                                       In The

                                  Court of Appeals

                         Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-14-00414-CR
                               NO. 09-14-00415-CR
                               NO. 09-14-00416-CR
                               NO. 09-14-00417-CR
                               NO. 09-14-00418-CR
                              ____________________

                  CHRISTOPHER LEE SUTTON, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
____________________________________________________________________

                On Appeal from the 359th District Court
                      Montgomery County, Texas
              Trial Cause No. 13-02-01974 CR (Counts I-V)
____________________________________________________________________

                                     OPINION

      A jury convicted Christopher Lee Sutton of five counts of improper

relationship between educator and student. In two appellate issues, Sutton

challenges the legal sufficiency of the evidence and the constitutionality of section

21.12 of the Texas Penal Code. We reverse the trial court’s judgment and render a

judgment of acquittal.

                                          1
                                 Legal Sufficiency

      In issue one, Sutton contends that the evidence is legally insufficient to

support his conviction for improper relationship between educator and student.

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. Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). We give deference to the jury’s responsibility to fairly resolve

conflicting testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.

      A school employee commits an offense when he “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[.]”

Tex. Penal Code Ann. § 21.12(a)(1) (West Supp. 2014) (emphasis added). “The

prohibitions of section 21.12 are clear and unequivocal: if you are an employee of

a Texas public or private primary or secondary school, you must not engage in

sexual conduct with students who are enrolled at a school where you work[.]” Ex

parte Morales, 212 S.W.3d 483, 499 (Tex. App.—Austin 2006, pet. ref’d).

Teachers and other school employees “occupy positions of public trust with respect

                                         2
to the students enrolled at their school.” Id. at 497. Section 21.12 is “limited

specifically to employee sexual conduct with students enrolled at the same school

where the employee works, a class of persons uniquely within the proximity and

influence of the employee.” Id. at 496. The indictment in this case alleged that

Sutton was an employee of Caney Creek High School when he engaged in sexual

contact or deviant sexual intercourse with G.T., a person enrolled at Caney Creek.

On appeal, however, Sutton, contends that he was employed by Conroe

Independent School District (“C.I.S.D.”) Police Department, and not Caney Creek,

and that he never worked at Caney Creek.

       According to the evidence presented at trial, Sutton was employed by

C.I.S.D. Police Department. G.T. testified that, two weeks before his eighteenth

birthday, he began having a sexual relationship with Sutton. G.T.’s mother testified

that Sutton admitted to her that he had a sexual relationship with G.T. William

Harness, the Chief of Police for C.I.S.D. Police Department, testified that Sutton

contacted him and admitted having an inappropriate relationship with G.T. while

G.T. was a student at Caney Creek.

      Carrie Galatas, the custodian of records for C.I.S.D., testified that Sutton

was employed by C.I.S.D., but was not an employee of Caney Creek. G.T. testified

that Sutton sometimes picked him up at the high school when Sutton was off duty,

                                         3
although Sutton may have been on call. G.T. testified that Sutton did not work for

Caney Creek and he never saw Sutton working at the high school. Galatas

explained that the school district is divided into five feeder systems and a sergeant

is in charge of each feeder. Sutton was assigned to The Woodlands feeder system

and was not assigned to either Caney Creek or to the feeder system in which Caney

Creek was located. All sergeants, including Sutton, office at the C.I.S.D. Police

Department command center. Harness explained that sergeants were not bound to

their assigned feeder, but were expected to respond to other feeders if needed,

served as after hours and weekend on-call sergeant on a rotating basis, and had

“overlapping responsibilities.”

      Harness testified that Sutton owed a duty to all the schools within C.I.S.D.

Mary Bice, an officer with the C.I.S.D. Police Department, testified that she

considers herself to be an employee of C.I.S.D., but that she has a duty to all

students in the district. Harness explained that the supervising sergeants, like

Sutton, were responsible for assisting officers outside their assigned feeders and

that there must have been a time when Sutton worked at one of the Caney Creek

campuses. He testified that Sutton must have gone to Caney Creek High School

because Sutton mentored Kimberly Grimes, the sergeant assigned to the Caney

Creek feeder. According to Harness, Sutton sometimes had to cover for Grimes.

                                         4
Harness and Bice testified that Sutton also supervised various school programs

made available to students in the district, including G.T. who joined these

programs. Bice testified that during a trip for one of the programs, G.T. stayed in

Sutton’s hotel room.

      On appeal, the State contends that the evidence supports Sutton’s conviction

because Sutton’s duties extended to Caney Creek, Sutton was involved in student

programs in which G.T. participated, Sutton was present at Caney Creek to pick up

G.T. and to meet with Grimes or cover for Grimes, and Harness testified that

Sutton must have worked at one of the Caney Creek campuses at some point.

