               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                          NO. PD–1250–12


                         MARK ALEXANDER FLEMING, Appellant

                                                  v.

                                     THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            DENTON COUNTY

             M EYERS, J., delivered the opinion of the Court, in which K EASLER,
H ERVEY, C OCHRAN, and A LCALA, JJ., joined. C OCHRAN, J., filed a concurring
opinion. A LCALA, J., filed a concurring opinion. K ELLER, P.J., filed a dissenting
opinion in which P RICE and J OHNSON, JJ., joined. W OMACK, J., concurred.

                                          OPINION


       Appellant, Mark Alexander Fleming, was charged with four counts of aggravated

sexual assault under Texas Penal Code Section 22.021(a)(1)(B)(iii), (2)(B).1 He filed a

motion to quash the indictment on the basis that the statute is unconstitutional for failing

to require the State to prove that he had a culpable mental state related to the victim’s age


       1
           Unless otherwise noted, all references to Sections refer to the Texas Penal Code.
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and for failing to recognize an affirmative defense based on the defendant’s reasonable

belief that the victim was 17 years of age or older. The trial court denied the motion.

Appellant entered a plea of “no contest,” filed an application for community supervision,

and invoked his right to have the jury determine punishment. On the second day of

testimony, one of the jurors informed the court that his son had dated the victim. In order

to avoid a mistrial, the State and Appellant entered into a plea agreement for a ten-year

probated sentence. Appellant appealed the trial court’s denial of his motion to quash.

The court of appeals overruled Appellant’s federal constitutional claims and affirmed the

trial court’s judgment. We remanded the case to the court of appeals to consider

Appellant’s state constitutional claims, and the court of appeals again affirmed the trial

court. Appellant filed a petition for discretionary review, which we granted to consider

whether Penal Code Section 22.021 is unconstitutional under the Due Process Clause of

the Fourteenth Amendment and the Due Course of Law provision of the Texas

Constitution because it fails to require the State to prove that the defendant had a culpable

mental state regarding the alleged victim’s age, and fails to recognize an affirmative

defense based on the defendant’s reasonable belief that the alleged victim was 17 years of

age or older. We will affirm the court of appeals.

                                          FACTS

       Appellant testified that in April of 2007 he received a text message from a girl,

K.M, who said that she had obtained his phone number from her friend. When Appellant
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asked her age, she replied that she was 22 years old. K.M. was actually 13 years old. The

two corresponded by text message and talked on the phone for a week or two and then

arranged to meet at the mall for a date. Both Appellant and K.M. testified that on their

first date they went to a movie and drag races at a race track, after which Appellant drove

K.M. home. Appellant stated that K.M. told him that her mother and step-father lived

with her because they had lost their home. After their second date to dinner and a movie,

Appellant asked K.M. if she wanted to spend the night with him at the hotel where he had

been staying. Appellant testified that K.M. said that she did want to go to his hotel but

that she was not ready for them to have sexual relations at that time. Appellant said that

he agreed and that they went to sleep upon arrival at the hotel. Appellant testified that

when he awoke early the next morning, K.M. was “messing with” him in a way that

indicated that she wanted to have sex. He asked her if she was sure, and she said that she

was. Appellant and K.M. continued dating and having sex from April to May of 2007.

Later that year, K.M.’s mom found a love letter that Appellant had written to K.M.

Appellant, who was 25 years old at the time, wrote in the letter, “I no you 4 years or 5

years younger then me but I love you.” When her mom confronted her about the letter,

K.M. initially denied the relationship. When K.M. admitted that she did have sex with

Appellant, her mom called the police. Appellant was cooperative during questioning by

the police and told the officer about the relationship. He told the officer that he did not

know that K.M. was under age when he dated her. At trial, Appellant testified that he
                                                                              Fleming–Page 4

believed that K.M. was 22 years of age because both K.M. and her friend had told him

that she was 22 years old, and because K.M. had told him that she was a student at the

University of North Texas majoring in criminal justice. He also testified that he had seen

on her MySpace page, which was entered into evidence by the defense, that she was 20

years old and was a student at UNT. The MySpace page entered into evidence by the

defense also contained photos of K.M. that were taken around the time she was dating

