            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0233-12



                                THE STATE OF TEXAS

                                              v.

                         ROBERT LOUIS ROSSEAU, Appellee

         ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTH COURT OF APPEALS
                          BEXAR COUNTY

       A LCALA, J., delivered the opinion for a unanimous Court.

                                       OPINION

       This is a pretrial appeal. In his petition for discretionary review, Robert Louis

Rosseau, appellee, challenges the judgment of the court of appeals that reversed the trial

court’s order quashing a portion of the indictment. See State v. Rosseau, No.

04–10–00866–CR, 2011 WL 6207037, at *9 (Tex. App.—San Antonio Dec. 14, 2011) (not

designated for publication). On appellee’s motion, the trial court quashed multiple paragraphs

of the indictment, which were based on a “bigamy provision” that elevates the range of
                                                                                        Rosseau - 2

punishment for sexual assault whenever “the victim was a person whom the actor was

prohibited from marrying or purporting to marry or with whom the actor was prohibited from

living under the appearance of being married under [Texas Penal Code] Section 25.01.” 1

With respect to appellee’s jurisdictional challenge, we agree with the court of appeals that



1
       Section 22.011(f) of the Texas Penal Code states,

       An offense under this section is a felony of the second degree, except that an offense
       under this section is a felony of the first degree if the victim was a person whom the
       actor was prohibited from marrying or purporting to marry or with whom the actor
       was prohibited from living under the appearance of being married under Section
       25.01.

TEX . PENAL CODE § 22.011(f). Section 25.01 of the Texas Penal Code states in relevant part,

       (a) An individual commits [the offense of bigamy] if:

              (1) he is legally married and he:

                      (A) purports to marry or does marry a person other than his spouse in
                      this state, or any other state or foreign country, under circumstances
                      that would, but for the actor’s prior marriage, constitute a marriage;
                      or
                      (B) lives with a person other than his spouse in this state under the
                      appearance of being married; or

              (2) he knows that a married person other than his spouse is married and he:
                      (A) purports to marry or does marry that person in this state, or any
                      other state or foreign country, under circumstances that would, but for
                      the person’s prior marriage, constitute a marriage; or
                      (B) lives with that person in this state under the appearance of being
                      married.

       (b) For purposes of this section, “under the appearance of being married” means
       holding out that the parties are married with cohabitation and an intent to be married
       by either party.

TEX . PENAL CODE § 25.01.
                                                                                        Rosseau - 3

it had jurisdiction to address the State’s appeal of the trial court’s order granting the motion

to quash. With respect to appellee’s argument that the bigamy provision at Texas Penal Code

Section 22.011(f) is facially unconstitutional, we disagree with the court of appeals’s

conclusion that appellee did not present a facial challenge, but agree with its alternative

holding that appellee failed to show that the statute operates unconstitutionally in all its

applications. We, therefore, affirm the judgment of the court of appeals.

                                         I. Background

       Charged with offenses committed against two complainants, appellee stands indicted

for 29 counts of sexual assault of a child and one count of indecency with a child. One of

the complainants was appellee’s step-daughter, and the other was her female friend. Each

of the 29 sexual-assault counts contained an allegation based on the bigamy provision. See

T EX. P ENAL C ODE § 22.011(f).2 If proved, the provision would elevate each sexual-assault

count from a second-degree felony to a first-degree felony. Id. Appellee filed a motion to

quash the indictment by contending (1) that the bigamy provision was being applied

inconsistently with the legislative intent and would thus subject him to greater punishment

than the sexual-assault statute contemplates; and (2) that the law violated the Equal

Protection and Due Process clauses of both the state and federal constitutions because it

“punishes people for being married.”

