applied” challenge, Rosseau conceded the general constitutionality of section 22.011(f), and asserted only that the statute is unconstitutional as applied to his particular facts and circumstances; therefore, he had the burden to show that section 22.011(f), in its operation, is unconstitutionally applied to him. Lykos, 330 S.W.3d at 910 (court considering “as applied” challenge looks to challenger’s conduct alone). In the context of a pretrial motion to quash, he could not meet that burden and his “as applied” challenge fails.
At oral argument, counsel for Rosseau insisted that, in addition to the “as applied” constitutional challenge, a facial challenge can be found within his motion to quash. Even if we could discern a facial challenge within Rosseau’s motion, he has failed to rebut the presumption of constitutionality by proving the statute operates unconstitutionally in all its applications, and can never be constitutionally applied to any defendant charged under section 22.011 under any set of facts and circumstances. Id., at 908-09 (to prevail on facial challenge, party must show statute always operates unconstitutionally, in all possible circumstances); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (analysis of statute’s constitutionality must begin with presumption that statute is valid and legislature did not act arbitrarily or unreasonably in enacting it).
As in Calton and Reyes, section 22.011(f) does not merely prescribe an increased punishment range when the additional fact of bigamous conduct is proven, but requires proof of the additional fact as an element in order for the first-degree felony conviction to occur. See Calton, 176 S.W.3d at 234; see also Reyes, 314 S.W.3d at 81. Therefore, the State has the right to appeal the trial court’s order quashing the subsection (f) portions of the indictment because the order altered the face of the indictment, changed the nature of the offense on which the State’s prosecution could proceed, and effectively terminated the State’s prosecution of Rosseau for commission of first degree felony sexual assault. Rosseau’s motion to quash challenged the constitutionality of section 22.011(f) only as it applied to him. Because an “as-applied” constitutional challenge cannot be resolved through a pre-trial motion to quash prior to presentment of the evidence, we sustain the State’s first issue. This issue is dispositive of the State’s appeal, and therefore we need not address its second issue.
Based on the foregoing analysis, we reverse the trial court’s order quashing the subsection (f) portions of the indictment, reinstate the original indictment, and remand the case to the trial court for further proceedings on the original indictment.