                          NUMBER 13-18-00572-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


BRIAN SELLERS,                                                         Appellant,

                                        v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 319th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      Last year, this Court held in Ramirez v. State that Texas Penal Code § 21.12,

which criminalizes sexual contact between an educator and student regardless of age,

does not violate substantive due process as guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution. 557 S.W.3d 717, 721 (Tex. App.—Corpus
Christi 2018, pet. ref’d) (holding that the statute “does not infringe upon a fundamental

right” and therefore declining to apply a strict scrutiny review), cert. denied, 139 S. Ct.

799 (2019); see TEX. PENAL CODE ANN. § 21.12 (West, Westlaw through 2017 1st C.S.).

In this case, appellant Brian Sellers was indicted on six second-degree-felony counts

under § 21.12 and the trial court denied his motion to declare the statute unconstitutional

and dismiss the charges. Pursuant to a plea agreement, appellant pleaded guilty and he

was sentenced to eight years’ deferred adjudication community supervision.1 On appeal,

he argues by two issues that Ramirez was incorrectly decided because: (1) consenting

adults2 have a “fundamental right” to engage in private, consensual, non-commercial

sexual relationships; and (2) § 21.12 infringes upon that right. We affirm.

                                     I. APPELLANT’S ARGUMENT

        As in Ramirez, the bulk of appellant’s brief focuses on establishing that § 21.12 is

unconstitutional because it fails to survive “strict scrutiny”—that is, it is not narrowly

tailored to serve a compelling state interest. See, e.g., Lawrence v. Texas, 539 U.S. 558,

593 (2003). Strict scrutiny is applied as a constitutional test only if the allegedly infringed

liberty interest is a “fundamental right.” Id.

        Appellant concedes that the “facts, subject matter, and issues” in his case are

“nearly identical” to those considered in Ramirez. He argues, though, that we erred in

Ramirez by concluding that the United States Supreme Court’s opinion in Obergefell v.

Hodges, 135 S. Ct. 2584 (2015), did not recognize “sexual intimacy” as a “fundamental


       1 Appellant was also charged with four counts of authorizing or inducing sexual conduct or sexual

performance by a child. See TEX. PENAL CODE ANN. § 43.25 (West, Westlaw through 2017 1st C.S.). These
charges were dismissed as part of the plea agreement.
        2 The student with whom Sellers was alleged to have engaged in an improper relationship was 17
or 18 years old at the time of the alleged offenses. See id. § 22.011(c)(1) (Westlaw through 2017 1st C.S.)
(defining “child” as “a person younger than 17 years of age”).

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right.” See Ramirez, 557 S.W.3d at 720 (“We will not broadly construe Obergefell’s

discussion of intimacy as a determination that intimacy, particularly sexual intimacy,

between consenting adults is a fundamental right, as Ramirez urges.”). In arguing that

Obergefell “specifically stated that the kind of intimacy it discusses is sexual intimacy and

that sexual intimacy is a fundamental right,” appellant points to the following paragraph:

       This is not the first time the Court has been asked to adopt a cautious
       approach to recognizing and protecting fundamental rights. In Bowers, a
       bare majority upheld a law criminalizing same-sex intimacy. See [Bowers
       v. Hardwick], 478 U.S.[186], 186, 190–95 [(1986)]. That approach might
       have been viewed as a cautious endorsement of the democratic process,
       which had only just begun to consider the rights of gays and lesbians. Yet,
       in effect, Bowers upheld state action that denied gays and lesbians a
       fundamental right and caused them pain and humiliation. As evidenced
       by the dissents in that case, the facts and principles necessary to a correct
       holding were known to the Bowers Court. See id. at 199 (Blackmun, J.,
       joined by Brennan, Marshall, and Stevens, JJ., dissenting); id. at 214
       (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why
       Lawrence held Bowers was “not correct when it was decided.” 539 U.S. at
       578. Although Bowers was eventually repudiated in Lawrence, men and
       women were harmed in the interim, and the substantial effects of these
       injuries no doubt lingered long after Bowers was overruled. Dignitary
       wounds cannot always be healed with the stroke of a pen.

Obergefell, 135 S. Ct. at 2606 (emphasis supplied by appellant). Appellant contends that

“[t]his Court now has a second bite at the apple so to speak with a unique opportunity to

correct its opinion in Ramirez and to recognize Appellant’s fundamental right to sexual

intimacy in a private, non-commercial, consensual sexual relationship.”

                                      II. DISCUSSION

       Under the doctrine of stare decisis, courts should follow clearly established

precedent on matters of law in order to “promote judicial efficiency and consistency,

encourage reliance on judicial decisions, and contribute to the integrity of the judicial

process.” Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000). “But if we

conclude that one of our previous decisions was poorly reasoned or is unworkable, we
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do not achieve these goals by continuing to follow it.” Id. at 571–72.

