Mark Fleming v. State , 323 S.W.3d 540 ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-215-CR
MARK FLEMING APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Appellant Mark Fleming entered a negotiated plea of guilty to aggravated
sexual assault of a child younger than fourteen years of age. 1 The trial judge
sentenced Fleming to ten years’ confinement, suspended imposition of the sentence,
and placed him on ten years’ community supervision. Among the conditions of
punishment, Fleming must register as a sex offender. W e will affirm.
1
 See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp.
2009).
In four points, Fleming argues that the Texas Penal Code provision under
which he was convicted, section 22.021, is unconstitutional under the federal due
process and the Texas due course of law provisions because of its:
failure to require the State to prove that [Fleming] had a culpable
mental state (“mens rea”) relating to the alleged victim’s age when
engaging in the conduct alleged; and . . . its failure to recognize an
affirmative defense based on [Fleming’s] reasonable belief that the
alleged victim at the time was 17 years of age or older. 2
W e disagree.
The federal constitution provides: “No State shall . . . deprive any person of
life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV,
§ 1. Our state constitution provides: “No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner disfranchised, except by
the due course of the law of the land.” Tex. Const. art. I, § 19. Although Fleming has
briefed both federal and state due process arguments, because Fleming has not
asserted or briefed an argument that the due course of law analysis under the Texas
constitution is different or provides greater protections than the due process clause
of the United States Constitution, we apply the analysis under the United States
Constitution only. See Pena v. State, 285 S.W .3d 459, 464 (Tex. Crim. App. 2009)
(by failing to raise it at trial, defendant forfeited claim that the Texas constitution’s
due course of law clause provided more protection than due process under the
2
 The judgment reads that the “age of the victim at the time of the offense
was 13.”
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federal constitution with respect to the destruction of potentially exculpatory
evidence); 3 see also Alobaidi v. Univ. of Tex. Health Science Ctr. at Houston, 243
S.W .3d 741, 748–49 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (analyzing
due process claim under federal constitution guarantees only where appellant did
not argue on appeal that Texas constitution’s due course of law clause provided
different protections than due process under the federal constitution). And even
though Fleming does not refer to his claims as being either procedural or substantive
due process arguments, he does not argue that the process depriving him of his
liberty is deficient; rather, Fleming argues that the absence of a mens rea or
mistake-of-age component to section 22.021 is a wrongful government action
irrespective of the procedure in place to guarantee fairness. Thus, we interpret
Fleming’s arguments to be substantive due process claims. See Zinermon v. Burch,
494 U.S. 113, 124–25, 110 S. Ct. 975, 982–83 (1990).
Substantive due process protects citizens against arbitrary or wrongful state
actions, regardless of the fairness of the procedures used to implement them.
County of Sacramento v. Lewis, 523 U.S. 833, 845–46, 118 S. Ct. 1708, 1716
(1998). In assessing whether a government regulation impinges on a substantive
due process right, the first step is to determine whether the asserted right is
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 After indictment, Fleming filed a motion to quash, setting forward the same
points he now asserts on appeal. Neither in his motion to quash at the trial court nor
in his appeal before us has Fleming asserted that the Texas Due Course of Law
provision proves greater protections that its federal counterpart.
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fundamental. See Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003)
(discussing two-step process in analyzing a substantive due process claim). Rights
are fundamental when they are implicit in the concept of ordered liberty or deeply
rooted in this nation’s history and tradition. Immediato v. Rye Neck School Dist., 73
F.3d 454, 460–61 (2d Cir.), cert. denied, 519 U.S. 813 (1996) (citing Moore v. East
Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977)). W here the right
infringed is fundamental, strict scrutiny is applied to the challenged governmental
regulation. Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 1448 (1993). But
where the claimed right is not fundamental, the governmental regulation need only
be reasonably related to a legitimate state objective to survive constitutional review.
Flores, 507 U.S. at 306, 113 S. Ct. at 1449. Thus, our first inquiry is to determine
whether there is a fundamental right entitling individuals to a mens rea component
or a mistake-of-age defense in a statutory rape scheme.
