           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                          NO. PD-1051-15

                                     THE STATE OF TEXAS

                                                  v.

                           CHRISTOPHER LEE SUTTON, Appellant

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE NINTH COURT OF APPEALS
                             MONTGOMERY COUNTY



R ICHARDSON, J., delivered the opinion for a unanimous Court.


                                           OPINION

       Appellant, Christopher Lee Sutton, was charged with having an improper relationship

between educator and student.1 The indictment alleged that appellant was an employee of

Caney Creek High School (CCHS) when he engaged in sexual contact or deviant sexual

intercourse with G.T., a person enrolled at CCHS. Appellant was convicted on all five



       1
         T EX. P ENAL C ODE § 21.12(a)(1) provides that (a) An employee of a public or private primary
or secondary school commits an offense if the employee . . . (1) engages in sexual contact, sexual
intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary
or secondary school at which the employee works[.]”
                                                                               Christopher Sutton — 2

counts and received a ten year probated sentence on each count. The Ninth Court of Appeals

reversed appellant’s convictions, holding that the record does not contain legally sufficient

evidence to allow the jury to reasonably conclude that appellant worked at Caney Creek High

School.2 We granted the State’s petition for discretionary review to examine this holding.3

We affirm.

       Two parts of Section 21.12(a)(1) implicated by appellant’s sufficiency claim on direct

appeal were: whether appellant was “an employee of a public or private primary or secondary

school,” and whether appellant “work[ed] at” a public or private primary or secondary school

where the complainant was enrolled. Thus, the questions for purposes of appellant’s

sufficiency claim were, (1) was appellant an employee of CCHS, and (2) did he “work at”

CCHS.




       2
           Sutton v. State, 469 S.W.3d 607, 610 (Tex. App.—Beaumont 2015).
       3
           We granted the State’s petition for discretionary review to address the following two grounds:

       1.        The Ninth Court of Appeals, in a 2-1 decision, incorrectly interpreted section 21.12(a)
                 of the Penal Code to require the accused to be an official employee of a particular
                 school, rather than the school district, to be considered an “employee of a public or
                 private primary or secondary school.”

       2.        The lower court abandoned the correct standard of review in holding that the jury
                 could not reasonably infer the appellant worked at a particular school where the
                 evidence showed he was required to supervise police activities at that school and he
                 was known to have been physically present on campus while exercising his
                 employment duties.
                                                                               Christopher Sutton — 3

        The court of appeals correctly cited to Jackson v. Virginia4 as the proper standard for

reviewing the legal sufficiency of the evidence.5 The evidence at trial showed that appellant

was employed by Conroe Independent School District (CISD) Police Department, not

CCHS.6        Several other witnesses at trial, including G.T., provided testimony supporting

appellant’s contention that he did not work for, or at, CCHS. Appellant was assigned to The

Woodlands feeder system. Appellant was not assigned to CCHS or to the feeder system in

which CCHS was located. Appellant officed at the CISD Police Department command

center, not at CCHS.

        The State argues that, although Section 21.12(a)(1) does not state that it applies to a

school district employee—which appellant was—it is clear that was the intent of the

Legislature. While it is true that employees of a school are generally also considered to be

employees of the school district overseeing that school, the inverse may or may not be true,

depending on the facts of the case. We are not persuaded that the Legislature intended

section 21.12(a)(1) to apply to appellant under this set of facts. Had he been assigned to

CCHS or to its feeder system, his status as an employee of the school would have been a

closer call. But, as an employee of the CISD Police Department, assigned to a feeder system



        4
            443 U.S. 307, 318-19 (1979).
       5
          Sutton, 469 S.W.3d at 608 (“Under a legal sufficiency standard, we assess all the evidence
in the light most favorable to the prosecution to determine whether any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt.”). See also Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
       6
        The custodian of records for CISD testified that appellant was an employee of CISD, and was
not an employee of CCHS.
                                                                                Christopher Sutton — 4

that did not encompass CCHS, we conclude that the evidence was legally insufficient to

support the jury’s verdict that appellant was an employee of CCHS.

