                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00215-CR


MARK FLEMING                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                          OPINION ON REMAND

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                                I. INTRODUCTION

      Appellant Mark Fleming entered a negotiated plea of guilty to four counts

of aggravated sexual assault of a child younger than fourteen years of age. 1 The

trial judge sentenced Fleming to ten years’ confinement, suspended imposition of




      1
         See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (West Supp.
2012).
the sentence, and placed him on ten years’ community supervision. Among the

conditions of punishment, Fleming must register as a sex offender.

      Before trial, Fleming filed a motion to quash the indictment, challenging the

constitutionality of Texas Penal Code section 22.021 under the Due Process

Clause to the United States Constitution and the due course of law provision to

the Texas Constitution.2    In his motion, Fleming claimed that the statute is

unconstitutional because it does not have a mens rea requirement and does not

permit the affirmative defense of mistake of fact.    The trial judge denied the

motion.

      Following sentencing, Fleming appealed the trial judge’s ruling to this

court. Fleming v. State, 323 S.W.3d 540 (Tex. App.—Fort Worth 2010), vacated,

341 S.W.3d 415 (Tex. Crim. App. 2011). We held that under the Due Process

Clause, the statute is constitutional. Id. at 547. This court declined, however, to

address Fleming’s due course of law claim, holding that Fleming failed to

preserve the issue for appeal because he failed to assert or brief “an argument

that the due course of law analysis under the Texas constitution is different or

provides greater protections” than the Due Process Clause. Id. at 542.

      On June 13, 2011, the Texas Court of Criminal Appeals vacated this

court’s judgment, holding that our conclusion that Fleming had failed to preserve

his due course of law argument “was improvident.” Fleming v. State, 341 S.W.3d


      2
       See U.S. Const. amends. V, XIV, § 1; Tex. Const. art. I, § 19.


                                        2
at 416.   Because this court has already decided that the due course of law

provision provides the same protections as the Due Process Clause, and

because we conclude that Texas Penal Code section 22.021 does not violate

Due Process, we will again affirm. See Salazar v. State, 298 S.W.3d 273, 277–

78 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding that the State constitution’s

due course of law provision does not provide a greater level of protection than

the United States Constitution’s Due Process Clause).

                                 II. DISCUSSION

      In four points,3 Fleming argues that the Texas Penal Code provision under

which he was convicted, section 22.021, is unconstitutional under the federal

Due Process Clause and the Texas due course of law provisions because of its

“failure to require the State to prove that [Fleming] had a culpable mental state

(‘mens rea’) relating to the alleged victim’s age when engaging in the conduct

alleged” and “its failure to recognize an affirmative defense based on [Fleming’s]




      3
        After the court of criminal appeals vacated our original judgment, we
asked for further briefing by the parties and again heard oral arguments. In
coming to our analysis in this opinion, we have considered the parties’ original
briefs on the merits, the court of criminal appeals’ instructions to us on remand,
and the additional briefing on remand and oral arguments by the parties to this
case. For the purposes of clarity, we are also addressing all four of Fleming’s
original points on appeal, not just his two points pertaining to his due course of
law argument.


                                        3
reasonable belief that the alleged victim at the time was 17 years of age or

older.”4 We disagree.

        The federal constitution provides: “No State shall . . . deprive any person

of life, liberty, or property, without due process of law . . . . U.S. Const. amends.

V, XIV, § 1. Our state constitution provides: “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.” Tex. Const. art. I,

§ 19.

        A.    Scope of the Due Course of Law Provision

        This court has already had the occasion to address the question of

whether this State’s due course of law provision provides the same, more, or less

protection than the federal Due Process Clause. Salazar, 298 S.W.3d at 277–

78. As we stated in Salazar, this court’s holding that the two provisions provide

the same protections is predicated on the Supreme Court of Texas’s holding that

the two clauses are nearly identical and contain no meaningful distinctions in

their respective clauses. Id. at 279–80 (citing Univ. of Tex. Med. Sch. at Houston

v. Than, 901 S.W.2d 926, 929 (Tex. 1995)). Furthermore, this court and the

majority of Texas courts of appeals have repeatedly held that the due course of

law provision provides the same protections as the federal Due Process Clause.

See, e.g., State v. Vasquez, 230 S.W.3d 744, 751 (Tex. App.—Houston [14th

        4
      The judgment reads that the “age of the victim at the time of the offense
was 13.”


                                         4
Dist.] 2007, no pet.); Salazar v. State, 185 S.W.3d 90, 92–93 (Tex. App.—San

Antonio 2005, no pet.); Jackson v. State, 50 S.W.3d 579, 588–89 (Tex. App.—

Fort Worth 2001, pet. ref’d); State v. Rudd, 871 S.W.2d 530, 532–33 (Tex.