Appellant. K.M. denied having told Appellant that she was 22 years old and testified that

someone else must have changed her MySpace page. She said she did not know if

Appellant knew that she was under age when they dated. The State presented evidence

that Appellant had previously dated a friend of K.M.’s mom, who sometimes babysat

K.M. when she was younger. The State said that K.M. would have been 11 years old

when Appellant first met her at her mom’s house. K.M. said that Appellant had been to

her mother’s house in the past but she did not know if he remembered meeting her then.2

       Appellant agreed to a ten-year probated sentence and retained the right to appeal

the trial court’s denial of his motion to quash. He appealed, arguing that Penal Code

Section 22.021 is unconstitutional due to its failure to require proof that he had

knowledge that his victim was younger than 17 years of age and for not recognizing an

affirmative defense based on the defendant’s reasonable belief that the victim was 17

years of age or older.

       2
       The house Appellant had previously visited was not the same house where he dropped
off K.M. after their dates.
                                                                               Fleming–Page 5

                                  COURT OF APPEALS

       On remand from this Court, the court of appeals held that Section 22.021 does not

offend notions of Due Process or Due Course of Law. The court stated that the texts of

both the Due Course of Law provision and the Due Process Clause are virtually identical

and that the Due Course of Law provision provides the same protections as the Due

Process Clause. The court reasoned that the strict-liability aspect of statutory-rape laws is

widely known and is a recognized exception to the general requirement of mens rea in

criminal statutes. The court of appeals rejected Appellant’s reliance on United States v.

X-Citement Video, 513 U.S. 64, 73 (1994), and said that the reasoning from X-Citement

does not apply here because Section 22.021 involves personal contact with the underage

victim and the ability to ascertain true age, while the possession of visual depictions of

minors does not. The court of appeals determined that there is not a fundamental right to

a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, as

long as the statute is reasonably related to a legitimate state objective, it does not impinge

on a substantive due-process right. The court of appeals concluded that strict liability

regarding the age of the minor furthers the legitimate government interest in protecting

children from sexual abuse by placing the risk of mistake on the adult actor. The court of

appeals overruled Appellant’s points of error and affirmed the judgment of the trial court.

                           ARGUMENTS OF THE PARTIES

       Appellant presents a facial challenge to the statute’s lack of a mens rea as to the
                                                                              Fleming–Page 6

victim’s age. He raises an as-applied challenge to the court’s failure to allow him to

present a mistake-of-fact defense. Specifically, he argues that he had an objectively and

subjectively reasonable belief that the victim in this case was over the age of 17.

Appellant states that under early English and American Common Law, the knowing act of

engaging in consensual sex with another when not sanctioned by the legal bonds of

marriage was a legal and moral wrong, and that legal wrong sufficed as a substitute for

mens rea in the statutory rape context. Appellant argues that, because such acts are no

longer legally wrong, there is nothing to substitute for a mens rea element in Section

22.021 and it is unconstitutional to enforce the statute without the mens rea element that

is essential in every felony charge. Appellant claims that in Lawrence v. Texas, 539 U.S.

558 (2003), the United States Supreme Court extended the Due Process Clause’s

protection of liberty to the intimate choices of unmarried persons. Appellant cites X-

Citement, stating that when a statute is completely bereft of a scienter requirement as to

the age of the victim, and the age of the victim is the crucial element separating legal

innocence from wrongful conduct, the statute raises serious constitutional doubts.

Appellant argues that, because the physical act identified in Section 22.021(a)(1)(B)(iii) is

entitled to constitutional protection, the complete absence of a mens rea requirement as to

the age of the victim renders the statute constitutionally void. Appellant states that the

framers of the Texas Constitution would have considered an ignorance-of-fact defense as

a fundamental right so as to not punish those who, through no fault of their own, have
                                                                              Fleming–Page 7

been misled. Finally, Appellant argues that it is unfair for him to be considered a “sexual

predator” when no evidence exists of any intent to do a legal or moral wrong and no

evidence exists to indicate that he is a threat to the community.