2
        Each sexual-assault count contained a paragraph alleging that, “at the time that the [sexual
assault] was committed, [complainant], was a person whom the defendant was prohibited from
marrying or purporting to marry or with whom the defendant was prohibited from living under the
appearance of being married under Section 25.01 of the Texas Penal Code, in that, the defendant was
legally married to a person other than [complainant].”
                                                                                    Rosseau - 4

       Appellee’s motion to quash included two exhibits describing the legislative history

for the 2005 amendment that rewrote subsection (f) of Texas Penal Code Section 22.011 and

added the provision at issue in this appeal. See T EX. P ENAL C ODE § 22.011(f); Act of May

29, 2005, 79th Leg., R.S., ch. 268, § 4.02. His exhibits suggest that the Legislature crafted

the bigamy provision to particularly target fundamentalist Mormons involved in bigamous

relationships with children. His exhibits also describe the percentage of married people in

Texas, and on this basis he argues that the bigamy provision would have widespread

application if it were applied generally to married people who are not believed to be in

bigamous relationships. Aside from the two exhibits attached to the motion to quash, no other

evidence was presented. At the hearing on appellee’s motion, the State argued that it would

be inappropriate for the trial court to consider the exhibits that address extra-textual matters

because the language of the statute is plain and serves the State’s legitimate interest in

“protecting the spouses of the individuals who are either the victim or the defendants in a

case of sexual assault.” The State further argued that sexual assault may be properly elevated

to a first-degree felony “if the victim was a person whom the actor was prohibited from

marrying,” and that the provision was applicable here because appellee was “by law

prohibited from marrying the victim because [he] was already married” to her mother.

Neither party contended that appellee was in a bigamous relationship with the victims.

       The trial court granted the motion to quash in part, striking the bigamy provision from

each of the 29 sexual-assault counts. The State appealed to the court of appeals, and the
                                                                                            Rosseau - 5

proceedings in the trial court were stayed pending resolution of the appeal. In the court of

appeals, the parties had three disputes.

        First, the parties disputed whether the court of appeals had jurisdiction over the State’s

appeal. Rosseau, 2011 WL 6207037, at *3-4. Appellee contended that the statute was a

punishment enhancement that was not required to be included in the indictment, and,

therefore, that the dismissal of that portion of the indictment could not serve as the basis for

the State’s appeal. Id. Disagreeing with appellee, the court of appeals determined that the

State had a right to appeal the trial court’s order quashing a portion of the indictment and

that, therefore, it had proper jurisdiction to entertain the State’s appeal. Id. at *4-7. This

jurisdictional dispute is the focus of the first two grounds in appellee’s petition for

discretionary review.3



3
        In his first issue, appellee contends that the court of appeals “erroneously failed to apply the
Texas Government Code to its analysis of Tex. Pen. Code § 22.011(f)’s elements; this error informed
the Court’s ruling that the State had a right of appeal.” In his second issue, appellee alleges that the
court of appeals “improperly employed case law indicating that any portion of a Penal Code statute
included in the indictment is an element of the offense . . . this error informed the Court’s ruling that
the state had a right of appeal.” In his brief on the merits following this Court’s acceptance of his
petition for discretionary review, appellee “excised” the second issue in light of this Court’s decision
in State v. Richardson, 383 S.W.3d 544 (Tex. Crim. App. 2012), and “reframed the grounds for
review to better reflect the current law.” Appellee has attempted to re-frame his first two issues by
stating, “The Fourth Court of Appeals erred by not applying the Code Construction Act to Texas
Penal Code § 22.011(f); extra-textual sources reveal that § 22.011 is a first-degree felony only when
bigamy is alleged.” Appellee argues that this “Court should determine that [Texas Penal Code
Section 22.011(f)] only applies to enhance sexual assault when bigamy is alleged, and further that
it may only enhance sexual assault if bigamy is proven at trial.” This proposed ground for review
is entirely different from the first two grounds upon which we granted discretionary review. The
State’s responsive brief objected to the improper attempt to change the grounds for review and
declined to brief the issue as re-framed. We decline to permit appellee to re-frame his first two
issues.
                                                                                          Rosseau - 6

       Second, the parties disputed whether appellee’s motion to quash had properly

presented a facial challenge to the statute’s constitutionality and, even if it had, they disputed

whether appellee had proven a constitutional violation. Id. at *9. The court of appeals agreed

with the State that appellee failed to raise a facial challenge, and, alternatively, determined

that even if he did, he failed to carry his burden of proof. Id. (holding that appellee “failed

to rebut the presumption of constitutionality by proving that the statute operates

unconstitutionally in all its applications”). This dispute is the basis of appellee’s final ground

in his petition for discretionary review.4

       Third, the parties disputed whether the statute was unconstitutional “as applied” to

appellee. The court of appeals determined that this argument was premature as a pretrial

ruling because it was dependent on the facts presented at trial. Id. at *7-9. This dispute has

been abandoned by appellee in his petition for discretionary review, and we express no

opinion on the merits of this matter.

