                                                OPINION
                                          No. 04-10-00866-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                                       Robert Louis ROSSEAU,
                                               Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010-CR-0777
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 14, 2011

REVERSED AND REMANDED

           The State appeals the trial court’s pre-trial order quashing the portion of the indictment

used to elevate each count of sexual assault from a second degree felony to a first degree felony

under section 22.011(f) of the Texas Penal Code.             We reverse and remand for further

proceedings.
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                              FACTUAL AND PROCEDURAL BACKGROUND

        Robert Rosseau was indicted on thirty (30) counts of sexual assault of a child involving

two female victims younger than 17 years of age, A.F. and A.H., and occurring over the course

of three years. A.H. is Rosseau’s step-daughter and A.F. is her friend. Each count contains

language alleging the particular conduct constituting sexual assault, plus language alleging that,

at the time of the sexual assault, the victim was “a person whom the defendant was prohibited

from marrying or purporting to marry or with whom the defendant was prohibited from living

under the appearance of being married under Section 25.01 of the Texas Penal Code, in that, the

defendant was legally married to a person other than [the victim].”1 This additional allegation

under subsection (f) of section 22.011 of the Penal Code elevates the degree of the sexual assault

offense from a second to a first degree felony, and thereby increases the range of punishment.

See TEX. PENAL CODE ANN. § 22.011(f) (West 2011). Rosseau filed a pre-trial motion to quash

the subsection (f) portion of each count of the indictment, alleging that,

        [T]he application [of §22.011(f)] to the present indictment is inappropriate. It
        creates a ‘class of individuals’ who would potentially receive a greater
        punishment than TPC, Sec. 22.011 contemplates. As applied, it violates the equal
        protection and the due process sections of both the State and Federal
        Constitutions. It punishes people for being married. Clearly, the legislature did
        not intend this section to have that effect. To allow this enhancement would lead
        to absurd and legislatively unintended consequences.


Rosseau’s motion to quash included two exhibits containing legislative history for the 2005

amendment which rewrote subsection (f) of section 22.011. The Conference Committee Report

for S.B. 6 (Exhibit A) states, in relevant part, that,

        The provisions of the bill that are the subject of this analysis would amend the
        Family Code and Penal Code as they relate to felony level offense sanctions . . .

1
  Section 25.01(a)(1) of the Penal Code provides that a person commits the offense of bigamy if (i) the person is
legally married, and (ii) purports to marry or does marry another person, or lives with another person under the
appearance of being married. See TEX. PENAL CODE ANN. § 25.01(a)(1) (West 2011).

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       The bill would amend the Penal Code by enhancing the punishment by one class
       for the offense of sexual assault . . . when the offense of bigamy or certain
       categories of bigamy are involved. The bill would also enhance the offense of
       bigamy from a Class A misdemeanor to a felony of the third degree . . . .


       The Bill Summary for S.B. 6 (Exhibit B) states that, “Senate Bill 6 amends the Education

Code, Family Code, Government Code, Human Resources Code, Penal Code, Code of Criminal

Procedure, and Texas Probate Code to make a number of reforms to the children’s protective

services and adult protective services programs, certain related guardianship issues, and other

family law matters.” The only reference in the Bill Summary to the bigamy statute is in the last

paragraph which states, “Finally, Senate Bill 6 amends the Family Code and Penal Code to

clarify provisions of the law relating to the offense of bigamy and to increase the penalty for the

offense from a Class A misdemeanor to a felony of the third, second, or first degree depending

on the age of the person to [sic] whom an actor purports to marry or with whom the actor lives

under the appearance of marriage.” The Bill Summary makes no reference to elevation of the

degree of felony for sexual assault involving bigamy, as authorized by subsection (f) of section

22.011.

       During the pre-trial hearing on Rosseau’s motion to quash, defense counsel characterized

the grounds of the motion as follows:

       My entire argument is that application of this present indictment to Robert
       Rosseau would put him in a class of individuals that would potentially receive
       greater punishment than 22.011 contemplates . . . I believe that this statute
       punishes people for being married, that the application as to Robert Rosseau
       would, in fact, punish him for being married. I do not believe that was the
       intention of the legislature at all. I believe the legislation was specifically directed
       towards a specific unique legal moral political circumstance that was happening
       in our state and nearby states, and the State should be precluded from the
       enhancement . . . .