       The State argues that the court of appeals properly concluded that Appellant’s

fundamental rights were not implicated and that Section 22.021 serves a legitimate state

purpose. The State says that the cases cited by Appellant do not support his argument that

Section 22.021 is unconstitutional. For example, the State argues that the reasoning from

X-Citement Video does not apply here because, unlike a defendant who does not know the

age of a person depicted in a video, Appellant spent a significant amount of time with the

victim and had ample time to ascertain her age. The State says that Lawrence v. Texas

supports the constitutionality of Section 22.021 because the Court in Lawrence

emphasized that it was recognizing the right of adults to engage in consensual conduct.

The State argues that the Due Course of Law Clause and the Due Process Clause afford

the same protection and that neither the history nor the application of the Due Course of

Law provision supports a conclusion that Section 22.021 violates the Texas Constitution.

The State notes that, although some states allow a mistake-of-age defense, the majority

rule is that excluding knowledge of the victim’s age as an element of the statutory rape

offense does not violate Due Process. Finally, the State argues that the legislature has an

interest in protecting the safety of children and that only the legislature should make

changes to a statute that serves to protect children from sexual abuse.
                                                                                      Fleming–Page 8

                                              CASE LAW

         The mistake-of-age defense was raised and rejected in the 1876 English case of

Regina v. Prince. 13 Cox, Criminal Cases 138 (Eng. Crim. App. 1876). In Prince, the

defendant was charged with unlawfully taking a girl under the age of 16 out of the

possession of her father against his will. The defendant claimed that he acted on the

reasonable belief that the girl was 18 years of age. The court held that it was no defense

that he thought he was committing a different kind of wrong from that which he was, in

fact, committing, it being wrong to remove a daughter, even one over the age of 16, from

her father’s household. Id. at 141-42. Citing previous cases, the court stated that “any

man who dealt with an unmarried female did so at his own peril, and if she turned out to

be under sixteen years old he was liable under this statute.” Id. at 139. Although the

issue in Prince was mistake of age as to abduction, early American courts applied Prince

to statutory rape as well. The reasoning from Prince has been used to justify denying the

mistake-of-age defense and imposing strict liability against those accused of statutory

rape.3

         In Morissette v. United States, 342 U.S. 246 (1952), the Supreme Court discussed



         3
             See, e.g., Brown v. State, 74 A. 836, 841 (Del. 1909) (finding that statements of age
made by the statutory rape victim and the defendant’s reasonable belief about her age were
“irrelevant and immaterial”); State v. Basket, 19 S.W. 1097 (Mo. 1892) (refusing a reasonable
mistake-of-age defense for statutory rape of a twelve-year-old girl); Lawrence v. Commonwealth,
71 Va. 845, 854-55 (1878) (finding that the lower court did not err by refusing to give jury
instructions that the defendant could not be found guilty of statutory rape based on a reasonable
mistake-of-age defense).
                                                                                 Fleming–Page 9

strict liability offenses and noted that, while there must usually be a “vicious will” to

constitute a crime, there are exceptions to this rule, including rape cases in which age is

the determinative factor, despite the defendant’s reasonable belief that the victim was

over the age of consent. For strict liability crimes, there is no “guilty mind” requirement,

and the actor does not have to possess the mens rea to commit any crime. In such strict-

liability offenses, the actor’s state of mind is irrelevant, and he is guilty of the crime at the

moment he commits the prohibited act. Most strict liability statutes are associated with

the protection of public health, safety, or welfare, such as those involving air and water

pollution, sale of adulterated food, and traffic and motor-vehicle laws. Id. at 254-55.

Statutory rape, however, is distinguishable in that the act of sexual intercourse is not a

crime except in certain circumstances, such as when the other person has not consented to

the act or when the other person is deemed unable to consent due to his or her age.

                                        DISCUSSION

Mens rea as to the age of the victim

       While it is indeed widely known that “16 will get you 20,” and precocious young

girls have commonly been referred to as “jail bait,” such colloquialisms address only the

understanding that even consensual sex with someone underage is a violation. These

phrases indicate knowledge of the sexual partner’s young age as opposed to an

understanding that knowledge of the age is unnecessary. Texas Penal Code does not

specify that mens rea as to the age of the victim is unnecessary, however, under federal
                                                                                  Fleming–Page 10

law, “the Government need not prove that the defendant knew that the other person

engaging in the sexual act had not attained the age of 12 years.” See 18 U.S.C. § 2241(d).