App.—Dallas 1994, no pet.); Saldana v. State, 783 S.W.2d 22, 23 (Tex. App.—

Austin 1990, no pet.).

      We conclude that nothing that Fleming briefed to this court, nor anything

that he briefed in his motion to the trial court, nor anything that he briefed

regarding this issue in his briefing on remand is distinct or different in any

meaningful way from the arguments that this court has already considered on

this issue when reaching our previous holdings. See Salazar, 298 S.W.3d at

277–78; Jackson, 50 S.W.3d at 588–89.               Certainly, nothing in Fleming’s

arguments persuades us that our precedent on this matter should be overturned.

See Proctor v. State, 967 S.W.2d 840, 844–45 (Tex. Crim. App. 1998) (reasoning

that the doctrine of stare decisis should generally be followed because it

promotes “judicial efficiency and consistency, . . . reliance on judicial decisions,

and [it] contribute[s] to the actual and perceived integrity of the judicial process.”).

      Furthermore, this court agrees with Judge Keasler’s position that even

though the court of criminal appeals has never rendered an opinion on either the

scope of the due course of law provision or “the substantive rights and

protections” it provides, given longstanding precedent that application of the due

course of law provision be guided by cases from the Supreme Court of the

United States, there exists “no reason to reach a contrary conclusion with respect


                                           5
to substantive rights and protections.” Fleming, 341 S.W.3d at 416 (Keasler, J.,

concurring). This approach of treating procedural due process and substantive

due process concerns with the equal application of law is founded on the

axiomatic conclusion that the texts of both the due course of law provision and

the Due Process Clause are virtually identical. Than, 901 S.W.2d at 929 (“While

the Texas Constitution is textually different in that it refers to ‘due course’ rather

than ‘due process,’ we regard these terms as without meaningful distinction.”).

Thus, it would make little sense to treat substantive due process claims any

differently than procedural due process claims.         We therefore will address

Fleming’s arguments regarding due course of law or due process under federal

law, regardless of whether his claims are substantive or procedural in nature.

See Id.; Rose v. State, 752 S.W.2d 529, 536–37 (Tex. Crim. App. 1987)

(McCormick, J., dissenting), superseded by statute; Thompson v. State, 626

S.W.2d 750, 753 (Tex. Crim. App. [Panel Op.] 1981); Ex parte Quintanilla, 151

Tex. Crim. 328, 330, 207 S.W.2d 377, 378–79 (1947); Huntsman v. State, 12

Tex. App. 619, 625–50 (1882); see also Nat’l Collegiate Athletic Ass’n v. Yeo,

171 S.W.3d 863, 867–68 (Tex. 2005).

      B.     Substantive Due Process and Texas Penal Code 22.021

      Even though Fleming does not refer to his claims as being either

procedural or substantive due process arguments, he does not argue that the

process depriving him of his liberty is deficient; rather, Fleming argues that the

absence of a mens rea or mistake-of-age component to section 22.021 is a


                                          6
wrongful government action irrespective of the procedure in place to guarantee

fairness. Thus, we interpret Fleming’s arguments to be substantive due process

claims. See Zinermon v. Burch, 494 U.S. 113, 124–25, 110 S. Ct. 975, 982–83

(1990).

      Substantive due process protects citizens against arbitrary or wrongful

state actions, regardless of the fairness of the procedures used to implement

them. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–46, 118 S. Ct. 1708,

1716 (1998).   In assessing whether a government regulation impinges on a

substantive due process right, the first step is to determine whether the asserted

right is fundamental. See Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir.

2003) (discussing two-step process in analyzing a substantive due process

claim). Rights are fundamental when they are implicit in the concept of ordered

liberty or deeply rooted in this nation’s history and tradition. Immediato v. Rye

Neck Sch. Dist., 73 F.3d 454, 460–61 (2d Cir.), cert. denied, 519 U.S. 813 (1996)

(citing Moore v. East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977)).

Where the right infringed is fundamental, strict scrutiny is applied to the

challenged governmental regulation. Reno v. Flores, 507 U.S. 292, 305, 113

S. Ct. 1439, 1448 (1993). But where the claimed right is not fundamental, the

governmental regulation need only be reasonably related to a legitimate state

objective to survive constitutional review. Flores, 507 U.S. at 306, 113 S. Ct. at

1449. Thus, our first inquiry is to determine whether there is a fundamental right




                                        7
entitling individuals to a mens rea component or a mistake-of-age defense in a

statutory rape scheme.