It is a basic principle of criminal law that an actor should not be convicted of
a crime if he had no reason to believe that the act he committed was a crime or that
it was wrongful. Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 244
(1952). An intent requirement was the general rule at common law. Id. To be sure,
the absence of a mens rea requirement in a criminal statute is a significant departure
from longstanding principles of criminal law. Staples v. United States, 511 U.S. 600,
605, 114 S. Ct. 1793, 1797 (1994). Nevertheless, strict liability crimes—that is,
crimes defined without any culpable state of mind—are known at law. Id. W hen
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strict liability is imposed, the actor is deemed to have had sufficient notice
concerning the risk of penal sanction inherent in the proscribed activity, and it is not
unjust to impose criminal liability without the necessity of proving moral culpability.
United States v. Freed, 401 U.S. 601, 613 n.4, 91 S. Ct. 1112, 1120 n.4 (1971). It
has been written that “the existence and content of the criminal prohibition in these
cases are not hidden; the defendant is warned to steer well clear of the core of the
offense (as in the statutory-rape case).” United States v. Wilson, 159 F.3d 280, 296
(7th Cir. 1998) (Posner, C.J., dissenting).
To this end, state legislatures have broad powers to promote the public
welfare and to create criminal offenses and impose punishment—including the
power to define an offense that excludes the element of mental culpability from its
definition. Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 242 (1957).
Indeed, a state legislature is free to define a criminal offense and bar consideration
of a particular defense so long as due process is not offended. Montana v. Egelhoff,
518 U.S. 37, 43, 116 S. Ct. 2013, 2017 (1996) (quoting Patterson v. New York, 432
U.S. 197, 201–02, 97 S. Ct. 2319, 2322 (1977)). And it is widely recognized that
adults are well aware of the strict liability aspect of statutory rape laws. See State
v. Jadowski, 680 N.W .2d 810, 821 n.42 (W is. 2004) (discussing the colloquial
phrase “[s]ixteen will get you twenty!” as a common exclamation expressing the
widespread awareness of statutory rape laws and the strict liability aspect of the
offense).
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The strict liability crime of statutory rape, in which the victim’s apparent
maturity is not a defense, is a recognized exception to the general rule requiring
mens rea in criminal statutes. Jadowski, 680 N.W .2d at 821. Traditionally,
according to the weight of authority, “mistake as to age” has also not been a defense
against the charge of statutory rape. Morissette, 342 U.S. at 251 n.8, 72 S. Ct. at
244 n.8.; United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n.2, 115 S. Ct.
464, 469 n.2 (1994).
Fleming argues that because the federal due process and the state due
course of law provisions were passed at a time when there existed a mens rea
component to statutory rape laws in this nation, the lack of a mental culpability
component offends “principle[s] of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” But the rule of tradition and
conscience, or the guide of “historical practice,” is not a first-in-time, bright-line rule.
Egelhoff, 518 U.S. at 43, 116 S. Ct. at 2017. For example, the fundamental right to
“engage in [sexual] conduct” without intervention of the government between
consenting same-sex adults is hardly a concept that existed prior to the adaptation
of either due process provision; nonetheless, the Supreme Court, in overruling its
previous holding, held this to be a fundamental right under substantive due process.
See Bowers v. Hardwick, 478 U.S. 186, 191–92, 106 S. Ct. 2841, 2844 (1986),
overruled by Lawrence v. Texas, 539 U.S. 558, 567, 123 S. Ct. 2472, 2478 (2003).
This is so because this right is implicit in the concept of ordered liberty, even though
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“there have been powerful voices [condemning] homosexual conduct as immoral”
for “centuries.” Lawrence, 539 U.S. at 571, 123 S. Ct. at 2480. “Historical practice”
is a probative guide to the ordered-liberty and deeply rooted approach in determining
fundamental rights, but it is a starting point only and not the absolute determining
guide to whether a right is fundamental. Medina v. California, 505 U.S. 437, 446 112
S. Ct. 2572, 2577 (1992).
Fleming argues that Lawrence v. Texas actually supports his position because
due process “‘extends to intimate choices by unmarried as well as married persons’”;
thus, according to Fleming, it is “simply unconstitutional” to penalize a person for
making a mistake in fact concerning a minor’s age while exercising this fundamental
right. Lawrence, 539 U.S. at 578, 123 S. Ct. at 2483. But the Lawrence Court
specifically indicated that its holding did not extend to cases involving minors, and
we easily conclude that Fleming’s reliance on Lawrence is misplaced. Id.