See also 18 U.S.C. § 2243(d) (“In a prosecution for sexual abuse of a minor between the

ages of 12 and 16, the Government need not prove that the defendant knew the age of the

other person engaging in the sexual act”).

       It is clear that the Texas legislature intends for age to be an aggravating element in

certain offenses and does not intend for the State to be required to prove that the

defendant knew the age of the victim. For example, the sexual assault statutes delineate

the severity of the offense based in part on the age of the victim. Specifically, Penal Code

Section 22.011(a)(2) covers sexual assault of a child under the age of 17. However, when

the victim is younger than 14 years of age, the offense is aggravated sexual assault under

Penal Code Section 22.021. Similarly, murder under Penal Code Section 19.02 may

increase to capital murder under Section 19.03 if the victim is under 10 years of age.

There is no mens rea as to age listed in either the sexual assault or murder statutes and

there is no fundamental right to a mens rea element regarding the age of the victim in

these contexts.4 Because this statute serves the legitimate state objective of protecting

children, we will not read a mens rea element into the statute and do not believe that



       4
         We note that Penal Code Section 19.03(a)(1) requires the State to prove that the
defendant knew that the victim was a peace officer or fireman in order for the offense to increase
from murder to capital murder. This indicates to us that when the legislature wants to require the
State to prove that the offender knew the status of the victim, such a requirement is clearly stated
in the statute.
                                                                              Fleming–Page 11

failure to require mens rea as to the victim’s age violates the federal or state constitution.

The statutory prohibition of an adult having sex with a person who is under the age of

consent serves to protect young people from being coerced by the power of an older, more

mature person. The fact that the statute does not require the State to prove mens rea as to

the victim’s age places the burden on the adult to ascertain the age of a potential sexual

partner and to avoid sexual encounters with those who are determined to be too young to

consent to such encounters. If the adult chooses not to ascertain the age of a sexual

partner, then the adult assumes the risk that he or she may be held liable for the conduct if

it turns out that the sexual partner is under age.

Mistake-of-fact defense

       While both the sexual assault and the murder statutes specify a more severe

punishment based on the age of the victim, neither offense contains a provision that

allows for a mistake-of-fact defense as to the age of the victim. Under Penal Code

Section 8.02(a), “It is a defense to prosecution that the actor through mistake formed a

reasonable belief about a matter of fact if his mistaken belief negated the kind of

culpability required for the commission of the offense.” Because Section 22.021 requires

no culpability as to the age of the victim, there is nothing for the defendant’s mistaken

belief to negate, and his mistake cannot be a defense to prosecution.

       Appellant asks for an affirmative defense so that he may claim that even though

the allegations in the indictment are true, he should not be convicted due to his assertion
                                                                            Fleming–Page 12

that he did not know that K.M. was 13 years of age. The legislature’s intent of protecting

children from sexual assault is clear, and it outweighs any claim of the right to present a

mistake-of-age defense. When a defendant voluntarily engages in sexual activity with

someone who may be within a protected age group, he should know that there may be

criminal consequences and there will be no excuse for such actions. When it comes to

protecting those who are unable, due to their tender age, to consent to sexual activity, the

legislature simply does not allow any variance.

       It would be unconscionable for us to allow a 25-year-old man who was having sex

with a 13-year-old child to claim that his actions were excused because he reasonably

believed that he was having sex with an adult. Such a defense is precluded by the

overriding interest in protecting children.

                                       CONCLUSION

       Texas Penal Code Section 22.021 is not unconstitutional under the Due Process

Clause of the Fourteenth Amendment or the Due Course of Law provision of the Texas

Constitution for failing to require the State to prove that the defendant had a culpable

mental state regarding the victim’s age or for failure to recognize an affirmative defense

based on the defendant’s belief that the victim was 17 years of age or older. The decision

of the court of appeals is affirmed.




Delivered: June 18, 2014
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