

Opinion issued December
2, 2010

In The
Court of Appeals
For The
First District of Texas
————————————
No. 01-09-00189-CR
————————————
ALFRED
OCHOA, Appellant
V.
The State of Texas, Appellee

 

 
On Appeal from the 232nd District
Court
Harris
County, Texas

Trial Court Cause No.
1145435
 

 
 
O P I N I O N
 
          Appellant, Alfred Ochoa, appeals from a
judgment convicting him of felony assault involving dating violence as a second
offender.  See Tex. Penal Code Ann. §
22.01(a)(1), (b)(2)(A) (second assault involving dating violence is third-degree
felony) (Vernon Supp. 2010).  In four issues,
appellant contends that the evidence is legally and factually insufficient to support
his conviction, that section 22.01(b)(2) of the Texas Penal Code, which
elevates misdemeanor assault to a third-degree felony, violates the United
States and Texas Constitutions, and that he was ineffectively assisted by his
trial counsel.  We conclude that the
evidence is sufficient, the statute meets the requirements of the United States
Constitution, appellant waived his challenge based on the Texas Constitution,
and appellant failed to establish that he received ineffective assistance of
trial counsel.  We affirm.
Background
In 2007, William Crump and
appellant met at a local bar, which they frequented.  There, they would occasionally socialize,
play pool, drink, and talk.  After
approximately three years of platonic friendship, Crump and appellant began
having sexual relations.  At the time,
Crump had two other roommates who resided together in one of the two bedrooms
in Crump’s house.
For nine days, appellant resided
at Crump’s house, and the two slept together in Crump’s bed.  Crump regarded appellant as his boyfriend,
and they had sex on multiple occasions.  Crump
testified that he considered their relationship to have been of a “sexual”
nature as opposed to of a “romantic” nature. 
However, they did socialize together by frequenting bars where their
friends and associates treated appellant as Crump’s boyfriend.
On the last day that he
resided at Crump’s house, appellant loaned Crump $20.  That night, after consuming alcohol with
Crump at Crump’s house, appellant asked for the $20 back so that he could go
and purchase some crack cocaine.  Crump
refused.  He told appellant that he was “done”
with him.  Crump, being too inebriated to
drive, offered to walk appellant to the bus stop.
Halfway there, appellant,
demanding the return of the $20, began to hit and kick Crump.  Crump fell into a ditch as appellant
continued the attack.  Crump did not
fight back.  A fire marshal who happened
to be driving by stopped to assist Crump. 
The marshal got a good look at appellant before he fled.  When the police arrived, Crump was bleeding
from his nose and mouth, and his eyes were swollen.  Crump testified that his relationship with
appellant ended that night.  The next
day, appellant came to Crump’s house to apologize.  Crump’s roommate called the police, and an
officer arrested appellant.
The indictment charged appellant with intentionally
and knowingly causing bodily injury to Crump, a person with whom appellant had
a dating relationship, by striking Crump with his hand.  Appellant pleaded not guilty and proceeded to
a jury trial.  After the jury found him
guilty, appellant stipulated to two enhancement paragraphs and, pursuant to an
agreement between the parties, the court assessed his sentence to be
twenty-five years confinement in prison.
In his motion for a new trial, appellant
requested that the trial court reform the judgment to show a conviction for a
Class A misdemeanor assault and to conduct a new punishment hearing “due to the
unconstitutionality of a statute underlying the present felony
conviction.”  Specifically, appellant contends
that the statute is impermissibly vague in violation of the Due Process Clause
of the Fourteenth Amendment to the U.S. Constitution.  Nothing in his motion for a new trial
suggests that appellant was challenging the statute on the ground that it
violated the Texas Constitution.  The
trial court denied appellant’s motion for new trial.  
Sufficiency of the Evidence
          In
his first issue, appellant contends that the evidence is insufficient to sustain
his conviction for felony assault involving dating
violence as a second offender.  Specifically,
appellant challenges the proof that a “dating relationship” existed between him
and Crump.  Appellant, however, does not
challenge the legal or factual sufficiency of the evidence to support a finding
that he and Crump had an intimate, sexual relationship.  Rather, appellant’s argument turns solely on
a question of law:  whether the statutory
term “dating relationship,” properly construed, unambiguously encompasses
same-sex relationships.
 
