                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00396-CR
                              NO. 02-12-00397-CR
                              NO. 02-12-00398-CR
                              NO. 02-12-00399-CR
                              NO. 02-12-00400-CR

BRITTNI COLLEPS                                                      APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      In two issues, Appellant Brittni Colleps appeals her convictions for

improper relationship between educator and student, arguing that penal code

section 21.12 is unconstitutional and that the State improperly shielded all of the

alleged complainants from prosecution for improper visual recording. We affirm.
      1
       See Tex. R. App. P. 47.4.
                   II. Factual and Procedural Background

      At the end of April and beginning of May in 2011, Colleps, a first-year

teacher, engaged in various sexual encounters with the complainants—Aaron,

Mark, John, Jordan, and Richard2—who were high school seniors in her English

class.3

      During one of the group sex episodes, Jordan used Aaron’s cell phone to

make a recording; the trial court admitted the recording and allowed it to be

published to the jury. The State agreed to give the complainants transactional

immunity, which the trial court approved. The State did not offer to plea bargain

with Colleps.

      A jury convicted Colleps of multiple counts of improper relationship

between educator and student as follows: four counts as to Aaron, three counts

as to Mark, four counts as to John, four counts as to Jordan, and one count as to

Richard. The jury assessed Colleps’s punishment at five years’ confinement for

each count in each case, and the trial court set each sentence in each count and

case to run concurrently. These appeals followed.




      2
       The students were identified by these pseudonyms at trial. At the time,
Mark, John, Jordan, and Richard were eighteen years old and Aaron was
nineteen years old.
      3
      Because Colleps does not challenge the sufficiency of the evidence to
support her convictions, we will not recount the details of the sexual encounters.

                                        2
                          III. Penal Code Section 21.12

      In her first issue, Colleps concedes the facial constitutionality of penal code

section 21.12 but argues that the statute is unconstitutional as applied to her

because it criminalizes consensual adult behavior without regard to the age of

the alleged victims and that her due process rights were violated when the State

selectively and vindictively prosecuted her for engaging in “multiple sex acts with

five willing adult male students.”

A. Standard of Review

      The court of criminal appeals has stated,

      Whenever we are confronted with an attack upon the
      constitutionality of a statute, we presume that the statute is valid and
      that the Legislature has not acted unreasonably or arbitrarily. The
      burden rests upon the individual who challenges the statute to
      establish its unconstitutionality. In the absence of contrary evidence,
      we will presume that the legislature acted in a constitutionally sound
      fashion.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (citations omitted).

“Because a statute may be valid as applied to one set of facts and invalid as

applied to a different set of facts, a litigant must show that, in its operation, the

challenged statute was unconstitutionally applied to him.” State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

B. Penal Code Section 21.12

      Penal code section 21.12, “Improper Relationship Between Educator and

Student,” prohibits a secondary school employee from engaging in sexual

conduct, sexual intercourse, or deviate sexual intercourse with students enrolled

                                         3
at the school where she works. Tex. Penal Code Ann. § 21.12(a)(1) (West 2011

& Supp. 2013); Ex parte Morales, 212 S.W.3d 483, 486 (Tex. App.—Austin 2006,

pet. ref’d). In Morales, a school employee who had engaged in sexual conduct

with one of his school’s seventeen-year-old students argued that section 21.12

violated a constitutionally cognizable fundamental right to engage in adult

consensual sexual activity—a right that he argued was a logical extension of

Lawrence v. Texas, 539 U.S. 558, 567, 123 S. Ct. 2472, 2478 (2003). Morales,

212 S.W.3d at 487, 490–91, 500. However, the Austin court concluded that

Lawrence’s “right to privacy,” which protects personal decisions related to

marriage, procreation, contraception, family relationships, child-rearing, and

education, has not been extended to sexual conduct or intimate relationships

generally and is not a fundamental right to which strict scrutiny applies. Id. at

491–94 (citing Lawrence, 539 U.S. at 574, 578, 123 S. Ct. at 2481–82, 2484, as

invalidating a Texas statute criminalizing private consensual homosexual conduct

under the rational basis test).   The court concluded that section 21.12 was

rationally related to two legitimate state interests—preventing sexual exploitation

of Texas schoolchildren and preserving an educational environment conducive to

learning. Id. at 494, 496–97.