                               II. Appellate Court Jurisdiction

       Appellee’s first two issues in his petition for discretionary review challenge the

appellate court’s jurisdiction to review the trial court’s order granting the motion to quash.

Appellee contends that the court of appeals lacked jurisdiction over the State’s appeal

because the trial court’s order granting the motion to quash pertained only to an enhancement


4
        In his third issue in his petition for discretionary review, appellee alleges that the court of
appeals “willfully avoided addressing the constitutionality of Tex. Pen. Code § 22.011(f) despite
[appellee’s] proper error preservation and argumentation; the constitutionality of § 22.011(f) is fast
becoming an important issue in Texas law.”
                                                                                          Rosseau - 7

allegation rather than to the elements of the offense. We disagree. Since the court of

appeals’s judgment in this case, this Court has expressly held that a court of appeals has

jurisdiction to address the State’s challenge to a trial court’s order dismissing a portion of an

indictment, even when that portion is the punishment-enhancement paragraph, as opposed

to elements of the offense. State v. Richardson, 383 S.W.3d 544, 548 (Tex. Crim. App.

2012). In Richardson, we explained that the plain language in Texas Code of Criminal

Procedure Article 44.01(a)(1) authorizes the State to appeal any trial court order that

“dismisses an indictment, information, or complaint or any portion of an indictment,

information, or complaint[.]” Id. (citing T EX. C ODE C RIM. P ROC. art. 44.01(a)(1)). Moreover,

we explained that, for purposes of applying the plain language of Article 44.01(a)(1), there

is no meaningful distinction between elements of the offense and enhancement allegations

contained within an indictment—both constitute “portion[s] of the indictment” under Article

44.01(a)(1). Id. Here, as in Richardson, because the quashed provisions “were alleged in the

indictment, and thus are quite literally a ‘portion of an indictment,’ Art. 44.01(a)(1) may be

invoked to permit the state’s appeal.” Id. at 547. In light of Richardson, we overrule

appellee’s first two issues.5

         III. Facial Challenge to the Constitutionality of the Bigamy Provision

       In his third issue, appellee alleges that the court of appeals erred by concluding that



5
         Although ordinarily we might remand this case to the court of appeals to consider this matter
in light of the more recent authority, we resolve this pretrial appeal so that the trial court may more
quickly conduct a trial on the merits.
                                                                                        Rosseau - 8

he failed to properly present a facial challenge to the constitutionality of the bigamy

provision. See T EX. P ENAL C ODE § 22.011(f). He further contends that the provision, if

interpreted in accordance with the State’s suggested reading, is facially unconstitutional

because it treats all married people more harshly than it treats unmarried people in violation

of the Due Process and Equal Protection clauses of the state and federal constitutions.

       A. Appellee Did Present Challenge to Facial Constitutionality of Statute

       The court of appeals determined that “neither the text of his motion to quash nor his

argument in the trial court raised a facial challenge to the constitutionality of [the bigamy

provision].” See Rosseau, 2011 WL 6207037, at *8 (citing Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009)).6 We disagree. Although it could have been more clearly

presented, appellee’s motion adequately presented both facial and “as applied” challenges

to the constitutionality of the bigamy provision.

       Rather than focus on the presence of magic language, a court should examine the

record to determine whether the trial court understood the basis of a defendant’s request. See

Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (noting that issue preserved

without having been explicitly stated if “there have been statements or actions on the record

that clearly indicate what the judge and opposing counsel understood the argument to be”)



6
        We review a trial court’s ruling on a motion to quash an indictment de novo because the
sufficiency of a charging instrument is a question of law. Smith v. State, 309 S.W.3d 10, 13-14 (Tex.
Crim. App. 2010). Generally, when an indictment tracks the language of a statute, it will satisfy
constitutional notice requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
                                                                                   Rosseau - 9

(citing Resendez v. State, 306 S.W.3d 308, 315-16 (Tex. Crim. App. 2009)); Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (in issue-preservation context, there are

“no technical considerations or form of words to be used. Straightforward communication

in plain English will always suffice.”).

