CHRISTY BRIGETTE DARLINGTON, Appellant v. THE STATE OF TEXAS, Appellee
Opinion By Justice Morris
After the trial court denied his motion to quash the indictment, Christy Brigette Darlington pleaded nolo contendre to the offense of sexual assault of a child. On appeal, appellant challenges the State's failure to allege and prove he knew the victim was under the age of seventeen. He also argues that the absence of a culpable mental state with regard to the victim's age makes the statute under which he was charged unconstitutionally vague, deprives him of his Sixth Amendment right to present a meaningful defense, and violates the due course of law provisions of the Texas Constitution. For the reasons that follow, we affirm the trial court's judgment.
The State indicted appellant for sexual assault of a child. The indictment tracked the language of Texas Penal Code section 22.011, alleging in pertinent part that appellant “did intentionally and knowingly cause the penetration of the female sexual organ and anus of the [complainant], a child, who was not then the spouse of [appellant], by an object to-wit: the sexual organ, hand finger and tongue of the [appellant].” See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011). Appellant filed a pretrial motion to quash complaining the indictment lacked the required specific intent element of knowing the victim was under seventeen years of age. The trial court denied appellant's motion and sentenced him in accordance with a plea bargain agreement with the State. Appellant then filed a motion for new trial reurging the arguments in his motion to quash and contending for the first time that the U.S. Supreme Court holding in United States v. Flores–Figueroa, 129 S.Ct. 1886 (2009), called into question existing Texas court rulings, which hold the statute does not require the State to allege and prove that appellant knew the victim was under seventeen at the time of the offense. The trial court denied appellant's motion for new trial. This appeal followed.
We review de novo a trial court's denial of a motion to quash an indictment. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007). In most circumstances, a charging instrument which tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996). A motion to quash should be granted only when the language describing the accused's conduct is so vague or indefinite that it fails to give the accused adequate notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988). In his motion to quash, appellant challenged the sufficiency of the indictment because it did not allege that he knew the complainant was under seventeen years of age. Appellant acknowledges, however, that existing case law holds the State is not required to allege or prove that he knew the complainant's age in a prosecution for sexual assault of a child. See Vasquez v. State, 622 S.W.2d 864, 865–66 (Tex.Crim.App.1981) (former statutory rape law under now repealed section 21.09 of the Texas Penal Code); Mateo v. State, 935 S.W.2d 512, 514 (Tex.App.—Austin 1996, no pet.) (current statute). Accordingly, appellant's complaint about the trial court's denial of his motion to quash based on the failure of the indictment to allege that he knew complainant was under age seventeen is not well taken.
Appellant also asserts that section 6.02 of the penal code requires the State to prove he knew the victim's age. According to appellant, this provision imposes on section 22.011(a)(2)(A) a culpable mental state with respect to the victim's age. We first note that appellant waived his complaint by failing to raise section 6.02 as a ground in support of his motion to quash. Tex.R.App. P. 33.1(a). Even if appellant had preserved the issue for review, however, we conclude it is unmeritorious. Strict liability sex crimes have consistently been upheld despite the existence of section 6.02 since 1974. See Grice v. State, 162 S.W.3d 641, 646–47 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd).
In a related issue, appellant also argues the omission of a culpable mental state with respect to the victim's age deprived him of the statutory defenses of mistake of fact and mistake of law. The court of criminal appeals has previously held that to permit such defenses in a statutory rape case would be in contravention of clear legislative intent. Vasquez, 622 S.W.2d at 886; see also Jackson v. State, 889 S.W.2d 615, 617 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd). Accordingly, the trial court did not err in denying appellant's motion to quash on the unavailability of these statutory defenses.