      It is a basic principle of criminal law that an actor should not be convicted

of a crime if he had no reason to believe that the act he committed was a crime

or that it was wrongful. Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct.

240, 244 (1952). An intent requirement was the general rule at common law. Id.

To be sure, the absence of a mens rea requirement in a criminal statute is a

significant departure from longstanding principles of criminal law.       Staples v.

United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 1797 (1994). Nevertheless,

strict liability crimes—crimes defined without any culpable state of mind—are

known at law. Id. When strict liability is imposed, the actor is deemed to have

had sufficient notice concerning the risk of penal sanction inherent in the

proscribed activity, and it is therefore just to impose criminal liability without the

necessity of proving moral culpability. United States v. Freed, 401 U.S. 601, 613

n.4, 91 S. Ct. 1112, 1120 n.4 (1971). It has been written that “the existence and

content of the criminal prohibition in these cases are not hidden; the defendant is

warned to steer well clear of the core of the offense (as in the statutory-rape

case).” United States v. Wilson, 159 F.3d 280, 296 (7th Cir. 1998) (Posner, C.J.,

dissenting).

      To this end, state legislatures have broad powers to promote the public

welfare and to create criminal offenses and impose punishment, including the

power to define an offense that excludes the element of mental culpability from


                                          8
its definition.   Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 242

(1957). Indeed, a state legislature is free to define a criminal offense and bar

consideration of a particular defense so long as due process is not offended.

Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 2017 (1996) (quoting

Patterson v. New York, 432 U.S. 197, 201–02, 97 S. Ct. 2319, 2322 (1977)).

And it is widely recognized that adults are well aware of the strict liability aspect

of statutory rape laws. See State v. Jadowski, 680 N.W.2d 810, 821 n.42 (Wis.

2004) (discussing the colloquial phrase “[s]ixteen will get you twenty!” as a

common exclamation expressing the widespread awareness of statutory rape

laws and the strict liability aspect of the offense).

       The strict liability crime of statutory rape, in which the victim’s apparent

maturity is not a defense, is a recognized exception to the general rule requiring

mens rea in criminal statutes.      Jadowski, 680 N.W.2d at 821.       Traditionally,

according to the weight of authority, “mistake as to age” has also not been a

defense against the charge of statutory rape. Morissette, 342 U.S. at 251 n.8, 72

S. Ct. at 244 n.8.; United States v. X–Citement Video, Inc., 513 U.S. 64, 72 n.2,

115 S. Ct. 464, 469 n.2 (1994).

       Fleming argues that because the federal Due Process Clause and the

state due course of law provisions were passed at a time when there existed a

mens rea component to statutory rape laws in this nation, the lack of a mental

culpability component offends “principle[s] of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.” But the rule of


                                           9
tradition and conscience, or the guide of “historical practice,” is not a first-in-time,

bright-line rule. Egelhoff, 518 U.S. at 43, 116 S. Ct. at 2017. For example, the

fundamental right to “engage in [sexual] conduct” without intervention of the

government between consenting same-sex adults is hardly a concept that

existed prior to the adoption of either due process provision; nonetheless, the

Supreme Court, in overruling its previous holding, held this to be a fundamental

right under substantive due process. See Bowers v. Hardwick, 478 U.S. 186,

191–92, 106 S. Ct. 2841, 2844 (1986), overruled by Lawrence v. Texas, 539 U.S.

558, 567, 123 S. Ct. 2472, 2478 (2003). This is so because this right is implicit in

the concept of ordered liberty, even though “there have been powerful voices

[condemning] homosexual conduct as immoral for centuries.” Lawrence, 539

U.S. at 571, 123 S. Ct. at 2480. “Historical practice” is a probative guide to the

ordered-liberty and deeply-rooted approach in determining fundamental rights,

but it is a starting point only and not the absolute determining guide to whether a

right is fundamental. Medina v. California, 505 U.S. 437, 446, 112 S. Ct. 2572,

2577 (1992).

      Fleming argues that Lawrence v. Texas actually supports his position

because due process “extends to intimate choices by unmarried as well as

married persons”; thus, according to Fleming, it is “simply unconstitutional” to

penalize a person for making a mistake in fact concerning a minor’s age while

exercising this fundamental right. Lawrence, 539 U.S. at 578, 123 S. Ct. at 2483.

