             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-14-00460-CR
      ___________________________

   RUSSELL LAMAR ESTES, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 396th District Court
         Tarrant County, Texas
       Trial Court No. 1388628R


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
   Opinion on Remand by Justice Gabriel
                             OPINION ON REMAND

      The court of criminal appeals has remanded this appeal for our specific

consideration of (1) whether strict scrutiny applies to appellant Russell Lamar Estes’s

claim that the punishment enhancement for sexual-assault convictions involving

bigamy violated equal protection as applied to him and (2) whether the sexual-assault

punishment enhancement as applied to him violated his substantive due-process

rights. See Estes v. State, 546 S.W.3d 691, 696–97, 706 & n.114 (Tex. Crim. App. 2018)

(Estes II). We conclude that the answer to both questions is no.

                                 I. BACKGROUND

                       A. THE OFFENSES AND CONVICTIONS

      Over the course of one year, Estes repeatedly sexually assaulted his son’s

girlfriend Katie,1 who was younger than seventeen at the time.2 Katie eventually told

her family about the assaults, leading to a police investigation. Estes was indicted with

twenty-three sexual offenses, but was tried only for five counts of sexual assault and

two counts of indecency with a child by contact.           See Tex. Penal Code Ann.

§§ 21.11(a)(1), 22.011(a) (West Supp. 2018). At trial, the State admitted evidence

showing that Estes was married at the time he sexually assaulted Katie. Katie’s

mother testified that she allowed Katie to spend so much time at her boyfriend’s

      This is an alias. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); 2d Tex. App. (Fort
      1

Worth) Loc. R. 7.
      2
       Estes does not challenge the sufficiency of the evidence to support his
convictions.


                                           2
house, including sleeping over, because she knew and trusted Estes, she knew Estes’s

wife would also be present in the home, and Estes assured her that he would

supervise his son and Katie. Katie’s mother further stated that she believed Estes

shared her moral code.

      A jury found Estes guilty of each of the seven counts. In a special issue

regarding the sexual-assault counts, the jury affirmatively found that Katie was a

person whom Estes “was prohibited from marrying or purporting to marry or with

whom [he] was prohibited from living under the appearance of being married as

defined by the offense of bigamy.”3 This affirmative finding enhanced the available

punishment range from that of a second-degree felony—two to twenty years’

confinement—to that of a first-degree felony—five to ninety-nine years’ or life

confinement.   See id. § 22.011(f); see also id. §§ 12.32–.33 (West 2011).      After a

punishment hearing, the jury assessed his sentences at twelve years’ confinement for

each sexual-assault conviction and at ten years’ confinement for each indecency

conviction. The trial court imposed concurrent, twelve-year sentences for the sexual-

assault convictions and, as recommended by the jury, suspended imposition of the

confinement terms assessed for the indecency convictions and placed Estes on

community supervision for ten years.




      3
       The court’s special charge on this issue included a bigamy definition.


                                          3
                                   B. THE APPEALS

      Estes appealed and, as relevant here, argued that the punishment enhancement

found in section 22.011(f) was unconstitutional as applied to him, violating the federal

and state constitutional guarantees of equal protection and substantive due process. 4

We applied a rational-basis test to Estes’s equal-protection claim and concluded that

section 22.011(f) was unconstitutional as applied to him because it penalized Estes

differently than a similarly situated defendant with no rational basis for the different

treatment. Estes v. State, 487 S.W.3d 737, 750 (Tex. App.—Fort Worth 2016) (Estes I).

But the court of criminal appeals concluded that section 22.011(f) was “rationally

related to the compelling interest the State has in protecting children from sexual

abuse” and exploitation and therefore did not violate Estes’s right to equal protection

under a rational-basis analysis. Estes II, 546 S.W.3d at 700. The court of criminal

appeals reversed our Estes I judgment and remanded Estes’s appeal to us to consider

Estes’s remaining constitutional issues: (1) whether a strict-scrutiny analysis applies to

Estes’s equal-protection claim and (2) whether section 22.011(f) violated Estes’s

substantive due-process rights.5 Id. at 706 & n.114.