W e also conclude that Fleming’s attempts to find refuge for his position in the
Supreme Court’s case of United States v. X-Citement Video is equally unavailing.
513 U.S. at 72, 115 S. Ct. at 468. In X-Citement Video, an undercover police officer
ordered pornographic tapes starring an underage actress from a video company.
Id. U.S. at 66–67, 115 S. Ct. at 466. The company and its owner were indicted
under a federal statute that criminalized the knowing receipt and transportation of
child pornography. Id. The Supreme Court held that the term “knowingly” in the
statute modified the phrase “the use of a minor” and required not only a knowing
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distribution of the pornographic material, but also knowledge of the performer’s age.
Id., 513 U.S. at 71–83, 115 S. Ct. at 469–74. The X-Citement Video Court, however,
also recognized that traditionally
the presumption [of mens rea] expressly excepted “sex offenses, such
as rape, in which the victim’s actual age was determinative despite
defendant’s reasonable belief that the girl had reached age of consent.”
. . . [because] the perpetrator confronts the underage victim personally
and may reasonably be required to ascertain that victim’s age. The
opportunity for reasonable mistake as to age increases significantly
once the victim is reduced to a visual depiction, unavailable for
questioning by the distributor or receiver. Id.
Thus, X-Citement Video involves situations in which people usually would not
confront the performer depicted in the material. Fleming, however, personally
confronted the underage victim and could have learned her true age. Therefore,
X-Citement Video is distinguishable from this case and does not suggest that the
rights Fleming claims are fundamental.
The long history of statutory rape, even assuming Fleming’s argument that it
is history after the passing of both state and federal due process provisions, as a
recognized exception to the requirement of criminal intent and the well-accepted
legislative purpose for omitting scienter undermine Fleming’s argument that section
22.021 offends principles of justice deeply rooted in our nation’s history and
traditions. See United States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991), cert.
denied, 502 U.S. 1042 (1992) (reasoning that the majority rule in the United States
is that knowledge of age is not an essential element of statutory rape and this
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exclusion does not violate due process); see Ransom, 942 F.2d at 776 (“It is
generally held in the absence of statute, that the defendant’s knowledge of the age
of the female is not an essential element of the crime of statutory rape and therefore
it is no defense that the accused reasonably believed that the prosecutrix was of the
age of consent.”).
W e acknowledge that there has been movement away from strict liability for
statutory rape in recent years. See, e.g., People v. Hernandez, 61 Cal. 2d 529, 39
Cal. Rptr. 361, 393 P.2d 673 (1964) (apparently the first case to allow a mistake-of-
age defense; ruling on lenity grounds); see also Perez v. State, 111 N.M. 160, 803
P.2d 249, 250–51 (1990) (“W hile a child under the age of thirteen requires the
protection of strict liability, the same is not true of victims thirteen to sixteen years of
age. W e recognize the increased maturity and independence of today’s teenagers
and, while we do not hold that knowledge of the victim’s age is an element of the
offense, we do hold that under the facts of this case the defendant should have been
allowed to present his defense of mistake of fact.”). A minority of states allow some
form of a “mistake of age” defense by judicial decision or by statute. See Collins v.
State, 691 So. 2d 918, 923 (Miss. 1997); State v. Guest, 583 P.2d 836, 837–39
(Alaska 1978) (due process requires that the defendant be allowed to introduce
evidence regarding mistake as to age); Model Penal Code § 213.6(1) (Official Draft
& Revised Comments 1985). Under the Model Penal Code, for example, the
defense of mistaken belief should be available when the critical age is more than ten
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years of age. Model Penal Code § 213.6, cmt. 2 at 415 (Official Draft & Revised
Comments 1985). The theory is that the policies underpinning strict liability seem
less compelling as the age of the minor increases; an accused who mistakenly but
reasonably believes such a partner is above the critical age should have a defense
because he “evidences no abnormality, no willingness to take advantage of
immaturity, no propensity to corruption of minors.” Id. Thus, ironically to Fleming’s
arguments, it may be the future, and not the past, that determines that strict liability
in statutory rape cases ultimately offends concepts of ordered liberty. But see Kelley
v. State, 187 N.W .2d 810, 815 (W is. 1971) (specifically rejecting model penal code’s
mistake-of-age defense to statutory rape).