       The State argues that the Legislature intended Section 21.12(a)(1) to apply to a broad

class of school employees and that appellant would be included in that group. However, this

argument ignores Section 21.12(a)(2), which expressly incorporates a specific list of school

district employees to which the statute applies.7 Significantly, police officers are not




       7
           T EX. P EN. C ODE § 21.12(a)(2) provides that

                 (a)     An employee of a public or private primary or secondary school commits an
                         offense if the employee . . .

                         (2)     holds a certificate or permit issued as provided by Subchapter B,
                                 Chapter 21, Education Code, or is a person who is required to be
                                 licensed by a state agency as provided by section 21.003(b), Education
                                 Code, and engages in sexual contact, sexual intercourse, or deviate
                                 sexual intercourse with a person the employee knows is:

                                 (A)     enrolled in a public primary or secondary school in the same
                                         school district as the school at which the employee works; or

                                 (B)     a student participant in an educational activity that is sponsored
                                         by a school district or a public or private primary or secondary
                                         school, if:

                                         (I)     students enrolled in a public or private primary or
                                                 secondary school are the primary participants in the
                                                 activity; and

                                         (ii)    the employee provides education services to those
                                                 participants; or

                         (3)     engages in conduct described by Section 33.021, with a person
                                 described by Subdivision (1), or a person the employee knows is a
                                 person described by subdivision (2)(A) or (B), regardless of the age of
                                 that person.
                                                                            Christopher Sutton — 5

included on that list.8 It is a general rule of statutory construction that the express mention

of one thing is tantamount to an exclusion of others.9 Section 21.12(a)(1) was clearly

intended to apply to school employees engaging in sexual activity with students enrolled at

the school where that employee works. Section 21.12(a)(2) was clearly intended to apply to

a broader, specific list of school district employees. Appellant does not fall within either

subsection. If the Legislature intended that police officers—such as appellant, under these

facts—be included among the school district employees listed in Section 21.12(a), it would

have specifically included them.

       The statute’s plain language limits the application of Section 21.12(a)(1) to an

employee’s sexual contact with a student enrolled at the school where the “employee works.”

As noted above, there was no evidence presented showing that appellant had ever worked

at CCHS.        There was evidence that CISD officers generally have “overlapping

responsibilities” to respond to all of the feeder systems throughout the school district, that

appellant was assigned to be the mentor for the sergeant assigned to the Caney Creek feeder,

that appellant supervised school district programs made available to students such as G.T.,

and that appellant would occasionally pick G.T. up after school when he was off duty.




       8
         Section 21.003(b) of the Education Code includes the following school district employees
who are required to obtain certification: audiologist, occupational therapist, physical therapist,
physician, nurse, school psychologist, associate school psychologist, licensed professional counselor,
marriage and family therapist, social worker, and speech language pathologist.
       9
           Ex parte McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. 1979).
                                                                      Christopher Sutton — 6


       Justice Leanne Johnson points out in her dissenting opinion that Chief Harness, the

Chief over the C.I.S.D. Police Department, testified that appellant’s work included coverage

at CCHS because he was assigned to mentor the Sergeant assigned to CCHS.10 However,

we conclude that this evidence would not support a reasonable inference that appellant

worked at CCHS. Appellant’s connection to CCHS was too tenuous to reasonably support

the jury’s finding that he worked at CCHS. We agree with the court of appeals that the

record does not contain legally sufficient evidence to allow the jury to reasonably conclude

that appellant worked at CCHS.

       Although the court of appeals failed to expressly distinguish and separately address

the two elements required to support a conviction under section 21.12(a)(1), we find that the

court’s holding sufficiently encompassed both issues. We agree with the court of appeals’s

conclusion that “[t]he record demonstrates that [appellant] was an employee of CISD Police

Department” and “the record does not contain legally sufficient evidence to allow the jury

to reasonably conclude that [appellant] worked at Caney Creek High School.” We affirm the

judgment of the Ninth Court of Appeals.




DELIVERED:               September 14, 2016

PUBLISH




       10
            Sutton, 469 S.W.3d at 613 (Johnson, J., dissenting).