      4
        Estes did not raise a facial challenge to section 22.011(f), only an as-applied
challenge. In any event, a facial challenge would have been unavailing. See State v.
Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013).
      5
       Estes’s indecency convictions were not at issue in the court of criminal
appeals, and Estes does not urge us to reconsider our bases for affirming those
convictions in Estes I. See Carroll v. State, 101 S.W.3d 454, 460–61 (Tex. Crim. App.
2003) (approving court of appeals’ conclusion that trial court did not err even though
court of criminal appeals had remanded only for reconsideration of harm); cf. Sanders

                                            4
 II. EQUAL PROTECTION: STRICT SCRUTINY OR RATIONAL BASIS

       The court of criminal appeals concluded that the enhanced punishment scheme

as applied to Estes survived a rational-basis review and, therefore, did not violate

Estes’s rights to equal protection. Estes II, 546 S.W.3d at 699–702. We now must

decide if a strict-scrutiny analysis applies to Estes’s equal-protection claim and, if so,

presumably determine if the enhanced punishment scheme found in section 22.011(f)

meets that test.

       Estes argues that section 22.011(f) impinges on his fundamental right to marry,

mandating application of the strict-scrutiny test. The State concedes that marriage is a

fundamental personal right, but asserts that section 22.011(f) is not subject to strict

scrutiny because it does not “place a direct limit on entering marriage versus creating

different consequences due to being married”—it does not significantly interfere with

a fundamental right.     Our issue, as succinctly stated by Judge David Newell, is

whether “strict scrutiny appl[ies] because the distinction between married and

unmarried offenders significantly interferes with the fundamental right to marry.”

Estes II, 546 S.W.3d at 715 (Newell, J., concurring and dissenting).6


v. State, 963 S.W.2d 184, 186 (Tex. App.—Corpus Christi 1998, pet. ref’d) (holding
remand from court of criminal appeals to address “remaining” issues did not allow
court to address issues appellant did not raise in original briefing). Thus, the portion
of our prior judgment affirming the trial court’s indecency judgments as to counts six
and seven is unchanged.
       6
        Judge Bert Richardson and Judge Barbara Hervey joined Judge Newell’s
dissenting and concurring opinion.


                                            5
       Under the strict-scrutiny test, a statutory classification will pass constitutional

muster only if it is suitably tailored to serve a compelling state interest. City of Cleburne,

Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985); Schlittler v. State, 488 S.W.3d 306,

316 (Tex. Crim. App. 2016). A statute is reviewed under this test if a classification

interferes with a fundamental right or burdens an inherently suspect class.7 Cleburne,

473 U.S. at 440; Schlittler, 488 S.W.3d at 316. But even fundamental rights are subject

to reasonable regulations that do not significantly interfere with the assertion of that

right. See Zablocki v. Redhail, 434 U.S. 374, 386–88 (1978). Therefore, only if a statute

places a direct limit on a fundamental right such as marriage will strict scrutiny apply.

See id.; see also Califano v. Jobst, 434 U.S. 47, 53–54 (1977) (concluding social-security-

benefit rule that terminated benefits upon beneficiary’s marriage not subject to strict

scrutiny because rule did not “attempt to interfere with the individual’s freedom to

make a decision as important as marriage”).

       The right to marry is a fundamental personal right.              Obergefell v. Hodges,

135 S. Ct. 2584, 2598 (2015). But the punishment-enhancement scheme found in

section 22.011(f) does not directly limit or significantly interfere with that right.

Although a sexual-assault defendant’s marital status could subject him to a higher

punishment range, we agree with Judge Newell that “[a]ny interference with the right

to marry due to a statutory distinction between married and unmarried offenders is, at

most, incidental, if not purely hypothetical.” Estes II, 546 S.W.3d at 717.

       7
        Estes does not contend that section 22.011(f) burdens a suspect class.


                                              6
      “A classification based on marital status is fundamentally different from a

classification which determines who may lawfully enter into the marriage

relationship.” Zablocki, 434 U.S. 403–04. This case involves the former category.

Certainly, the punishment enhancement did not directly limit or significantly interfere

with Estes’s right to marry. See, e.g., Califano, 434 U.S. at 54 & n.11 (applying rational-

basis test to social-security regulation based on marital status and noting “[t]his is not

a case in which government seeks to foist orthodoxy on the unwilling by banning, or

criminally prosecuting nonconforming marriages” but was Congress’s recognition that

“marriage traditionally brings changed responsibilities”); Druker v. Comm’r of Internal

Revenue, 697 F.2d 46, 50–51 (2d Cir. 1982) (holding marriage-penalty tax had only

indirect effect on right to marry); Sturgell v. Creasy, 640 F.2d 843, 853–54 (6th Cir.