       Because our decision in Ramirez was not “poorly reasoned or unworkable,” we

decline to revisit it. First, although the actions of the higher courts in this case have no

precedential value, see Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 525

U.S. 943, 943 (1998) (Stevens, J., on denial of petition for writ of certiorari) (“[T]he denial

of a petition for a writ of certiorari is not a ruling on the merits.”); Sheffield v. State, 650

S.W.2d 813, 814 (Tex. Crim. App. 1983) (“[S]ummary refusal of a petition for discretionary

review by this Court is of no precedential value.”), it is noteworthy that the Texas Court of

Criminal Appeals and the United States Supreme Court have denied a petition for

discretionary review and a petition for writ of certiorari, respectively, in Ramirez.

       Second, as we noted in Ramirez, the only liberty interest asserted in Obergefell

was the right of same-sex couples to marry. 557 S.W.3d at 720 (citing Obergefell, 135

S. Ct. at 2602). The petitioners in that case did not assert the right to sexual intimacy

between consenting adults. Thus, although the Obergefell Court may have suggested

that Bowers “in effect” concerned a “fundamental right,” that statement was dicta. See,

e.g., Wolfe v. State, 120 S.W.3d 368, 374 (Tex. Crim. App. 2003) (Keasler, J., dissenting)

(noting that “[s]tatements that are unnecessary to the issue upon which the Court is

writing” are dicta and not binding under stare decisis). And because the statement was

made in passing, without deliberate consideration or analysis, we cannot say that it

constitutes controlling precedent. Cf. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—

Houston [14th Dist.] 1999, pet. denied) (noting that “judicial dictum,” a statement “made

very deliberately after mature consideration and for future guidance in the conduct of

litigation,” is “at least persuasive and should be followed unless found to be erroneous”)



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(citing Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964)).

       Third, even if the above-quoted paragraph in Obergefell may be considered

something more than mere dicta, it is not an unequivocal declaration that sexual intimacy

is a fundamental constitutional right, as appellant contends. In observing that “in effect,

Bowers upheld state action that denied gays and lesbians a fundamental right,” the

Obergefell Court was alluding to Lawrence, which explicitly overruled Bowers in part

because the Bowers Court “misapprehended the claim of liberty there presented”:

       The Court began its substantive discussion in Bowers as follows: “The
       issue presented is whether the Federal Constitution confers a fundamental
       right upon homosexuals to engage in sodomy and hence invalidates the
       laws of the many States that still make such conduct illegal and have done
       so for a very long time.” [Bowers, 478 U.S.] at 190. That statement, we
       now conclude, discloses the Court’s own failure to appreciate the extent of
       the liberty at stake. To say that the issue in Bowers was simply the right to
       engage in certain sexual conduct demeans the claim the individual put
       forward, just as it would demean a married couple were it to be said
       marriage is simply about the right to have sexual intercourse. The laws
       involved in Bowers and here are, to be sure, statutes that purport to do no
       more than prohibit a particular sexual act. Their penalties and purposes,
       though, have more far-reaching consequences, touching upon the most
       private human conduct, sexual behavior, and in the most private of places,
       the home. The statutes do seek to control a personal relationship that,
       whether or not entitled to formal recognition in the law, is within the liberty
       of persons to choose without being punished as criminals.

Lawrence, 539 U.S. at 566–67. This passage illustrates that the liberty interest claimed

in Bowers encompassed more than just sexual behavior—instead, it also implicated the

petitioner’s right to be free from government interference in “personal relationship[s].”

See id. at 567 (“When sexuality finds overt expression in intimate conduct with another

person, the conduct can be but one element in a personal bond that is more enduring.”).

Accordingly, when read in the proper context, Obergefell’s assertion that the statute at

issue in Bowers “in effect . . . denied” a “fundamental right” does not reveal an intent by

the Court to accord “fundamental” status to the right to engage in private, consensual
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sexual relations.

       For the foregoing reasons, Obergefell sheds no light on the character of the liberty

interest asserted by appellant in this case. Therefore, we rely on prior case law such as

Lawrence, which applied a “rational basis” standard in determining the constitutionality of

a law infringing on the right to consensual sexual relations, thereby clearly indicating that

the Supreme Court considers this right to be non-fundamental. See Lawrence, 539 U.S.

at 578 (“The Texas statute furthers no legitimate state interest which can justify its

intrusion into the personal and private life of the individual.”); Ex parte Abell, 613 S.W.2d

255, 266 (Tex. 1981) (“[W]here a privacy interest has been recognized but not afforded

‘fundamental’ status, the [S]tate need only show a rational basis for its interference or

regulation in the area.”); Toledo v. State, 519 S.W.3d 273, 281 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d) (“Given the limits expressed in Lawrence, and its application of a

rational basis test in that case, we apply the rational basis test and examine whether

section 21.12 furthers a legitimate state interest.”); see also Agostini v. Felton, 521 U.S.

203, 237 (1997) (“If a precedent of this Court has direct application in a case, yet appears

to rest on reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of overruling

its own decisions.”).

       As in Ramirez, because appellant has not asserted a “fundamental right,” we do

not address his arguments regarding whether § 21.12 survives strict scrutiny.                     See

Ramirez, 557 S.W.3d at 722; see also TEX. R. APP. P. 47.1.3




       3   Appellant does not dispute that the statute would satisfy the “rational basis” test.

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                                     III. CONCLUSION

       We overrule appellant’s issues and affirm the judgment of the trial court.


                                                              DORI CONTRERAS
                                                              Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of May, 2019.




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