But the Lawrence Court specifically indicated that its holding did not extend to


                                          10
cases involving minors, and we easily conclude that Fleming’s reliance on

Lawrence is misplaced. Id.

      We also conclude that Fleming’s attempts to find refuge for his position in

the Supreme Court’s case of United States v. X–Citement Video is equally

unavailing.   513 U.S. at 72, 115 S. Ct. at 468.       In X–Citement Video, an

undercover police officer ordered pornographic tapes starring an underage

actress from a video company. Id. at 66–67, 115 S. Ct. at 466. The company

and its owner were indicted under a federal statute that criminalized the knowing

receipt and transportation of child pornography. Id. The Supreme Court held

that the term “knowingly” in the statute modified the phrase “the use of a minor”

and required not only a knowing distribution of the pornographic material, but

also knowledge of the performer’s age. Id. at 71–83, 115 S. Ct. at 469–74. The

X–Citement Video Court, however, also recognized that traditionally

            the presumption [of mens rea] expressly excepted “sex
      offenses, such as rape, in which the victim’s actual age was
      determinative despite defendant’s reasonable belief that the girl had
      reached age of consent.” . . . [because] the perpetrator confronts
      the underage victim personally and may reasonably be required to
      ascertain that victim’s age. The opportunity for reasonable mistake
      as to age increases significantly once the victim is reduced to a
      visual depiction, unavailable for questioning by the distributor or
      receiver. Id. at 71–72 n.2, 115 S. Ct. at 469 n.2 (citations omitted).

Thus, X–Citement Video involves situations in which people usually would not

confront the performer depicted in the material. Id. at 71–83, 115 S. Ct. at 469–

74.   Fleming, however, personally confronted the underage victim and could




                                       11
have learned her true age. Therefore, X–Citement Video is distinguishable from

this case and does not suggest that the rights Fleming claims are fundamental.

      Even if we were to assume Fleming’s argument that statutory rape

schemes that do not require a mens rea or disallow a mistake-of-age defense are

statutory schemes that came into existence after the codification of both state

and federal due process provisions, this position would not undermine section

22.021. An examination of current statutory rape schemes that recognize the

exception to the requirement of criminal intent and the well-accepted legislative

purpose for omitting scienter undermine Fleming’s argument that section 22.021

offends principles of justice deeply rooted in our nation’s history and traditions.

See United States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991), cert. denied,

502 U.S. 1042 (1992) (recognizing that the majority rule in the United States is

that knowledge of age is not an essential element of statutory rape and this

exclusion does not violate due process);5 see also 65 Am. Jur. 2d Rape § 81

(2011) (“Generally, in the absence of statute, the defendant’s knowledge of the

age of the female is not an essential element of the crime of statutory rape, and

therefore, it is no defense that the accused reasonably believed that the

prosecutrix was of the age of consent.”).

      5
       In his supplemental briefing on remand, Fleming contends that this court’s
previous opinion erroneously relied on Ransom in initially rejecting his
contentions. This court correctly cited Ransom in its original opinion and does
again in this opinion. See Ransom, 942 F.2d at 776–77. In fact, the proposition
of law cited by this court that Fleming complains of is almost verbatim from
Ransom. Id.


                                        12
      We acknowledge that there has been movement away from strict liability

for statutory rape in recent years. See, e.g., People v. Hernandez, 61 Cal. 2d

529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964) (apparently the first case to allow a

mistake-of-age defense; ruling on lenity grounds); see also Perez v. State, 111

N.M. 160, 803 P.2d 249, 250–51 (1990) (“While a child under the age of thirteen

requires the protection of strict liability, the same is not true of victims thirteen to

sixteen years of age. We recognize the increased maturity and independence of

today’s teenagers and, while we do not hold that knowledge of the victim’s age is

an element of the offense, we do hold that under the facts of this case the

defendant should have been allowed to present his defense of mistake of fact.”).

A minority of states allow some form of a “mistake of age” defense by judicial

decision or by statute. See Collins v. State, 691 So. 2d 918, 923 (Miss. 1997);

State v. Guest, 583 P.2d 836, 837–39 (Alaska 1978) (due process requires that

the defendant be allowed to introduce evidence regarding mistake as to age);

Model Penal Code § 213.6(1) (Official Draft & Revised Comments 1985). Under

the Model Penal Code, for example, the defense of mistaken belief should be

available when the critical age is more than ten years of age. Model Penal Code

§ 213.6, cmt. 2 at 415. The theory is that the policies underpinning strict liability

seem less compelling as the age of the minor increases; an accused who

mistakenly but reasonably believes such a partner is above the critical age

should have a defense because he “evidences no abnormality, no willingness to

take advantage of immaturity, no propensity to corruption of minors.” Id. Thus,


                                          13
ironically to Fleming’s arguments, it may be the future, and not the past, that

determines that strict liability in statutory rape cases ultimately offends concepts

of ordered liberty. But see Kelley v. State, 187 N.W.2d 810, 815 (Wis. 1971)

(specifically rejecting model penal code’s mistake-of-age defense to statutory

rape).

