Quincee English v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00092-CR
___________________________
QUINCEE ENGLISH, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1705897
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
The State charged Appellant Quincee English with solicitation of prostitution.
See Tex. Penal Code Ann. § 43.021(a) (“A person commits an offense if the person
knowingly offers or agrees to pay a fee to another person for the purpose of engaging
in sexual conduct with that person or another.”).1
English moved to quash the indictment,2 raising facial and as-applied
constitutionality challenges to Penal Code Section 43.021 and complaining that the
way the statute “is worded and the way it is applied and enforced only prosecutes
men.”3 To his motion, he attached documents purporting to show that in the cases
filed and accepted in Tarrant County since Section 43.021’s September 1, 2021
effective date, “there has not been one female charged under the statute.” After the
1
Solicitation of prostitution as charged in this case is a state-jail felony. See Tex.
Penal Code Ann. § 43.021(b) (stating that the offense is a state-jail felony unless other
conditions—not applicable here—are met that enhance the offense to a third- or
second-degree felony); see also id. § 12.35(a)–(b) (stating that the punishment range for
a state-jail felony is not more than 2 years or less than 180 days and up to a $10,000
fine).
In his motion to quash, English claimed that the Arlington Police Department
2
had used an internet advertisement “to try to induce young males, with pornographic
photos and the promise of sex, to become brand new felons by violating [Section]
43.021” and that “[a] female police officer, who was apparently not the same person
in the photo accompanying the ad, included her phone number with the ad and
waited for interested men to contact her.”
3
English raised his challenges under both the state and federal constitutions’
“guarantees of equal protection and due process.” However, as pointed out by the
State, English makes no due-process arguments on appeal.
2
trial court denied the motion, English made an open plea of guilty and received four
years’ deferred adjudication community supervision and a $200 fine.
In a single issue, English complains that the trial court erred by denying his
motion. See Dillehey v. State, 815 S.W.2d 623, 626 (Tex. Crim. App. 1991) (stating that
a defendant may appeal a pretrial-motion ruling despite receiving deferred
adjudication and without an adjudication of guilt).
Because English cannot make an as-applied challenge in his pretrial motion,4
and because he has failed to meet the facial-challenge requirements,5 we overrule his
sole issue and affirm the trial court’s order.
4
An “as-applied” challenge should be brought during or after a trial on the
merits so that the trial court and reviewing courts have the case’s particular facts and
circumstances to determine whether the statute has been applied to the defendant in
an unconstitutional manner. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910, 912
(Tex. Crim. App. 2011) (orig. proceeding) (“Courts must evaluate the statute as it has
been applied in practice against the particular challenger.”); see also London v. State, 490
S.W.3d 503, 507–08 (Tex. Crim. App. 2016) (stating that to prevail on an as-applied
challenge, “it is incumbent upon the appellant to show that the statute operates
unconstitutionally as applied to him in his situation” and that “[b]ecause such inquiries
can often require factual development . . . an as-applied challenge should not generally
be raised prior to trial”); State v. Empey, 502 S.W.3d 186, 189 (Tex. App.—Fort Worth
2016, no pet.) (stating that a pretrial motion to quash an indictment may be used only
for a facial—and not for an as-applied—challenge). See generally Diruzzo v. State, 581
S.W.3d 788, 798 (Tex. Crim. App. 2019) (stating that a motion to quash is an
acceptable vehicle for a facial challenge to an indictment); 42 George E. Dix & John
M. Schmolesky, Tex. Practice, Criminal Practice & Procedure § 26:30.50 (3d ed. 2022)
(noting that an as-applied challenge is “inappropriate for resolution by a pretrial
challenge to the charging instrument”).
We must presume Section 43.021 is constitutional, see Allen v. State, 614 S.W.3d
5736, 740 (Tex. Crim. App. 2019), and to successfully challenge its facial
constitutionality, English had to establish that no set of circumstances existed under
3
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 27, 2023
which the statute would be valid. See id. at 741; Peraza v. State, 467 S.W.3d 508, 514–
16 (Tex. Crim. App. 2015) (stating that the defendant must establish that the statute
always operates unconstitutionally in all possible circumstances and that only statutory
applications that actually authorize or prohibit conduct are considered). Further, we
consider the statute as it is written rather than how it may operate in practice, Peraza,
467 S.W.3d at 515, and Section 43.021’s gender-neutral language does not
discriminate against any suspect class or implicate a fundamental right. See Robles v.
State, 585 S.W.3d 591, 595–96 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d)
(stating that strict scrutiny did not apply to due-process complaint about prostitution
statute when the appellant failed to show a fundamental right to engage another adult
in consensual sexual conduct for a fee); see also State v. Rosseau, 396 S.W.3d 550, 557 n.7
(Tex. Crim. App. 2013) (stating that where no suspect classification or fundamental-
right violation is involved, a difference in treatment need be only rationally related to a
valid public purpose to withstand equal-protection scrutiny).
4