 
 
A.      Applicable Law
          1.       Standard of
Review
          Under the Jackson standard of review, evidence is insufficient if, considering
the entire trial record, no rational fact finder could have found each element
of offense proven beyond a reasonable doubt. 
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007).  “If
the evidence establishes precisely what the State has alleged, but the acts
that the State has alleged do not constitute a criminal offense . . .
then that evidence, as a matter of law, cannot support a conviction.”  Williams, 235 S.W.3d at 750.
          An
appellate court reviews de novo a trial court’s determination of a question of
law.  Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).  Statutory construction is a
question of law.  Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009).  Therefore, an appellate court reviews, de
novo, questions of statutory construction. 
Mahaffey
v. State,
316 S.W.3d 633, 637 (Tex. Crim. App. 2010).
                    2.       Statutory Construction
          When
construing a statutory provision, a court must seek to effectuate the
“collective” intent or purpose of the legislators who enacted the statute.  See id.
(citing Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991) (citing Tex.
Const. art. II, § 1) (Texas Constitution assigns law-making function
to Legislature, law-interpreting function to judiciary)).  In identifying that intent, a court attempts
to discern the fair, objective meaning of the literal text of the statutory
provision at the time of its enactment.  See Mahaffey, 316 S.W.3d at 637 (citing Boykin, 818 S.W.2d at 785 (literal text
is only definitive evidence of what legislators had in mind)).  In discerning that meaning, a court uses the
established canons of statutory construction. 
See Williams, 253 S.W.3d at 677; Boykin,
818 S.W.2d at 785.  A court must give
effect to the plain meaning of the statutory text unless that meaning is
ambiguous or the application of that meaning would lead to absurd consequences
that the Legislature could not have intended. 
See Mahaffey, 316 S.W.3d at 638;
Boykin, 818 S.W.2d at 785.  A court construes the plain meaning of a
statutory term consistent with its meaning in common usage unless the term is
defined by statute or has acquired a technical meaning.  See Mahaffey,
316 S.W.3d at 638.  In discerning a
term’s meaning in common usage, a court may consult standard dictionaries.  See Ramos,
303 S.W.3d at 306.  
3.       Law Applicable to Felony Assault
Involving Dating Violence
 
A person
commits criminal assault if he intentionally, knowingly, or recklessly
causes bodily injury to another.  Tex. Penal Code Ann. § 22.01(a)(1).  Assault is a third-degree felony if the perpetrator
was in, or had been previously in, a “dating relationship” with the victim and
the person had been previously convicted of an offense involving dating violence.  Tex.
Penal Code Ann. § 22.01(b)(2); Tex.
Fam. Code Ann. § 71.0021(b) (Vernon 2008).  A “dating relationship” is a continuing
relationship, between individuals, of a romantic or intimate nature.  Tex.
Fam. Code Ann. § 71.0021(b). 
Neither the term “romantic” nor the term “intimate” is defined by
statute.  The existence of such a
relationship is determined by considering: (1) the length of the relationship;
(2) the nature of the relationship; and (3) the frequency and type of
interaction between the persons involved in the relationship.  Id.  “A casual acquaintanceship or ordinary
fraternization in a business or social context does not constitute a dating
relationship.”  Id. §
71.0021(c).  Appellant does not challenge
the proof to establish these three criteria, but instead focuses on whether, as
a matter of law, a “dating relationship” can exists between individuals of the
same sex.
          B.      Analysis
                   1.       Ambiguity in Applicability to Same-Sex Relationships
          Appellant contends that the term
“dating relationship” is ambiguous as to whether it applies to same-sex relationships.  He asserts that, under the rule of lenity, this
ambiguity must be resolved in his favor.
          Whether the statutory term “dating
relationship” is ambiguous concerning its applicability to same-sex
relationships is a question of first impression.  The statutory text plainly applies to “a
relationship between individuals.”  Tex Fam. Code Ann. § 71.0021(b).  The existence of a dating relationship is to
be evaluated by considering the interactions “between the persons involved[.]”  Id.  By referring to individuals and persons, the
statute does not distinguish between relationships between individuals of the
same sex and relationships between individuals of the opposite sex.  See In
re Marriage of J.B. & H.B., No. 05-09-01170-CV, 2010 WL 3399074, at *14
(Tex. App.—Dallas Aug. 31, 2010, no pet.) (interpreting statutory term “dating
relationship” to be “without regard to the sex of the members of the
relationship”).  While the statute does
not explicitly state that it applies equally to same- and opposite-sex
relationships, nothing in the statutory text suggests that its applicability to
same-sex relationship is ambiguous.  See Ford v. State, 305 S.W.3d 530, 536–37
(Tex. Crim. App. 2009) (quoting Boykin,
818 S.W.2d at 785 (“Where the statute is clear and unambiguous . . . it is not
for the courts to add or subtract from such a statute.”)).
          The rule of lenity seeks to ensure
fair warning that conduct has been criminalized by resolving any ambiguity in a
criminal statute so that it applies only to conduct clearly covered.  United
States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 1225 (1997).  The rule of lenity is another name for “the
canon of strict construction of criminal statutes.”  See id.  Unlike the rule of lenity, which strictly
construes criminal statutes, the Texas Penal Code does not require its
provisions to be strictly construed.  See Tex.
Penal Code Ann. § 1.05(a) (Vernon 2003) (“The provisions of this code
shall be construed according to the fair import of their terms, to promote
justice and effect the objectives of the code.”).[1]  Assuming the rule of lenity applies, it is
“another extratextual factor for a court to consider if, and only if, a statute
is ambiguous.”  Cueller v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim. App. 2002)
(writing in dicta); see Ex parte Forward,
258 S.W.3d 151, 154 n.19 (Tex. Crim. App. 2008) (“Even if the ‘rule of lenity’
applies . . . , it provides the rule of decision only when both alternative
choices or definitions are more-or-less equally reasonable.”) (internal
quotations omitted).  Finding that the
statute is unambiguous, we do not reach the question of whether the rule of
lenity applies.
2.       Absurdity
Resulting from Application to Same-Sex Relationships
 
