            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1529-10



                      MARK ALEXANDER FLEMING, Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SECOND COURT OF APPEALS
                         DENTON COUNTY

       Per curiam. M EYERS, J., not participating.

                                       OPINION

       Mark Alexander Fleming was convicted of four counts of aggravated sexual assault

of a child under Texas Penal Code Section 22.021(a)(1)(B)(iii), (2)(B), Texas’s strict-liability

child-sexual-assault statute. Before trial, Fleming filed a motion to quash the indictment,

challenging the constitutionality of the statute under the Due Process Clause to the United

States Constitution and the Texas Constitution’s due course of law provision. Fleming

claimed that the statute is unconstitutional because it does not have a mens rea requirement
                                                                                 FLEMING—2
and does not permit the affirmative defense of mistake of fact. The trial judge denied the

motion.

       Following his no contest plea and sentencing, Fleming appealed the trial judge’s

ruling to the Fort Worth Court of Appeals.1 The court of appeals held that, under the Due

Process Clause, the statute is constitutional.2 The court declined to address Fleming’s due

course of law claim, holding that Fleming failed to preserve the issue for appeal because he

failed to assert or brief “an argument that the due course of law analysis under the Texas

constitution is different or provides greater protections” than the Due Process Clause.3 Our

review of Fleming’s motion reveals that this conclusion was improvident. With respect to

the constitutionality of our strict-liability child-sexual-assault statute, an issue never decided

by the Supreme Court of the United States, Fleming briefed the issue under both

constitutional provisions, describing the pertinent history of each constitutional provision in

support of his specific argument. We therefore vacate the court of appeals’s judgment and

remand this case so the court of appeals can reconsider Fleming’s contention that Section

22.021(a)(1)(B)(iii), (2)(B) violates Texas’s due course of law provision. In doing so, the

court of appeals will be required to decide the scope of the protections afforded by Texas’s

due course of law provision as it applies in this case. Thus, the court must discern whether




       1
           323 S.W.3d 540 (Tex. App.—Fort Worth 2010).
       2
           Id. at 547.
       3
           Id. at 543.
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the provision, based on Fleming’s argument and supporting authority, provides greater,

lesser, or the same protections as it federal analog.4




DATE DELIVERED: June 15, 2011
PUBLISH




       4
           See e.g., Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998).