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       In response, the State first objected to the legislative history attached to Rosseau’s motion

to quash, arguing it is not relevant because section 22.011(f) is “very clear on its face,” and the

indictment properly tracks the statutory language. The State further argued the statute does not

violate equal protection or due process because it does not penalize people for being married, but

rather seeks to protect the spouse of the victim or defendant and the sanctity of marriage. The

State described the application of the plain, clear language of section 22.011(f) to this case,

stating, “this is a felony in the first degree if the victim was a person whom the actor was

prohibited from marrying, which in this case the defendant was by law prohibited from marrying

the victim because the defendant was already married to the mother of the victim.”

       At the conclusion of the hearing, the trial court granted the motion to quash, explaining

its reasoning as follows:

       You [the State] might be tracking the statute very precisely, but I don’t believe
       that the statute was ever intended to say we’re going to take this bigamy statute,
       we’re going to enhance it over here, even though the person who is charged, the
       evidence is not going to show that they were engaging in bigamy or doing any of
       the things that is listed in this bigamy statute. When it was first presented to me, I
       thought that the fact scenario was going to show that not only was the person
       committing the offense of sexual assault but they were also doing something
       applicable under this bigamy statute, other than just having the status of being a
       married person. So I don’t see it. I think it raises constitutional issues . . .
       [which] does make it a proper subject for a motion to quash. I’m going to find
       that it is violative of constitutional rights and I’m going to grant the motion to
       quash in part . . . with regard to each enhancement provision . . . .


The court’s written order grants the motion to quash in part as to “all enhancements.” The State

appealed, and moved for a stay of the trial court proceedings pending appeal. See TEX. CODE

CRIM. PROC. ANN. art. 44.01(a)(1), (e) (West Supp. 2010). The stay was granted and this appeal

followed.




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                                 MOTION TO QUASH INDICTMENT

       On appeal, the State asserts that the trial court erred in quashing the subsection (f) portion

of each count of the indictment because: (1) Rosseau’s motion to quash only raised an “as-

applied” challenge to the constitutionality of section 22.011(f), which could not be determined

pre-trial because it depends on the facts developed at trial; and (2) alternatively, section 22.011(f)

is constitutional. In response, Rosseau argues the statute violates equal protection and due

process because it penalizes married persons and that was not the legislative intent; therefore, the

statute is unconstitutional and the court correctly quashed those portions of the indictment.

Jurisdiction

       As an initial matter, we must determine whether the State has the right to appeal the

court’s pretrial order, and thus whether we have jurisdiction over this appeal. Article 44.01(a) of

the Code of Criminal Procedure authorizes the State to appeal in certain limited situations such

as from an order that “dismisses an indictment . . . or any portion of an indictment.” TEX. CODE

CRIM. PROC. ANN. art. 44.01(a)(1). In his appellee’s brief and at oral argument, Rosseau argued

that the trial court’s order quashing the subsection (f) portions of the indictment is not an

appealable order because it does not foreclose the State from proceeding with its prosecution of

the alleged sexual assaults, only from proceeding in the manner it desires, i.e., as first degree

felonies; therefore, Rosseau asserts that because the order did not terminate the prosecution, the

State does not have the right to appeal under article 44.01(a)(1) and this appeal must be

dismissed for lack of jurisdiction. In its written response to a show cause order issued by this

court, and at oral argument, the State asserted that we do have jurisdiction over this appeal

because the trial court’s order quashed “a portion of the indictment” as contemplated by article




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44.01(a)(1), and the quashing of the subsection (f) portions of the indictment foreclosed the

prosecution of the first degree felony offenses.

       In addition, the parties further refined their positions during oral argument, and both sides

have submitted post-argument supplemental authorities. Specifically, Rosseau contends the

subsection (f) allegation set forth in the indictment constitutes a mere enhancement of the

punishment range, not an element of the offense; therefore, the quashing of the subsection (f)

paragraphs only affects the applicable range of punishment and does not affect the State’s ability

to obtain convictions on the alleged sexual assault conduct. The State, on the other hand, asserts

the subsection (f) allegation constitutes an element of the first degree sexual assault offense in

that it is a factual matter that must be proven during the guilt/innocence phase in order to obtain a

first degree felony conviction, and that failure to prove the subsection (f) allegation would result

in submission of a lesser included offense instruction, not merely the application of a lower

punishment range; therefore, the State contends the court’s order striking the subsection (f)

portions of the indictment “effectively terminates the prosecution” as to the first degree felony

offense over the State’s objection, thus giving it the right to appeal.