          Appellant
contends that the Texas Legislature did not intend for the term “dating
relationship” to encompass intimate, same-sex relationships because, at the
time of enactment, “deviate sexual intercourse with another individual of the
same sex” was a criminal offense.  Tex. Penal Code Ann. § 21.06 (Vernon 2003) (effective January 1, 1974), invalidated by Lawrence v.
Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484 (2003) (unconstitutional as
applied to private sexual conduct between consenting adults); see Tex
Fam. Code § 71.0021(b) (enacted September 1, 2001).  Appellant claims that interpreting the term
“dating relationship” to encompass same-sex relationships would have led to an
absurd result.  Specifically, appellant
asserts it would have meant that the Legislature provided special protection
for partners in same-sex relationships at the same time that same-sex
intercourse was illegal.
          The two statutes are not directly in
conflict.  See Dornbusch v. State, 156 S.W.3d 859, 870–71 (Tex. App.—Corpus
Christi 2005, pet. ref’d) (two separately defined offenses need not be
considered together in looking for absurd result where provisions are not in
direct conflict).  Although the Texas
Penal Code had criminalized sexual intercourse with the same sex when this statute
was enacted, the Legislature could have reasonably determined that people in
these relationships, whether legal at the time or not, needed special
protection from an abuser.  Furthermore,
as acknowledged by appellant’s counsel at oral argument, a “dating
relationship” between individuals of a romantic or intimate nature need not
include sexual intercourse.  The Texas
Penal Code has never prohibited a dating relationship between people of the
same sex; rather, it disallowed “deviate sexual intercourse.”  See
Tex. Penal Code Ann. § 21.06.  Because “dating
relationships” do not necessarily include sexual intercourse, there is no
conflict between the Legislature’s criminalization of “deviate sexual
intercourse” and its protection of persons in same-sex dating relationships
from domestic violence.
          In contrast to relationships such as
casual acquaintanceships or ordinary fraternizations, dating relationships pose
a greater danger of one party repeatedly abusing the other.  See
Tex. Fam. Code Ann. §
71.0021(c); Devon
M. Largio, Refining the Meaning and Application of "Dating
Relationship" Language in Domestic Violence Statutes, 60 Vand. L. Rev. 939, 950 (2007)
(describing dating violence as repeating cycle of tension-building, explosion,
and honeymoon phases).  It was not absurd for the Legislature to protect a
person involved in a same-sex dating relationship from that heightened danger.  We conclude that the statutory term “dating
relationship” plainly and unambiguously applies to both same- and opposite-sex
relationships.  See Mahaffey,
316 S.W.3d at 638.
          We
overrule appellant’s first issue.
Federal
Constitutionality
          In his second issue, appellant contends
that the statute elevating assault to a third-degree felony violates the Due
Process Clause of the Fourteenth Amendment of the United States Constitution.  See
U.S. Const. amend. XIV, § 1.[2]  Specifically, appellant presents a
facial attack to the statute, asserting that it is unconstitutionally vague.
          An appellate court, in reviewing the constitutionality of a
statute, begins with a rebuttable presumption that the statute is
constitutional.  Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).  A statute is unconstitutionally vague
if:  (1) the statute fails to provide
fair notice such that a person of ordinary intelligence would have a reasonable
opportunity to know conduct is prohibited; or (2) the statute fails to
establish determinate guidelines for law enforcement thereby permitting
arbitrary and discriminatory enforcement. 
See Grayned v. City of Rockford,
408 U.S. 104, 108–09,
92 S. Ct. 2294, 2298–99
(1972); State
v. Holcombe,
187 S.W.3d 496, 499 (Tex. Crim. App. 2006); Long v. State, 931 S.W.2d 285, 287 (Tex. Crim.
App. 1996).  A court views statutory
language challenged as impermissibly vague in accordance with common
understanding and practices.  Mays v. State, 318 S.W.3d 368, 389 n.77 (Tex. Crim.
App. 2010) (citing Ely v.
State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979)).
          A
facial vagueness challenge to the constitutionality of a statute that does not
implicate constitutionally protected speech will be sustained only if the
statute is impermissibly vague in all its applications.  Vill.
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95, 102 S. Ct. 1186, 1191 (1982); Holcombe, 187 S.W.3d at 499.  Before a court may reach the
question of whether a statute is impermissibly vague in all its applications,
an appellant must show that the statute was unconstitutional as applied to him.  Maloney
v. State, 294 S.W.3d 613, 629 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
          Appellant contends that the
statute is unconstitutionally vague in two ways.  First, appellant asserts that the statute is unconstitutionally
vague in that it fails to give fair notice that a same-sex relationship can
constitute a dating relationship.  This
contention, however, misapprehends the definition of vagueness.  A provision is vague if it has an uncertain
breadth of meaning.  See Black’s Law Dictionary 1689 (9th ed. 2009)
(“vagueness”).  Having already determined in appellant’s first issue that the statute
plainly and unambiguously applies to same-sex as well as opposite-sex
relationships, we determine the term “dating relationship” is not
unconstitutionally vague in its applicability to same-sex relationships.
          Second, appellant asserts that the statute is unconstitutionally
vague in that it is unclear what constitutes a “dating relationship,”
regardless of the sex of the participants. 
Although a “dating relationship” is defined by the statute as a
continuous relationship of a romantic or intimate nature, neither the term
“romantic” nor the term “intimate” is defined by statute.  See
Tex. Fam. Code Ann. §
71.0021(b).  The statute further provides
