Affirmed and Majority and Concurring Memorandum Opinions filed March
12, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00902-CR

                    DOUGLAS HARRY YOUNG, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 16CR2784



         C O N C U R R I N G ME M O R A N D U M O P I N I O N

      Although I concur in the judgment, I wish to express a concern with the
underlying constitutional implications of appellant’s conviction.

      The People are guaranteed a limited number of fundamental and clearly
established constitutional rights; the right to due process of law is indisputably on
this preciously short list.1 Here, the putative victim of the aggravated sexual
assault did not have a guardian and the record is devoid of any evidence that she
has ever been the subject of a proceeding that adjudicated her to be incompetent;
therefore, she is to be presumed competent for all relevant purposes as a matter of
law.2 Our decision today, however, effectively approves the jury’s determination
that she is incompetent. I find this determination (and the implications thereof)
constitutionally troubling.

       Specifically, the putative victim has now been deprived of (inter alia) the
ability to have sexual relations without exposing her partners to the prospect of
lengthy prison sentences even though the record lacks any evidence she was
provided with either notice that her competence would be adjudicated or an
opportunity to be heard. This outcome is particularly troubling because the alleged
victim was not a party to the proceedings below; as a result, she appears to lack
standing to contest the jury’s determination or its effects on her.

       1
          See U.S. Const. amend. XIV, § 1; see also 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 of the land.”) and MAGNA CARTA, ch. 39 (“No
free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or
exiled, or deprived of his standing in any other way, nor will we proceed with force against him,
or send others to do so, except by the lawful judgment of his equals or by the law of the land.”).
Cf. Benge v. Williams, 472 S.W.3d 684, 739 (Tex. App.—Houston [1st Dist.] 2014) (Jennings, J.,
dissenting from denial of en banc reconsideration) (“As illustrated by Dickens’s tale, if we, as
lawyers and judges in the year 2015, want to preserve and protect the 800-year-old legacy of
Magna Carta, we must be ever vigilant in the performance of our duties as stewards and
‘guardians of the law.’”), aff’d, 548 S.W.3d 466 (Tex. 2018), and Turner v. Robinson, 534
S.W.3d 115, 128 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
       2
          Tex. Health & Safety Code Ann. § 592.021 (“Each person with an intellectual disability
has the right to…presumption of competency.”). See also Tex. Health & Safety Code Ann. §
592.011 (a) (“Each person with an intellectual disability in this state has the rights, benefits, and
privileges guaranteed by the constitution and laws of the United States and this state.”) and Tex.
Health & Safety Code Ann. § 591.002 (e) (“[P]ersons with an intellectual disability who have
not been adjudicated incompetent and for whom a guardian has not been appointed by a due
process proceeding in a court have the same rights and responsibilities enjoyed by all citizens of
this state.”).

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       Although appellant summarily mentions that the alleged victim’s
constitutional rights are affected by his conviction, these issues were not presented
to the trial court below (thereby highlighting the implicated inequities).
Additionally, appellant’s constitutional attack is expressly limited to Texas Code of
Criminal Procedure § 38.072 (Hearsay Statement of Certain Abuse Victims); as a
result, the constitutionality of the statutory scheme which authorizes Texas juries
to effectively determine the competence of abuse victims was neither presented to
the trial court nor properly briefed herein. Therefore, the alleged victim in this
case had her rights effectively adjudicated without due process yet has no
immediately apparent remedy therefor; this outcome is anathema under our system
of laws.3

       We are powerless to disturb a jury’s determination of properly submitted
factual determinations (absent errors that are not presented herein); however, the
instant case presents us with a statutory scheme that appears to effectively punish
disabled people who voluntarily participate in the judicial process. While I believe
it is beyond dispute that we as a society have a responsibility to care for those who
are incapable of caring for themselves, the judiciary remains entrusted with the
solemn obligation to ensure that the People’s clearly established constitutional
rights remain clearly established. I therefore write separately simply to identify the
constitutional threat presented herein in the hopes that (1) parties will both timely
present these concerns to trial courts and properly brief them on appeal and (2) the




       3
         See Marbury v. Madison, 1 Cranch 137, 163, 2 L. Ed. 60 (1803) (“‘[I]t is a general and
indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at
law, whenever that right is invaded.’”) (quoting 3 W. BLACKSTONE, COMMENTARIES *23). See
also Bledsoe v. Int'l R.R. Co., 40 Tex. 537, 594 (1874).

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Legislature will acknowledge and address the dangers presented by Texas statutes
relating to the sexual assault of those who are disabled.




                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Justices Christopher, Jewell, and Hassan (Christopher, J.,
majority).
Do Not Publish — Tex. R. App. 47.2(b).




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