       Article 44.01(a)(1) gives the State the right to appeal any trial court order that “dismisses

an indictment, information, or complaint or any portion of an indictment, information, or

complaint[.]” Id. This provision has been construed to mean the State may appeal any order,

short of an acquittal, which has the effect of terminating the prosecution, regardless of how the

order is labeled or characterized. Moreno v. State, 807 S.W.2d 327, 332 (Tex. Crim. App. 1991).

In Moreno, the State was permitted to appeal a pretrial order quashing the information based on a

lack of factual particularity because the court construed the trial court’s order as effectively

terminating the proceedings “so long as the State was ‘not willing’ to supply the missing notice.”



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Id. at 333-34 (finding it “of no significance that the State has the option of amending the

information”).       The rule in Moreno that the State may appeal any order “concerning an

indictment or information” that effectively terminates the prosecution in favor of the defendant

remains the controlling law. See id. at 332. Since Moreno, the Court of Criminal Appeals has

consistently held that, for purposes of article 44.01(a)(1), a trial court order “effectively

terminates” the prosecution when the effect of the order is to “force[] any alteration of the

indictment       .      .   .    and    the     State     is     not     willing     to     comply

. . . .” See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 914 (Tex. Crim. App. 2011) (orig.

proceeding) (noting State has right to appeal under article 44.01(a)(1) when the trial court’s order

forces an alteration on the face of the charging instrument, thereby effectively terminating

prosecution of the offense as charged, but has no right to appeal a pretrial ruling on a possible

punishment issue that does not dismiss any part of the actual indictment); State v. Stanley, 201

S.W.3d 754, 758-59 (Tex. Crim. App. 2006) (quoting Moreno, 807 S.W.2d at 334, and holding

State had right to appeal order dismissing charging instrument on ground that statute was

unconstitutional even though ruling was made after all trial evidence was received); see also

Taylor v. State, 886 S.W.2d 262, 266 (Tex. Crim. App. 1994) (citing Moreno and noting that on

its face article 44.01(a)(1) deals solely with dismissal of charging instruments and orders that

have an effect on the indictment or information, and does not encompass an order dismissing a

prosecution based on sufficient evidence establishing entrapment).

       At oral argument and in his supplemental authorities, Rosseau relied on State v. Morgan,

160 S.W.3d 1 (Tex. Crim. App. 2004), but it is distinguishable from the case before us. The

State in Morgan attempted to appeal from a pretrial advisory ruling by the trial court that, if the

defendant were convicted of DWI as alleged in the information (which contained an



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enhancement paragraph alleging a prior DWI conviction), the punishment range for a Class B,

not a Class A, misdemeanor would be applied. Id. at 2. The Court of Criminal Appeals, relying

on Moreno, noted the trial court’s ruling affected only the punishment range and held the State

had no right to appeal from the ruling because it did not affect the face of the indictment, but

merely advised how the court intended to proceed at punishment if the State obtained a

conviction; the order did not force an alteration of the information before trial could proceed on

the information as written, and thus did not effectively terminate the prosecution under Moreno. 2

Id. at 4. In contrast, here the trial court’s order quashing the allegations of bigamous conduct

under section 22.011(f) altered the face of the indictment by striking the subsection (f)

paragraphs from each count of sexual assault. The State’s prosecution could only proceed on the

altered indictment, which now alleged second degree felonies instead of first degree felonies.

See State v. Christensen, No. 05-10-00940-CR, 2011 WL 2176656, at *2 (Tex. App.—Dallas

June 6, 2011, pet. ref’d) (not designated for publication) (distinguishing Morgan and holding

State had right to appeal under article 44.01(a)(1) because trial court’s order did not simply

construe the charging instrument while permitting the DWI prosecution to proceed as charged,

but rather the order quashed an allegation of a prior DWI conviction which was an essential

element of the felony DWI offense charged in the indictment, thereby terminating the

prosecution of the felony offense).

        The question of whether the subsection (f) allegation of bigamous conduct is an element

of the section 22.011(f) offense or simply a punishment enhancement is central to our

jurisdictional issue because it determines whether the court’s order effectively terminates the

prosecution of the offense as charged. Even though the term “enhancement” is often used rather


2
 Although the issue of whether the prior DWI conviction was an element of the offense, or merely a punishment
enhancement, was briefed by the State, the court did not reach the merits of the issue. Morgan, 160 S.W.3d at 3.