that the existence of a dating relationship is to be determined by considering
the relationship’s length, nature, and frequency and type of interactions.  Id.  
          While it may be possible that there are certain
relationships for which it would be uncertain whether they constitute a dating
relationship under the statute, appellant must first establish that the statute
was uncertain as applied to him.  See Maloney, 294 S.W.3d at 629.  In accordance with common understanding and
practice, appellant’s relationship with Crump is clearly covered by the
statute.  See Mays, 318 S.W.3d at 389 n.77.  Appellant and Crump cohabitated for
the length of their relationship, they shared the same bed, they frequently had
sex, and they were known by others to be a couple. 
          Additionally,
the assault is the conduct of which a defendant needs notice, not the status of
the actor’s relationship to the victim.  Childress v. State, 285 S.W.3d 544, 552
(Tex. App.—Waco
2009, pet. ref’d); see Scott v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim.
App. 2010).  It
is not a crime to be in a dating relationship, and appellant’s conduct would
have been criminal had he punched and kicked a stranger.  See id.  Similarly, law enforcement would have known
to arrest appellant even had Crump been a stranger to him.  See id.  Here, the fire marshal who saw the assault in
progress knew to intervene to help Crump even without knowing that appellant
and Crump had been dating.
          We conclude that the statute is not unconstitutionally
vague because it provides fair notice for an ordinary person to have a
reasonable opportunity to know that the conduct is prohibited, and because it
establishes determinate guidelines for law enforcement thereby avoiding
arbitrary or discriminatory enforcement. 
We hold that the statute does not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.  See
Rodriguez, 93 S.W.3d at 69; Long, 931 S.W.2d at 287.
          Appellant’s second issue is overruled.
Texas
Constitutionality
          In his third issue, appellant contends
that the statute elevating assault to a third-degree felony violates section
nineteen of article one of the Texas Constitution.  See
Tex. Const. art. I, § 19 (“No
citizen of this State shall be deprived of life, liberty, property, privileges
or immunities, or in any manner disfranchised, except by the due course of the
law.”).
          To
assert an issue on appeal, an appellant’s “brief must contain a clear and
concise argument for the contention made, with appropriate citations to
authorities . . . .”  Tex. R. App. P. 38.1(i).  When making “a novel argument for which there
is no authority directly on point . . . , [an] appellant must ground his
contention in analogous case law or provide the [appellate court] with the
relevant jurisprudential framework for evaluating his claim.”  Tong v.
State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000).  An appellant waives an issue on appeal if he
fails to adequately brief that issue by presenting supporting arguments and
authorities.  See Tex. R. App. P.
38.1(i); Cardenas v. State, 30 S.W.3d
384, 393 (Tex. Crim. App. 2000).
          Appellant notes that a state is
permitted to provide greater protection from its own government’s actions than
it is required to provide under the federal law.  See
Heitman v. State, 815 S.W.2d 681, 682–83 (Tex. Crim. App. 1991) (“Under our
system of federalism . . . states are free to reject federal holdings as long
as state action does not fall below the minimum standards provided by federal
constitutional protections.  Likewise, a
state is free as a matter of its own law to impose greater restrictions on
police activity than those the Supreme Court holds to be necessary upon federal
constitutional standards.”) (citations omitted).  Appellant, however, does not cite any authority
interpreting section nineteen to provide greater protection than does the Due
Process Clause of the Fourteenth Amendment. 
Moreover, appellant does not assert any reasons why the Texas
Constitution should be interpreted to provide greater protection.  Accordingly, appellant inadequately briefed
his third issue and thus waives that issue on appeal.  See
Tex. R. App. P. 38.1(i); Cardenas, 30 S.W.3d at 393.
          Appellant’s third issue is overruled.[3]
Effectiveness of
Assistance of Counsel
          In his fourth issue, appellant contends,
in the alternative, that he was ineffectively assisted by trial counsel if either
his second and third issues were waived by a failure to raise the challenge at
trial.
          A defendant can prevail on a claim of
ineffective assistance of counsel only if he proves by a preponderance of the
evidence: (1) that defense counsel’s performance was so deficient that his
assistance fell below an objective standard of reasonableness; and (2) that the
deficient performance caused prejudice, namely, a reasonable probability,
sufficient to undermine confidence in the outcome, that but for the deficiency,
the outcome would have been different.  Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999) (citing Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).  To raise ineffective assistance of counsel on
direct appeal based on trial counsel’s failure raise a challenge at trial, an appellant
must show that the trial court would have erred in overruling the challenge.  See Vaughn v. State, 931 S.W.2d 564, 566
(Tex. Crim. App. 1996); Alexander v.
State, 282 S.W.3d 701, 705 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d).
          We have disposed of appellant’s second
and third issues on grounds other than that his trial counsel failed raise the
issue at trial.  Hence, appellant would
not have prevailed on these issues even had his counsel raised the arguments at
trial.  Appellant’s federal
constitutionality attack failed on the merits. 
Appellant’s Texas constitutionality attack was waived for failure to
adequately brief.  Appellant, therefore,
has not shown how the trial court would have erred by denying the challenge.  We hold that appellant’s trial counsel was
not ineffective.
          Appellant’s fourth issue is overruled.
Conclusion
          We
affirm the judgment.
 