It is worthy of note that many of the cases upholding the constitutionality of
statutory rape involve an adult’s sexual contact with a person younger than that
described in section 22.021. See, e.g., W is. Stat. Ann. § 948.02(1)(b) (“W hoever
has sexual intercourse with a person who has not attained the age of 12 years is
guilty of a Class B felony”). But the majority rule in the United States is that the
defendant’s knowledge of the victim’s age is not an essential element of statutory
rape and that this exclusion does not violate due process. See Ransom, 942 F.2d
at 776–77; State v. Granier, 765 So. 2d 998, 1001 (La. 2000); Owens v. State, 724
A.2d 43, 48–49 (Md.), cert. denied, 527 U.S. 1012 (1999); State v. Yanez, 716 A.2d
759, 767 (R.I. 1998); State v. Stokely, 842 S.W .2d 77, 80–81 (Mo. 1992); State v.
Campbell, 473 N.W .2d 420, 425 (Neb. 1991); People v. Cash, 351 N.W .2d 822, 828
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(Mich. 1984); Commonwealth v. Miller, 432 N.E.2d 463, 466 (Mass. 1982); State v.
Tague, 310 N.W .2d 209, 212 (Iowa 1981); Goodrow v. Perrin, 403 A.2d 864, 866–68
(N.H. 1979); State v. Martinez, 14 P.3d 114, 116–117 (Utah App. 2000).
Although the court of criminal appeals has never considered whether section
22.021 violates due process, the court of criminal appeals has determined that the
lack of a mens rea component in section 22.021’s statutory predecessor did not
violate equal protection of the law. Ex parte Groves, 571 S.W .2d 888, 890 (Tex.
Crim. App. 1978). Our sister court in Houston, however, addressed the very issue
before us and held that section 22.021’s predecessor did not violate due process.
Scott v. State, 36 S.W .3d 240, 242 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).
W ith these decisions and the backdrop of the majority rule in this nation regarding
statutory rape in mind, we conclude that there is no fundamental right that a State
is required to include a mens rea component or a mistake-of-age defense in a
statutory rape statute. Thus, section 22.021 only needs to serve a legitimate state
purpose to be constitutional against the backdrop of substantive due process.
Flores, 507 U.S. at 306, 113 S. Ct. at 1449. W e conclude that it does.
Strict liability regarding the age of the minor furthers the legitimate government
interest in protecting children from sexual abuse by placing the risk of mistake on the
adult actor. See Ransom, 942 F.2d at 777.
Although sound reasons might be advanced on either side of the argument of
whether a mens rea component should exist or whether a mistake-of-age defense
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should exist in section 22.021, determining the line that separates what is criminal
from what is not lies peculiarly within the sphere of legislative discretion—especially,
as here, where no fundamental right is at question. See Lambert, 355 U.S. at 228,
78 S. Ct. at 242. W e have no authority to substitute our judgment for that of the
legislature unless we find the classification to be arbitrary, capricious, and without
reasonable relationship to the purposes of the statute. See Ransom, 942 F.2d at
777. W e conclude that section 22.021 is neither arbitrary nor capricious and that it
furthers the legitimate government interest of protecting children. See Flores, 507
U.S. at 305–06, 113 S. Ct. at 1448–49 (reasoning that states have a legitimate
purpose concerning welfare of minors); Scott, 36 S.W .3d at 242 (holding that
Texas’s statutory rape statute does not violate due process and furthers legitimate
interest in protecting the health and safety of children). Thus, we overrule each of
Fleming’s four points.
Having overruled all of Flemings points on appeal, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER and MEIER, JJ.; and W ILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).
PUBLISH
DELIVERED: August 5, 2010
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