       By arguing that the bigamy provision creates a “class of individuals” (e.g., married

people) and selects those individuals for enhanced punishment, appellee’s motion to quash

presented more than merely a challenge to the constitutionality of the statute as it applied to

him. The motion stated,

       [T]he application [of Texas Penal Code § 22.011(f)] to the present indictment
       is inappropriate. It creates a “class of individuals” who would potentially
       receive a greater punishment than TPC, Sec. 22.011 contemplates. As applied,
       it violates the equal protection and the due process sections of both the State
       and Federal Constitutions. It punishes people for being married. Clearly, the
       legislature did not intend this section to have that effect. To allow this
       enhancement would lead to absurd and legislatively unintended consequences.

       At the hearing on the motion, the parties disputed whether the bigamy provision, if

interpreted to apply anytime either a defendant or complainant is married at the time of a

sexual assault, could serve any legitimate purpose with respect to married people who were

not in bigamist relationships. Defense counsel argued that the statute was facially

unconstitutional by referring to “a class of individuals” who are being punished more

severely for being married. Counsel stated,

       My entire argument is that application of this present indictment to [appellee]
       would put him in a class of individuals that would potentially receive greater
       punishment than 22.011 contemplates. As such, it’s violative of his right to
       equal protection and due process under both state and federal Constitution[s],
                                                                                    Rosseau - 10

       under the Texas State Constitution. . . . I believe that this statute punishes
       people for being married, that the application as to [appellee] would, in fact,
       punish him for being married. I do not believe that that was the intention of
       the Legislature at all. I believe the legislation was specifically directed
       towards a specific unique legal moral political circumstance that was
       happening in our state and nearby states, and that the State should be precluded
       from the enhancement that they seek in this case.

The State’s prosecutor replied that the statute was “clear on its face,” that the statute plainly

is “targeted at the sanctity of marriage” because it protects married victims, and that the

indictment properly tracked the language of the statute.

       At the conclusion of the hearing, the trial court granted the motion to quash by

referring to the intent of the statute generally and by discussing its specific application to

appellee. The trial court stated,

       I don’t believe that the statute was ever intended to say we’re going to take this
       bigamy statute, we’re going to enhance it over here, even though the person
       who is charged, the evidence is not going to show that they were engaging in
       bigamy or doing any of the things that is listed in this bigamy statute. When
       it was first presented to me, I thought that the fact scenario was going to show
       that not only was the person committing the offense of sexual assault but they
       were also doing something applicable under this bigamy statute, other than just
       having the status of being a married person. So I don’t see it. I think it raises
       constitutional issues . . . [and that ] does make it a proper subject for a motion
       to quash. I’m going to find that it is violative of constitutional rights[.]

       Appellee’s written motion, the parties’ arguments before the trial court, and the trial

court’s ruling each discussed the statute’s treatment of married people as a class. Although

he could have more clearly expressed the basis for his challenge, appellee’s motion

adequately apprised the trial court of his argument that the bigamy provision is facially

unconstitutional in all its applications. We hold that the court of appeals erred by rejecting
                                                                                     Rosseau - 11

appellee’s argument on the ground that it was not raised.

       B. Appellee Failed to Prove that Bigamy Provision Is Facially Unconstitutional

       The court of appeals determined that “even if” a facial challenge could be discerned,

appellee had failed to rebut the presumption of constitutionality because he did not prove that

the statute operated unconstitutionally in all its applications and could never be

constitutionally applied to any defendant under any set of facts or circumstances. See

Rosseau, 2011 WL 6207037, at *9. We agree that he failed to meet his burden.

       The court of appeals cited two decisions from this Court to support its position. Id.

(citing State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908-09 (Tex. Crim. App. 2011);

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). The court of appeals properly

observed that, to prevail on a facial challenge, a party must establish that the statute always

operates unconstitutionally in all possible circumstances. See Lykos, 330 S.W.3d at 908-09;

United States v. Salerno, 481 U.S. 739, 745 (1987); Santikos v. State, 836 S.W.2d 631, 633

(Tex. Crim. App. 1992) (“A facial challenge to a statute is the most difficult challenge to

mount successfully because the challenger must establish that no set of circumstances exists

under which the statute will be valid.”). It also correctly explained that analysis of a statute’s

constitutionality must begin with the presumption that the statute is valid and that the

Legislature did not act arbitrarily or unreasonably in enacting it. Rodriguez, 93 S.W.3d at

