                                  NO. 12-13-00269-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DAVID SCHLITTLER,                                §      APPEAL FROM THE 3RD
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANDERSON COUNTY, TEXAS

                                            OPINION
       David Schlittler appeals his conviction for unlawfully contacting a family member of the
child he had been convicted of sexually assaulting. A jury found him guilty and sentenced him
to eight years of imprisonment. In two issues, he contends the statute under which he was
convicted is unconstitutional. We affirm.


                                          BACKGROUND
       In April 2008, Appellant began serving a twenty year sentence for aggravated sexual
assault of a child, B.M., his stepdaughter. Before that judgment was signed, Appellant’s ex-wife
had obtained an order permanently enjoining Appellant from having any contact with his son,
and B.M.’s half brother, B.S., except for certain periods of possession.
       Bonita Ralston met Appellant in 2003, eventually becoming like a mother to him.
Ralston, who believed Appellant was innocent, remained in contact with him after his
incarceration. In July 2008, she began communicating with B.S. through social media. In this
manner, she relayed messages to B.S. from Appellant, urging B.S. to convince his half sister to
tell authorities that she had lied about having been assaulted.       Appellant was indicted for
violation of Texas Penal Code Section 38.111, which makes it an offense for persons convicted
of certain offenses, including aggravated sexual assault of a child, while confined in a
correctional facility, to contact a victim of the offense or a member of the victim’s family. The
jury found Appellant guilty of improper contact in violation of the Texas Penal Code and
sentenced him to eight years of imprisonment. This appeal ensued.


                                    CONSTITUTIONALITY OF SECTION 38.111
       Appellant contends that Texas Penal Code Section 38.111, as applied to him, violates the
Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.     In 2007, a court having jurisdiction over the parent-child relationship
between Appellant and B.S. rendered an order permanently enjoining Appellant from having any
contact with B.S., including contact through Bonita Ralston, except during periods of possession.
While Appellant is incarcerated, there are no periods of possession. Accordingly, the 2007 order
limited Appellant’s rights to the care, custody, and management of B.S. As the State argues, the
statute could not have violated rights that had been previously enjoined.
Standard of Review
       The constitutionality of a criminal statute is a question of law, which we review de novo.
Render v. State, 316 S.W.3d 846, 856 (Tex. App.–Dallas 2010, pet. ref’d). A litigant raising an
“as applied” challenge concedes the general constitutionality of the statute, and must show only
that the statute, though generally constitutional, is unconstitutional because of the way in which
it was applied to him in a particular case. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.
Crim. App. 2011) (orig. proceeding). We will uphold a statute if we determine a reasonable
construction that will render it constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.
App. [Panel Op.] 1979).
Applicable Law
       Texas Penal Code Section 38.111 provides as follows:


                 A person commits an offense if the person, while confined in a correctional facility after
       being charged with or convicted of an offense listed in Article 62.001(5), Code of Criminal
       Procedure, contacts by letter, telephone, or any other means, either directly or through a third
       party, a victim of the offense or a member of the victim’s family, if:
                 (1) the victim was younger than 17 years of age at the time of the commission of the
                     offense for which the person is confined; and
                 (2) the director of the correctional facility has not, before the person makes contact with
                     the victim:
                     (A) received written and dated consent to the contact from:
                          (i)      a parent of the victim;
                          (ii)     a legal guardian of the victim;



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                       (iii)   the victim, if the victim is 17 years of age or older at the time of giving
                               the consent; or
                       (iv)    a member of the victim’s family who is 17 years of age or older; and
                   (B) provided the person with a copy of the consent.


TEX. PENAL CODE ANN. § 38.111(a) (West 2011).
Due Process
       In his first issue, Appellant contends that Texas Penal Code Section 38.111, as applied to
him, violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. He argues that application of the statute to him impinges upon his fundamental
interest in the care, custody, and management of his child, B.S. Specifically, he argues that the
statute’s prohibition against contact with “a member of the victim’s family” is overly broad and
the state has no compelling interest justifying interference with his parental rights.
       Due process is the vehicle used to arrive at fairness, thereby protecting our fundamental
rights. Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled in part on other
grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). In a substantive due
process analysis, we determine whether the claimant had a protected liberty interest, and if the
government deprived him of that interest capriciously and arbitrarily. See Laney v. State, 223
S.W.3d 656, 667 (Tex. App.–Tyler 2007, no pet.). If the right involved is a fundamental right,
the state must show a compelling interest to curtail it and must do so as narrowly as possible.
See Reno v. Flores, 507 U.S. 292, 301-02, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1 (1993).
       We agree that, ordinarily, parents have a fundamental interest in the care, custody, and
management of their children. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060,
147 L. Ed. 2d 49 (2000). The natural right that exists between parents and their children is one
of constitutional dimensions. In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). However, the
rights of natural parents are not absolute; protection of the child is paramount. Id. at 195. The
parents’ rights can be limited or even terminated. See TEX. FAM. CODE ANN. § 161.001 (West
2014). It seems indisputable that protecting children is a legitimate government interest. See
Fleming v. State, No. PD-1250-12, 2014 Tex. Crim. App. LEXIS 879, at *14 (Tex. Crim. App.
June 18, 2014) (sexual assault statutes protect children from sexual abuse); Henderson v. State,
962 S.W.2d 544, 562 (Tex. Crim. App. 1997) (state has compelling interest in protecting the
well-being of its children).