To the extent that appellant argues the decision in United States v. Flores–Figueroa, 129 S.Ct. 1886, 1890 (2009), casts doubt on the continued viability of the holdings of Vasquez and Mateo, we question whether this issue was preserved for appellate review because it was not was not raised below by a written motion ruled on before trial. See Tex.R.App. P. 52.2(a)(2)(A). Even assuming appellant properly preserved this complaint, however, we are unpersuaded the case would require reversal of the trial court's ruling. The long-standing rule in Texas is that the State is not required to show that the defendant knew the victim to be under the age of seventeen in sex crimes involving children. See Vasquez, 622 S.W.2d at 865–66; Mateo, 935 S.W.2d 512, 514; see also Johnson v. State, 967 S.W.2d 848, 850 (Tex.Crim.App.1998) (indecency with a child). Because Flores–Figueroa is a statutory construction case involving a conviction for aggravated identity theft under section 1028A(a)(1) of the United State Code, it is inapposite to the issues presented in this appeal.
Appellant also contends that section 22.011 is unconstitutionally vague. Specifically, he argues that the offense's lack of any mental element relating to his knowledge of the victim's age forces him to guess at what conduct is permitted and what conduct is prohibited. He further asserts the statute (1) deprived him of his sixth amendment right under the U.S. Constitution to raise the defense that he did not know the victim was under age seventeen, and (2) violated the due course of law provisions of the Texas Constitution. As noted above, appellant did not specifically challenge the statute under which he was charged in the trial court below. Instead, he challenged the sufficiency of the indictment. As such, he has failed to preserve these complaints for appellate review. See Tex.R.App. P. 33.1.
We also find no merit to appellant's arguments under the Sixth Amendment or the due course of law requirements of the Texas Constitution.1 The cases on which appellant relies to support his challenge under the Sixth Amendment involve interpretations of evidentiary rules and trial court evidentiary rulings. See Holmes v. South Carolina, 547 U.S. 319 (2006); Michigan v. Lucas, 500 U.S. 145 (1991); Crane v. Kentucky, 476 U.S. 683 (1986). Nothing in these cases suggest that appellant's inability to raise his lack of knowledge of the victim's age as a defense is unconstitutional under the Sixth Amendment. And appellant has cited no case indicating that his alleged belief the victim was over seventeen years of age constituted a defense of constitutional dimensions. We reject appellant's challenge based on the Sixth Amendment.
We now turn to appellant's challenges under the Texas due course of law provisions. In his brief, appellant concedes that his challenge based on the due course of law provisions of the Texas Constitution are to be construed identically to those made under the substantive due process requirements of the federal constitution. Unless the right infringed upon is deemed fundamental, a statute will satisfy due process so long as it bears some reasonable relation to a legitimate state objective. Reno v. Flores, 507 U.S. 292, 301–305 (1993). Texas has a legitimate objective in protecting the health and safety of its children. See Scott v. State, 36 S.W.3d 240, 242 (Tex.App.—Houston [1st Dist.] 2001, pet. ref'd.). And Texas courts have consistently upheld statutes designed to protect children from certain sex offenses even when they do not require knowledge of the victim's age. See, e.g., Vasquez, 622 S.W.2d at 865; Johnson, 967 S.W.2d at 849 (knowledge of victim's age not element of rape or indecency with a child); Hicks v. State, 15 S.W.3d 626, 631 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd) (rejecting a due course of law challenge to section 22.011(a)(2)(A)). The force of these opinions compels the conclusion that section 22.011(a)(2)(A) does not offend Texas due course of law provisions. The statute rationally furthers the state's objective by placing the risk of mistake about the victim's age on the older, more mature person involved and, thus, conforms to the legislature's intent to preclude mistake as a defense. See Vasquez, 622 S.W.2d 864; Johnson, 967 S.W.2d 848; and Hicks, 15 S.W.3d 626. We therefore reject appellant's challenge under the due course of law provisions of the Texas Constitution.
Having found no merit to any of appellant's complaints, we affirm the trial court's judgment.
1. FN1. Appellant argues both of these grounds together in his brief, citing exclusively to federal case law.
JOSEPH B. MORRIS JUSTICE