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loosely by courts and practitioners, for purposes of this discussion there is a clear distinction

between a punishment “enhancement” and an “element” of an offense. An allegation of a prior

conviction or other fact made for purposes of enhancement of the applicable punishment range is

not a component element of the primary offense. Calton v. State, 176 S.W.3d 231, 233 (Tex.

Crim. App. 2005) (citing Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997)); Reyes v.

State, 314 S.W.3d 74, 80 (Tex. App.—San Antonio 2010, no pet.).                “An enhancement

‘increase[s] the punishment range to a certain range above that ordinarily prescribed for the

indicted crime.’ It does not change the offense, or the degree of the offense, of conviction.”

Calton, 176 S.W.3d at 233 (quoting Ex parte Beck, 769 S.W.2d 525, 527 (Tex. Crim. App.

1989)); see also Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011) (recognizing the

difference between statutory language that increases the offense level rather than increasing the

punishment).    Indeed, while a defendant is entitled to written notice of a punishment

enhancement allegation, it need not be pled in the indictment nor proven during the

guilt/innocence phase of trial. Brooks, 957 S.W.2d at 34; Reyes, 314 S.W.3d at 80. Moreover,

there can be no enhancement until a person is first convicted of an offense of a certain degree; a

“true” or “not true” finding on an enhancement allegation is made during the punishment phase,

after conviction of the offense. Calton, 176 S.W.3d at 233-34.

       An element, on the other hand, must be pled in the indictment and proven beyond a

reasonable doubt during the guilt/innocence phase of trial—it is part of the fact finder’s

determination of whether the defendant is guilty of the charged offense. See Reyes, 314 S.W.3d

at 81. The legislature has defined an “element of [an] offense” as (i) the forbidden conduct; (ii)

the required culpability; (iii) any required result; and (iv) the negation of any exception to the

offense. TEX. PENAL CODE ANN. § 1.07(a)(22) (West 2011); Calton, 176 S.W.3d at 233. In



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determining whether a particular fact constitutes an element of the offense, as opposed to a

punishment enhancement, the court looks to the plain language of the penal statute and applies

the plain meaning of the statutory language if it is not ambiguous. Calton, 176 S.W.3d at 232-33

(recognizing a statute may present a prior conviction as either an enhancement or an element of

the offense, and the court looks to the plain statutory language to determine which it is). Only if

the statutory language is ambiguous or would lead to an absurd result, does the court resort to

extra-textual sources to determine the elements of the offense. Id. at 233; Reyes, 314 S.W.3d at

80.

       Here, the text of section 22.011(f) states as follows:

       An offense under this section is a felony of the second degree, except that an
       offense under this section is a felony of the first degree if the victim was a
       person whom the actor was prohibited from marrying or purporting to marry or
       with whom the actor was prohibited from living under the appearance of being
       married under Section 25.01.

TEX. PENAL CODE ANN. § 22.011(f) (emphasis added). The statute defines a first degree felony

sexual assault as occurring when a sexual assault has been committed under section 22.011 and

when the victim was a person whom the defendant was prohibited from marrying, purporting to

marry, or live with under the appearance of being married—which we refer to in this opinion as

“bigamous conduct.” Id. There is nothing ambiguous about the plain language of the statute.

Indeed, the structure of section 22.011(f) is similar to that of the penal statutes analyzed in

Calton and Reyes in which the courts concluded that an alleged prior conviction for the same

offense was an element necessary for commission of the higher degree offense rather than

merely a punishment enhancement. See Calton, 176 S.W.3d at 234; see also Reyes, 314 S.W.3d

at 81. Calton analyzed Penal Code section 38.04 defining the offense of evading arrest as a

Class B misdemeanor “except that the offense is . . . a felony of the third degree if . . . the actor



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has been previously convicted under this section . . . .” Calton, 176 S.W.3d at 234. Reyes

analyzed Penal Code section 22.01 defining assault-bodily injury (family) as a Class A

misdemeanor “except that the offense is a felony of the third degree if . . . it is shown on the trial

of the offense that the defendant has been previously convicted of an offense under this chapter

. . . .” Reyes, 314 S.W.3d at 81. Both courts concluded the statutory language was not

ambiguous, and that the plain language of the statute requires proof of the prior conviction as an

element of the third degree felony offense. Calton, 176 S.W.3d at 234; Reyes, 314 S.W.3d at 81

(noting the structure of section 22.01 defining assault is similar to the statutory structure of

section 38.04 defining evading arrest which was analyzed in Calton).