         It is worthy of note that many of the cases upholding the constitutionality of

statutory rape involve an adult’s sexual contact with a person younger than that

described in section 22.021. See, e.g., Wis. Stat. Ann. § 948.02(1)(b) (“Whoever

has sexual intercourse with a person who has not attained the age of 12 years is

guilty of a Class B felony”). But the majority rule in the United States is that the

defendant’s knowledge of the victim’s age is not an essential element of statutory

rape and that this exclusion does not violate due process. See Ransom, 942

F.2d at 776–77; State v. Granier, 765 So. 2d 998, 1001 (La. 2000); Owens v.

State, 724 A.2d 43, 48–49 (Md.), cert. denied, 527 U.S. 1012 (1999); State v.

Yanez, 716 A.2d 759, 767 (R.I. 1998); State v. Stokely, 842 S.W.2d 77, 80–81

(Mo. 1992); State v. Campbell, 473 N.W.2d 420, 425 (Neb. 1991); People v.

Cash, 351 N.W.2d 822, 828 (Mich. 1984); Commonwealth v. Miller, 432 N.E.2d

463, 466 (Mass. 1982); State v. Tague, 310 N.W.2d 209, 212 (Iowa 1981);

Goodrow v. Perrin, 403 A.2d 864, 866–68 (N.H. 1979); State v. Martinez, 14 P.3d

114, 116–117 (Utah App. 2000).

         Although the court of criminal appeals has never considered whether

section 22.021 violates due process, the court of criminal appeals has


                                           14
determined that the lack of a mens rea component in section 22.021’s statutory

predecessor did not violate equal protection of the law. Ex parte Groves, 571

S.W.2d 888, 890 (Tex. Crim. App. 1978). Our sister court in Houston, however,

addressed the very issue before us and held that section 22.021’s predecessor

did not violate due process. Scott v. State, 36 S.W.3d 240, 242 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref’d). With these decisions and the backdrop of

the majority rule in this nation regarding statutory rape in mind, we conclude that

there is no fundamental right that a State is required to include a mens rea

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

section 22.021 needs only to serve a legitimate state purpose to be constitutional

against the backdrop of substantive due process. Flores, 507 U.S. at 306, 113

S. Ct. at 1449. We conclude that it does.

      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. See Ransom, 942 F.2d at 777; see also Byrne v.

State, 358 S.W.3d 745, 750 (Tex. App.—San Antonio 2011, no pet.) (“Strict

liability sex crimes are a valid exercise of the state’s authority and rationally

support a legitimate state interest.”).

      Although sound reasons might be advanced on either side of the argument

of whether a mens rea component should exist or whether a mistake-of-age

defense should exist in section 22.021, determining the line that separates what

is criminal from what is not lies peculiarly within the sphere of legislative


                                          15
discretion—especially, as here, where no fundamental right is at question. See

Lambert, 355 U.S. at 228, 78 S. Ct. at 242. We have no authority to substitute

our judgment for that of the legislature unless we find the classification to be

arbitrary, capricious, and without reasonable relationship to the purposes of the

statute. See Ransom, 942 F.2d at 777. We conclude that section 22.021 is

neither arbitrary nor capricious and that it furthers the legitimate government

interest of protecting children. See Flores, 507 U.S. at 305–06, 113 S. Ct. at

1448–49 (reasoning that states have a legitimate purpose concerning welfare of

minors); Scott, 36 S.W.3d at 242 (holding that Texas’s statutory rape statute

does not violate due process and furthers legitimate interest in protecting the

health and safety of children). Thus, section 22.021’s omission of a mens rea

component or its lack of a mistake-in-fact defense does not offend notions of Due

Process or due course of law. We overrule each of Fleming’s four points.

                                III. CONCLUSION

      Having overruled all of Fleming’s points on appeal, we affirm the trial

court’s judgment.



                                                  BILL MEIER
                                                  JUSTICE

PANEL: GARDNER and MEIER, JJ.; and WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).

PUBLISH

DELIVERED: August 2, 2012


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