69. Appellee, as the individual challenging the statute, has the burden to establish its

unconstitutionality. Lykos, 330 S.W.3d at 911.
                                                                                        Rosseau - 12

       The Equal Protection Clause of the Fourteenth Amendment requires that “all persons

similarly situated shall be treated alike” under the law. Plyler v. Doe, 457 U.S. 202, 216

(1982); Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000).7 Appellee contends that

the bigamy provision, if construed to enhance the range of punishment for sexual assault

anytime either the defendant or complainant is married, impermissibly punishes “married

persons” more harshly than it does non-married persons. The State disputes that the statute

treats married and unmarried people differently because the statute would apply either to a

married defendant who assaults an unmarried individual, to a married defendant who assaults

a married individual, or to an unmarried defendant who assaults a married individual. The

State contends that married and unmarried defendants are thus treated alike under the statute.

       We agree with the State to the extent it argues that the statute is not facially

unconstitutional in all its possible applications. The statute operates to elevate the offense of

sexual assault from a second-degree felony to a first-degree felony if it is alleged and proven

at trial that “the victim [of the sexual assault] was a person whom the actor was prohibited

from marrying or purporting to marry or with whom the actor was prohibited from living

under the appearance of being married under [Texas Penal Code] Section 25.01.” See T EX.



7
        Where no suspect classification or violation of a fundamental right is involved, a difference
in treatment need be only “rationally related to a valid public purpose” to withstand equal protection
scrutiny. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). “In the ordinary case, a law will be
sustained if it can be said to advance a legitimate government interest, even if the law seems unwise
or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer
v. Evans, 517 U.S. 620, 632 (1996).
                                                                                           Rosseau - 13

P ENAL C ODE §§ 22.011(f); 25.01. The “under Section 25.01” portion of the statute suggests

that the provision applies when both sexual assault and bigamous conduct are alleged.

Therefore, the statute is not facially unconstitutional because it has at least one valid

application: the punishment of bigamists who sexually assault their purported spouses. See

Lykos, 330 S.W.3d at 909 (to prevail on facial challenge, party must prove there are “no

factual circumstances” under which statute would be constitutional). Furthermore, although

appellee suggests that the statute is facially invalid because it punishes all married people

more severely than it punishes unmarried people, he also appears to concede that the statute

would be valid if its application were limited to punishing bigamists who commit sexual

assault against their purported spouses.8 Appellee has failed to argue, let alone show, that

the statute would operate unconstitutionally with respect to sexual-assault situations

involving bigamy. Because appellee has failed to show that it is unconstitutional in every

possible respect, the statute is not facially unconstitutional. See Lykos, 330 S.W.3d at 911.9


8
        For example, in his brief on the merits, appellee argues that it is the State’s “flawed
interpretation” of the bigamy provision, rather than all possible applications of the statute, that would
result in an equal protection violation. He further suggests that so long as the provision is applied
consistently with the legislative intent “to punish bigamous conduct,” it poses no constitutional
violation.
9
        Given the procedural posture, we express no opinion regarding the applicability of the
bigamy provision to appellee’s case. Because this is a pretrial appeal, the record is undeveloped and
thus we do not yet know what evidence the State will present at trial to support its allegations. In a
facial challenge to a statute’s constitutionality, we examine the statute as it is written, rather than
how it is applied in a particular case. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex.
Crim. App. 2011). Arguments pertaining to an as-applied challenge or the sufficiency of the evidence
must be reserved for another day. See, e.g., Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim.
App. 2007) (pretrial motion to quash “cannot be used to argue that the prosecution could not prove
one of the elements of the crime,” and should not lead to “mini-trial on the sufficiency of the
                                                                                           Rosseau - 14

                                          IV. Conclusion

        We affirm the judgment of the court of appeals and remand this case to the trial court

for further proceedings.




Delivered: April 17, 2013

Publish




evidence to support an element of the offense”) (internal quotation marks omitted); State v.
Rosenbaum, 910 S.W.2d 934, 942-48 (Tex. Crim. App. 1995) (dissenting op. adopted on reh’g) (“An
indictment must be facially tested by itself under the law, as a pleading; it can neither be supported
nor defeated as such by what evidence is presented at trial. . . . A fortiori, it can not be supported or
defeated by evidence presented at pretrial.”).