      The court reached this conclusion first by reasoning that section 21.12 was

narrowly addressed to sexual conduct by one specific class of persons—school

employees—with another specific class—students, further limited to those

enrolled at the same school where the employee works. Id. at 494. It observed

                                        4
that in Lawrence, the Supreme Court specifically stated that the liberty interest in

private adult sexual conduct in that case did not involve minors or “persons who

might be injured or coerced or who are situated in relationships where consent

might not be easily refused.” Id. (citing Lawrence, 539 U.S. at 578, 123 S. Ct. at

2484). The court reasoned that because school employees “are given unique

access to students, and are thereby vested with great trust and confidence by the

school, parents, and public,” the legislature had a legitimate interest in seeking to

preserve or strengthen that trust by unequivocally prohibiting school employees

from misusing their access to students as a conduit for sex. Id. at 496.

      Further, in reviewing the state constitution’s charge to the legislature to

establish and provide for public-school support and maintenance, the

legislature’s compulsory school-attendance requirement and its decree that

school campuses will maintain a safe and disciplined environment conducive to

learning, and the distractions and conflicts of interest inherent in sexual

relationships between school employees and students, the court concluded that

the legislature could have rationally determined that sexual relationships between

students and school employees would undermine the school’s learning

environment. Id. at 496–98 (citing Tex. Const. art. VII, § 1, and Tex. Educ. Code

Ann. § 4.001 (West 2006)).




                                         5
C. Analysis

      Colleps contends that section 21.12 “criminalizes adult consensual

behavior without regard for the age or sexual maturity of the alleged victims.”

She attempts to distinguish Morales, arguing that here

      there are five alleged victims, all of them consenting adults aged
      eighteen and older at the time of the offenses, four of whom
      participated in consensual group sex with [her], four of whom
      conspired to record or conceal the evidence of the recording of one
      of the group trysts, all of whom were graduating from high school
      within weeks of the offenses, and none of whom wanted [her]
      prosecuted.

Colleps further argues that while the statute has a rational basis when

legislatively drawn to protect students and the learning environment, the

“personal moral revulsion” of the prosecutor here turned the prosecution into

persecution because the State refused to offer her a plea bargain. She also

claims that the law has a fundamental flaw in that conduct is rendered illegal

based solely on school-employment status, pointing out that her conduct would

have been legal if the students had already graduated, if the students had been

from a different school district, or if she had been fired before engaging in sexual

relations with the students.

      In making these arguments, Colleps ignores the reasoning underlying the

statute as set out in Morales—it is a school employee’s status that provides

access to students at the school and the ability to sexually manipulate those

students and disrupt their educational environment.       The record reflects that

Colleps used her position as an educator to seduce five students in violation of

                                         6
section 21.12—in addition to the five complainants’ testimonies, the school

district’s associate superintendent of administrative services testified that

teachers were not permitted to have any kind of sexual contact or any sexual

relationship with a student, irrespective of the student’s age, and that there were

strict restrictions on text messaging between teachers and students. He stated

that the statute and the school’s policies were in place to protect students

because teachers had more power than students, they were in a position of

authority, and “[s]tudents look up to teachers . . . they look to us for guidance,

and any kind of violation of that is -- it’s a situation where it puts the students in a

position where they could be harmed.” The record also contains text messages

between Colleps and Aaron regarding her final exam and how she would do

anything she could for him and the sexual text messages that they exchanged

during her class. Colleps also sent text messages to Mark, who gave Aaron’s

phone number to Colleps.

      Further, as pointed out by the State, “A prosecutor’s disgust with a

defendant’s criminal behavior does not render a statute unconstitutional.”