1981) (“While appellants argue that the existing [welfare] program provides a

disincentive for Paul Sturgell to remain at home with his family, this is not the type of

direct and substantial interference with a family relationship which would trigger close

judicial scrutiny.”); Schlittler, 488 S.W.3d at 317 (holding any infringement on father’s

fundamental interest in care, custody, and management of his son by improper-

contact statute was incidental and did not warrant strict scrutiny); cf. Zablocki, 434 U.S.

at 387 (holding statute requiring court approval before person owing child support

may marry “does interfere directly and substantially with the right to marry”). As

such, strict scrutiny does not apply to an equal-protection review of section 22.011(f)

as applied to Estes. And as the court of criminal appeals found in Estes II, section


                                            7
22.011(f) does not violate equal protection under a rational-basis review. 546 S.W.3d

at 700.

                        III. SUBSTANTIVE DUE PROCESS

       Estes also argues that section 22.011(f) as applied to the circumstances of his

case violates federal and state substantive due process.8 He bears the burden to show

that this statute as applied to his circumstances violated substantive due process by

interfering with his protected fundamental right to marry. See Schlittler, 488 S.W.3d at

313–14. Substantive due process provides protection against government interference

with deeply rooted fundamental rights and liberty interests. Washington v. Glucksberg,

521 U.S. 702, 719–21 (1997); Schlittler, 488 S.W.3d at 312–13.

       As we recognized in our equal-protection discussion, the right to marry is a

fundamental one.       But as we also discussed, the enhanced-punishment scheme

triggered by Estes’s marital status at the time of the offenses did not directly limit or

substantially interfere with his right to marry. Therefore, and as with Estes’s equal-

protection claim, strict scrutiny does not apply, and section 22.011(f) need only be

rationally related to a legitimate state interest. See, e.g., Schlittler, 488 S.W.3d at 314–15;

Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 343 (Tex. App.—Houston [14th Dist.] 2017,

no pet.). As the court of criminal appeals held in Estes II, section 22.011(f) bears a

rational relationship to a legitimate state interest. 546 S.W.3d at 699–702 (majority

       8
        The due-process guarantees found in the United States and Texas
Constitutions are coextensive; thus, we need not address each separately. See Salazar v.
State, 298 S.W.3d 273, 278 (Tex. App.—Fort Worth 2009, pet. ref’d).


                                              8
op.). The court summarized that legitimate state interest as being founded on the

protection of children from sexual offenses:

         [T]he Legislature could rationally conclude that to be a married man or
         woman is to project the kind of “stability” and “safe haven” that many
         children find comfort in. It could rationally conclude that one who has
         solemnly sworn to “forsak[e] all others” might be perceived, at least by
         some parents, as being less likely to make sexual advances upon their
         children. And it could rationally see fit to declare that one who would
         enjoy this marital perception of trustworthiness will be punished all the
         more severely if he uses it to groom, and then sexually abuse, a child.

                 . . . We are simply unwilling, at least on this record, to discard as
         “irrational” the idea that marriage bestows upon its participants a certain
         aura of trustworthiness, specifically in regard to children. Nor do we
         think the Constitution precludes our Legislature from reserving, for
         deterrent purposes, a higher degree of punishment for those who would
         defile that trust by using it to sexually assault a child.

Id. at 701–02 (footnotes omitted). Indeed, Katie’s mother testified that Estes’s status

as a married man informed her decision to allow her daughter to sleep over at his

house.

         For these reasons, we conclude that section 22.011(f), as applied to Estes and

reviewed under the rational-basis test, did not violate his constitutional rights to

substantive due process. See, e.g., Schlittler, 488 S.W.3d at 315–16 (holding penal code

section 38.111, which criminalizes incarcerated felon’s improper contact with victim,

did not violate substantive due process as applied to appellant’s circumstances because

statute “constitutes a rational exercise of governmental authority for the purpose of

protecting sexual-assault victims and their family members from harassment”);

Doolittle v. State, No. 03-16-00685-CR, 2017 WL 2729670, at *7 (Tex. App.—Austin


                                              9
June 22, 2017, no pet.) (mem. op., not designated for publication) (holding sexual-

offender-registration requirements did not offend due process because they are

rationally related to governmental interest in protecting citizens from sexual

offenders).

                                IV. CONCLUSION

      Section 22.011(f) as applied to Estes is not subject to strict scrutiny because it

did not directly limit or significantly interfere with his fundamental right to marry.

Because this section is rationally related to a legitimate governmental interest, its

application to Estes’s punishment for sexual assault did not violate his rights to equal

protection or substantive due process. Accordingly, we affirm the trial court’s sexual-

assault judgments. We again affirm the trial court’s indecency judgments for the

reasons stated in Estes I. 487 S.W.3d at 750–62.


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

Publish

Delivered: December 13, 2018




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