       Similarly, here, section 22.011(f) provides that sexual assault is a second degree felony

“except that an offense under this section is a felony of the first degree if the victim was a person

whom the actor was prohibited from marrying . . . .” TEX. PENAL CODE ANN. § 22.011(f)

(emphasis added). The statute has the same structure as the statutes in Calton and Reyes,

providing that the offense is a certain class or degree of offense, “except that” it constitutes a

higher class or degree of offense if a certain additional fact exists; as in Calton and Reyes, proof

of this additional fact is required in order for the higher degree offense to occur. As in both

cases, the plain language and structure of section 22.011(f) shows that the factual allegation of

bigamous conduct is an element of the first degree felony offense which must be proved at the

guilt/innocence phase of trial, rather than an enhancement to be applied at the punishment phase.

       Based on the foregoing analysis, we agree with the State that it has the right to appeal the

trial court’s order quashing the subsection (f) portions of each count of the indictment. The

effect of the subsection (f) allegation is to change the very nature of the offense by elevating the

sexual assault conduct from a second degree felony to a first degree felony based on an



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additional fact; it does not merely enhance the applicable punishment range, but changes the

degree of the offense. Because it is an element of a first degree felony sexual assault offense, we

conclude the quashing of the subsection (f) allegations effectively terminated the State’s

prosecution of Rosseau for first degree felony sexual assault. Accordingly, the trial court’s order

is appealable by the State under article 44.01(a)(1), and this court has jurisdiction over the

appeal.

Standard of Review

          Having concluded that we have jurisdiction over this appeal, we proceed with our review

of the trial court’s order. We review a trial court’s ruling on a motion to quash an indictment de

novo because the sufficiency of a charging instrument is a question of law. Smith v. State, 309

S.W.3d 10, 13-14 (Tex. Crim. App. 2010); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.

2004).      Generally, when an indictment tracks the language of a statute, it will satisfy

constitutional requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

Further, a statute is presumed to be constitutional until it is determined otherwise, and a litigant

who challenges the constitutionality of a statute has the burden of rebutting the presumption of

constitutionality. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Flores v.

State, 245 S.W.3d 432, 438 (Tex. Crim. App. 2008).

Analysis

          Issue 1: Can an As-Applied Challenge be Resolved Pre-Trial ?

          The State’s first issue on appeal is that the trial court erred in granting Rosseau’s pre-trial

motion to quash because it raised an “as-applied” constitutional challenge and resolution of an

“as-applied” challenge is dependent on the facts of the case—which had yet to be developed




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through trial. The State contends it is improper to resolve an “as-applied” challenge in a pre-trial

proceeding. We agree.

        An “as-applied” constitutional challenge may not be resolved pretrial because it depends

on development of the specific facts of the case showing how the statute is being applied to the

defendant. Lykos, 330 S.W.3d at 910. In Lykos, the court held that because a claim that a statute

is unconstitutional as applied requires a review of the evidence, it cannot be properly raised by a

pretrial motion to quash the indictment. Id. at 910. The trial court does not have authority to

conduct a pretrial evidentiary hearing with regard to a defendant’s “as-applied” constitutional

challenge to a statute.   Id. at 919 (also noting a defendant is not permitted to attack the

sufficiency or adequacy of an indictment by presenting evidence outside the four-corners of the

indictment). Therefore, an “as applied” challenge must be brought during or after a trial on the

merits because it is only then that the particular facts and circumstances of the case necessary to

determine whether the statute has been applied in an unconstitutional manner have been

presented. Id. at 910.

        Here, the text of Rosseau’s motion to quash clearly stated an “as-applied” challenge to

the constitutionality of section 22.011(f) based on federal and state equal protection and due

process grounds, namely that the statute treats married defendants differently than unmarried

defendants. Further, defense counsel’s argument at the hearing reinforced that he was only

challenging the “application of the statute to Rosseau.” Even though no evidence was presented

at the motion to quash hearing, in granting the motion the trial court reasoned, “the evidence is

not going to show . . . they were engaging in bigamy;” however, this pretrial ruling was made

before the presentment of any evidence concerning the particular facts and circumstances of the

case.