Selective or vindictive prosecution is not a defense on the merits to the criminal

charge; rather, it is an independent assertion that the prosecutor has brought the

charge for reasons that the Constitution prohibits.         Ex parte Quintana, 346

S.W.3d 681, 685 (Tex. App.—El Paso 2009, pet. ref’d).              To the extent that

Colleps raised and preserved a selective or vindictive prosecution claim, she had

the burden to prove purposeful discrimination and to defeat the presumption that

                                           7
the prosecution was made in a good-faith and nondiscriminatory fashion. See id.

To establish such a prima facie case, Colleps had to show that the State singled

her out for prosecution even though it had not proceeded against others similarly

situated to her based on the type of conduct for which she was charged and that

the government’s discriminatory selection was invidious, i.e., based on

impermissible considerations such as race, religion, the desire to prevent her

exercise of constitutional rights, or some arbitrary classification. See id. Only a

rational basis for the discriminatory treatment is required unless the government

discriminates against a suspect class or impinges on a fundamental right. Id.

The likelihood that the individual prosecuted will receive the media’s attention is a

proper basis for selective prosecution because of the potential deterrent effect on

others in society. Id.

      Nothing in the record shows that Colleps—a white, married female with

three children—was discriminated on any basis other than that set out by the

statute (educator), which, as discussed above, has been found rationally related

to the legitimate state interest of protecting students from school employees who

might otherwise use their positions to sexually prey on them. As set out above,

Colleps had no fundamental right to sexual intercourse with students at her

school, and nothing in the record shows similar cases under section 21.12 in




                                         8
which the prosecutor elected to plea bargain instead of proceeding to trial. 4 We

overrule Colleps’s first issue.

                            IV. Transactional Immunity

      In her second issue, Colleps complains that the State improperly shielded

the complainants from prosecution for the felony offense of improper visual

recording by offering them transactional immunity and obtaining appointed

counsel for them when it learned that she would offer into evidence text

messages showing that two of the students had conspired to record one of their

sexual episodes.5 An immunity agreement between a witness and the State

generally does not involve the defendant’s rights; rather, the defendant has the

right to confront the witness at trial as to the immunity agreement and its

conditions. Goff v. State, 931 S.W.2d 537, 549 (Tex. Crim. App. 1996), cert.

denied, 520 U.S. 1171 (1997).

      Further, while a defendant has grounds to complain about the treatment of

a witness’s immunity when the government uses its immunity privilege to unfairly

      4
        A defendant has no absolute right to enter into a plea bargain. Gaal v.
State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (quoting Morano v. State,
572 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978)); see also Morano, 572
S.W.2d at 551 (“It is no more reasonable to argue that the State must enter into a
plea bargain with every defendant than to argue that every defendant must plead
guilty and enter into a plea bargain.”).
      5
        Although Colleps contends that the “willingness to immunize their
witnesses only after the extent of their criminal acts was revealed is indicative of
the degree of vindictiveness and disparate treatment meted out to [her],” we have
already addressed her selective- or vindictive-prosecution argument in our
resolution of her first issue.

                                         9
skew the facts presented to the jury and breach the defendant’s right to due

process of law, see United States v. Bustamante, 45 F.3d 933, 943 (5th Cir.),

cert. denied, 516 U.S. 973 (1995), there is no indication that immunizing the

complainants here unfairly skewed any of the facts. Even if the recording had

not been admitted into evidence, there was ample evidence for the jury to find

beyond a reasonable doubt that Colleps had engaged in sexual activities with

five students, regardless of whether she gave permission to record, or was aware

of the recording of, one of their instances of group sex.6 We overrule Colleps’s

second issue.

                                V. Conclusion

      Having overruled both of Colleps’s issues, we affirm the trial court’s

judgments.

                                                 PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 3, 2014




      6
        Some of the complainants testified that they thought Colleps knew she
was being recorded although they agreed that her back was turned away from
the cell phone at the time.

                                      10