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       The statute, as applied, did not deprive Appellant of a fundamental interest capriciously
or arbitrarily. Section 38.111, which is triggered by Appellant’s criminal behavior, protects
B.M. and her family members from Appellant. The State has a compelling interest in protecting
victims of criminal activity, and their families, even if they are all members of the same family.
See Henderson, 962 S.W.2d at 562. Moreover, Appellant was attempting to communicate with
B.M. through B.S., a situation the statute helps guard against. Further, the statute acknowledges
that, in some instances, the parent or legal guardian of the victim may deem it appropriate for the
person who committed the offense to contact the victim or a member of the victim’s family.
TEX. PENAL CODE ANN. § 38.111(a)(2). This provision works to narrow the statute. Section
38.111, as applied to Appellant, does not violate the Due Process Clause of the Fourteenth
Amendment. We overrule Appellant’s first issue.
Equal Protection
       In his second issue, Appellant asserts that Texas Penal Code Section 38.111, as applied to
him, violates the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. He argues that the penal code creates a class of persons confined in a correctional
facility after being charged with or convicted of a certain sexual or sexually motivated offense.
He further argues that the governmental interest here, protecting sexual assault victims from
further victimization, is unrelated to suppression of his parental rights.
       No state may deny to any person within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, § 1. While a state may classify its citizens for various purposes, all
persons similarly situated should be treated alike. Downs v. State, 244 S.W.3d 511, 518 (Tex.
App.–Fort Worth 2007, pet. ref’d); Smith v. State, 444 S.W.2d 941, 943 (Tex. Civ. App.–San
Antonio 1969, writ ref’d n.r.e.). In cases involving fundamental rights, the burden is on the state
to show a substantial justification to support the differentiation. Smith, 444 S.W.2d at 946.
Statutes that interfere with fundamental rights are evaluated under strict scrutiny. Kiss v. State,
316 S.W.3d 665, 668 (Tex. App.–Dallas 2009, pet. ref’d).
       Appellant notes that Section 38.111 does not apply to violent offenses that are not
sexually motivated and so murderers, kidnappers, and armed robbers are excluded from the class.
To the extent Appellant contends an equal protection violation stems from the fact that Section
38.111 applies only to some, but not all, of the individuals confined in a correctional facility, we
disagree. The class created is defined by the particular crime committed, not the broader factor



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of being a convict who currently resides in a correctional facility. See TEX. PENAL CODE ANN.
§ 38.111. The crimes carved out by Section 38.111 all involve physical and emotional harm of a
particularly sensitive nature. The need to protect victims of these particular crimes, as well as
their families, justifies the classification. See Henderson, 962 S.W.2d at 562; see also TEX.
FAM. CODE ANN. § 81.001 (West 2014) (authorizing protective orders against those who have
committed or are likely to commit family violence). As to the class members, Section 38.111
has equal application. See Ex parte Hobbs, 157 S.W.2d 397, 398-99 (Tex. Crim. App. 1941).
Thus, the statute provides equal treatment for all class members’ fundamental rights of parenting.
See Downs, 244 S.W.3d at 518. To apply the statute to some members of the class but not to
those class members whose parental rights might be affected, like Appellant, would result in a
failure to protect their victims from further victimization, thereby reducing the effectiveness of
the statute. Moreover, such an application could lead to subjective and arbitrary determinations
of which convicted sex offenders are exempt and would create an equal protection violation.
Penal Code Section 38.111, as applied to Appellant, does not violate the Equal Protection Clause
of the Fourteenth Amendment. See Ely, 582 S.W.2d at 419. We overrule Appellant’s second
issue.


                                                    DISPOSITION
         Texas Penal Code Section 38.111, as applied to Appellant, does not violate the Due
Process or Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution. Accordingly, we affirm the trial court’s judgment.

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered October 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          OCTOBER 30, 2014


                                          NO. 12-13-00269-CR


                                        DAVID SCHLITTLER,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 30390)


                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.

                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.

                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