                                                                   
 
                                                                   Elsa
Alcala
                                                                   Justice
 
Panel consists of Justices Jennings, Alcala,
and Higley.
 
Publish.  Tex.
R. App. P. 47.2(b).




[1]           The Court of Criminal Appeals has never decided whether the rule of
lenity applies to Texas Penal Code.  The
court, however, did cast doubt on the rule of lenity’s applicability to the
Texas Code of Criminal Procedure.  Ex parte Forward, 258 S.W.3d 151, 154
n.19 (Tex. Crim. App. 2008).  The rule of
construction provided in the Texas Code of Criminal Procedure is more strongly
worded than is its counterpart in the Texas Penal Code.  Id.
(citing Tex. Code Crim. Proc. Ann.
art 1.26 (Vernon 2005) (“The provisions of this Code shall be liberally
construed . . . .”)).  The
Court of Criminal Appeals has stated, “Argueably this provision overrides the
‘rule of lenity’” with respect to the Texas Code of Criminal Procedure.  Id.


[2]           Appellant’s motion for new trial was sufficient to
preserve for appellate consideration his unconstitutional-vagueness facial
challenge.  See Gillenwaters v. State, 205 S.W.3d 534, 537–38 (Tex. Crim. App. 2006) (motion for
new trial sufficient to preserve unconstitutional-vagueness as-applied challenge).
 


[3]           Unlike appellant’s federal constitutional challenge to the
statute, appellant did not first present his challenge that the statute was
unconstitutional under the Texas Constitution to the trial court in his motion
for a new trial.  An appellant may not
raise for the first time on appeal a challenge to the constitutionality of a
statute. 
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)
(facial challenges); Garcia v. State,
887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (as applied challenges).  We also conclude that appellant failed to preserve
for appellate review his challenge concerning the Texas Constitution.  See
Tex. R. App. P. 33.1(a)(1); Swain v. State, 181 S.W.3d 359, 367–68 (Tex.
Crim. App. 2005).