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       In Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008), the court noted that the

purpose of a pre-trial motion such as a motion to quash the indictment is to address “those issues

that can be determined before there is a trial on the general issue of the case.” Id. at 437 (quoting

Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005)). The purpose of a pretrial motion

is to address “preliminary matters, not the merits of the case itself.” Woods, 153 S.W.3d at 415

(pretrial proceedings are not intended to be “mini-trials” on the sufficiency of the evidence to

support an element of the offense). The court in Flores affirmed the denial of a pre-trial motion

to quash the indictment based on an “as-applied” equal protection challenge because it could

have been resolved only by evidence adduced at trial; the court stated it was therefore not a

proper issue for pretrial resolution. Id.; see also id. at 442-43 (Cochran, J., concurring, and

stating that a constitutional challenge to a penal statute “as applied” to the defendant is properly

made only after all of the evidence has been developed at trial, either through a motion for new

trial or a motion in arrest of judgment).

       It follows that a pretrial motion to quash an indictment may be used only for a facial

challenge to the constitutionality of a statute. See Sheldon v. State, 100 S.W.3d 497, 505 (Tex.

App.—Austin 2003, pet. ref’d) (op. on reh’g) (motion to quash indictment may be used only for

facial challenges to statute’s constitutionality, not for an “as applied” challenge which may be

brought in the trial court through a post-conviction motion) (citing State v. Rosenbaum, 910

S.W.2d 934, 946, 948 (Tex. Crim. App. 1994) (dissenting op. adopted on reh’g)); see also Scott

v. State, 322 S.W.3d 662, 665 n.1 (Tex. Crim. App. 2010) (a statute may be challenged as

unconstitutional “on its face,” which means that, by its terms, it always operates

unconstitutionally, or as unconstitutional “as applied,” which means that it operates

unconstitutionally with respect to the claimant because of his particular circumstances).



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       In his appellee’s brief, Rosseau makes an argument that section 22.011(f) is

unconstitutional “on its face,” as well as in its application to Rosseau. However, neither the text

of his motion to quash nor his argument in the trial court raised a facial challenge to the

constitutionality of section 22.011(f).     See Karenev, 281 S.W.3d at 434 (holding a facial

challenge to the constitutionality of a statute may not be raised for the first time on appeal; it is a

forfeitable right). In raising only an “as applied” challenge, Rosseau conceded the general

constitutionality of section 22.011(f), and asserted only that the statute is unconstitutional as

applied to his particular facts and circumstances; therefore, he had the burden to show that

section 22.011(f), in its operation, is unconstitutionally applied to him. Lykos, 330 S.W.3d at

910 (court considering “as applied” challenge looks to challenger’s conduct alone). In the

context of a pretrial motion to quash, he could not meet that burden and his “as applied”

challenge fails.

       At oral argument, counsel for Rosseau insisted that, in addition to the “as applied”

constitutional challenge, a facial challenge can be found within his motion to quash. Even if we

could discern a facial challenge within Rosseau’s motion, he has failed to rebut the presumption

of constitutionality by proving the statute operates unconstitutionally in all its applications, and

can never be constitutionally applied to any defendant charged under section 22.011 under any

set of facts and circumstances. Id, at 908-09 (to prevail on facial challenge, party must show

statute always operates unconstitutionally, in all possible circumstances); Rodriguez v. State, 93

S.W.3d 60, 69 (Tex. Crim. App. 2002) (analysis of statute’s constitutionality must begin with

presumption that statute is valid and legislature did not act arbitrarily or unreasonably in enacting

it).




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       Conclusion

       As in Calton and Reyes, section 22.011(f) does not merely prescribe an increased

punishment range when the additional fact of bigamous conduct is proven, but requires proof of

the additional fact as an element in order for the first-degree felony conviction to occur. See

Calton, 176 S.W.3d at 234; see also Reyes, 314 S.W.3d at 81. Therefore, the State has the right

to appeal the trial court’s order quashing the subsection (f) portions of the indictment because the

order altered the face of the indictment, changed the nature of the offense on which the State’s

prosecution could proceed, and effectively terminated the State’s prosecution of Rosseau for

commission of first degree felony sexual assault. Rosseau’s motion to quash challenged the

constitutionality of section 22.011(f) only as it applied to him.           Because an “as-applied”

constitutional challenge cannot be resolved through a pre-trial motion to quash prior to

presentment of the evidence, we sustain the State’s first issue. This issue is dispositive of the

State’s appeal, and therefore we need not address its second issue.

       Based on the foregoing analysis, we reverse the trial court’s order quashing the

subsection (f) portions of the indictment, reinstate the original indictment, and remand the case to

the trial court for further proceedings on the original indictment.


                                                         Phylis J. Speedlin, Justice


PUBLISH




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