                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00134-CR

                                     Shaun Eric BRANSON,
                                           Appellant

                                              v.
                                         The STATE of
                                      The STATE of Texas,
                                            Appellee

                    From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR12604
                             Honorable Ron Rangel, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: June 12, 2013

AFFIRMED

           Shaun Eric Branson was charged with sexual assault of a child pursuant to section

22.011(a)(2) of the Texas Penal Code. After a jury trial, Branson was found guilty and sentenced

to five years confinement. Prior to trial, however, Branson filed a motion to set aside the

indictment. In his motion, Branson contended that section 22.011 is unconstitutional under both

the federal and state constitutions because (1) it does not require the State to prove that Branson

knew or should have known the complainant was under seventeen years of age at the time of the

alleged offense, and (2) it does not recognize an affirmative defense based upon such a
                                                                                     04-12-00134-CR


reasonable belief. The trial court denied the motion to set aside the indictment. It is this ruling

upon which Branson bases this appeal.

       We review a trial court’s denial of a motion to quash an indictment de novo. Lawrence v.

State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007).

       In a recent opinion from this court, Byrne v. State, 358 S.W.3d 745, 747 (Tex. App.—San

Antonio 2011, no pet.), the appellant made the same argument on appeal that Branson makes —

“the trial court erred in denying his motion to quash because the statute does not have a mens rea

requirement and does not permit the affirmative defense of mistake of fact, rendering it

constitutionally infirm.” In Byrne, we rejected the appellant’s contention and affirmed the trial

court’s judgment. And, even more recently, this court again considered the same issue in a case

that was transferred from the Fort Worth Court of Appeals, Lathan v. State, No. 04-12-00486-

CR, 2013 WL 1641166 (Tex. App.—San Antonio Apr. 17, 2013, no pet. h.). In affirming the

trial court’s judgment, we stated the following:

       Both this court and the appellate court from which this appeal was transferred
       have recently rejected the same arguments Lathan raises in the instant appeal with
       regard to the constitutionality of section 22.011. See Fleming v. State, 376 S.W.3d
       854, 857-72 (Tex. App.—Fort Worth 2012, pet. granted); Byrne, 358 S.W.3d at
       748-51. As this court explained in Byrne, “We are not persuaded that the absence
       of a mens rea requirement for section 22.011(a)(2)(A) renders the statute
       unconstitutional under the Texas Constitution.” 358 S.W.3d at 749. “Strict
       liability sex crimes are a valid exercise of the state’s authority and rationally
       support a legitimate state interest.” Id. at 750. With regard to a federal due process
       argument, this court concluded, “We hold the statute is not arbitrary and
       capricious because it serves a reasonable state interest by protecting children from
       sexual assault. We further hold the statute does not violate a fundamental right
       because the federal constitution grants neither a fundamental right to have sex
       with minors, nor an absolute prohibition against strict liability criminal statutes.
       On the contrary, when it comes to protecting children from sexual abuse, federal
       courts have consistently held strict liability penal statutes to be valid exercise of
       state power.” Id. at 751. We recognize that the Texas Court of Criminal Appeals
       has granted review in Fleming of issues similar to those raised by Lathan in this
       appeal. Until the precedent established in Fleming and Byrne is reversed,
       however, we will continue to follow our existing precedent.


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Lathan, 2013 WL 1641166, at *3. Similarly, here, we follow our existing precedent and overrule

Branson’s issues on appeal.

                                         CONCLUSION

       Based on the above authorities, we affirm the trial court’s judgment.


                                                    Karen Angelini, Justice

Do not publish




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