However, based on the statute’s plain language, section 21.12(a)(1) is limited to an

employee’s sexual conduct with a student enrolled at the school where the

employee works. See Tex. Penal Code Ann. § 21.12(a)(1); see also Morales, 212

S.W.3d at 499. The record demonstrates that Sutton was an employee of C.I.S.D.

Police Department. It is undisputed that the CISD Police Department offices are

not located at Caney Creek. Although the jury may draw reasonable conclusions

and inferences from the evidence, the record does not contain legally sufficient

evidence to allow the jury to reasonably conclude that Sutton worked at Caney

Creek High School.




                                         5
      Further, the Legislature added a class of school district employees who

would be in violation of this statute regardless of whether or not they worked at the

school where the student was enrolled. Tex. Penal Code Ann. § 21.12(a)(2). The

State did not charge Sutton under this portion of the statute, because the Legislaure

did not include police officers in this class. Accordingly, we conclude that the

evidence is legally insufficient to support Sutton’s conviction for improper

relationship between educator and student. See Jackson, 443 U.S. at 318-19; see

also Hooper, 214 S.W.3d at 13. Because no other offense was charged, we need

not determine whether another offense was proved. See Pokladnik v. State, 876

S.W.2d 525, 527 (Tex. App.—Dallas 1994, no pet.). We sustain issue one and need

not address issue two. See Tex. R. App. P. 47.1. We reverse the trial court’s

judgment and render a judgment of acquittal.

      REVERSED AND RENDERED.



                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

Submitted on May 7, 2015
Opinion Delivered July 15, 2015
Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

                                          6
                             DISSENTING OPINION

      The majority opinion concludes that “the record does not contain legally

sufficient evidence to allow the jury to reasonably conclude that Sutton worked at

Caney Creek High School . . . ,” and that the evidence is legally insufficient to

support Sutton’s conviction. I must respectfully disagree.

      Based on the record, I conclude that the evidence is legally sufficient to

support Sutton’s conviction for engaging in an offense as described in section

21.12(a)(1) of the Penal Code. See Tex. Penal Code Ann. § 21.12(a)(1) (West

Supp. 2014). The jury could have drawn reasonable conclusions and inferences

from the evidence to reasonably conclude beyond a reasonable doubt that Sutton’s

work as a Sergeant with the Conroe Independent School District (C.I.S.D.) police

department extended to Caney Creek High School, even though his physical office

may have been located elsewhere in the district.

      Sutton initially argues on appeal that section 21.12(a)(1) does not apply to

him because he was not an “employee” of the school where the student was

enrolled.1 The majority does not specifically address this argument presumably

because it concludes the evidence is legally insufficient for the jury to reasonably
      1
       Sutton does not dispute the fact that he had a sexual relationship with G.T.
while G.T. was enrolled as a student at Caney Creek High School, a school that is
within the jurisdiction of the C.I.S.D.

                                         1
conclude that Sutton worked at Caney Creek High School. Section 21.12(a)(1)

prohibits an “employee of a public or private primary or secondary school” from

engaging in sexual contact, sexual intercourse, or deviate sexual intercourse with a

person enrolled in a school at which the employee works. Section 21.12(a)(1) does

not define the word “employee.” The legislature expressly states that the statutory

provision in question applies to an “employee of a public or private” school. Sutton

concedes on appeal that he “was officially employed by CISD not by any particular

school,” and he agrees that all other public school employees in Texas would be

employed by school districts and not individual schools. Because public school

employees are employees of the particular school districts where they work, in

order for subpart (a)(1) of the statute to mean what it says, i.e., that it applies to an

employee of a public school, the statute must also necessarily include employees of

public school districts.

      Undefined terms in a statute are typically given their ordinary meaning,

unless a different definition is apparent from the term’s use in the context of the

statute. See Tex. Gov’t Code Ann. § 311.011 (West 2013); In re Shaw, 204 S.W.3d

9, 16 (Tex. App.—Texarkana 2006, pet. ref’d). Jurors may ‘“freely read

[undefined] statutory language to have any meaning which is acceptable in

common parlance.’” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012)

                                           2
(alteration in original) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim.

App. 1995)). While we apply the “plain language” of a statute, we must examine

the context within which the words are used. When construing a statute, our

primary objective is to ascertain and give effect to the legislature’s intent. Tex.

Gov’t Code Ann. § 312.005 (West 2013). We may consider how a particular

interpretation would lead to consequences that the legislature in the context in

question could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785

(Tex. Crim. App. 1991).

      It is apparent from the term “employee” as used in the context of the statute

in question, that the legislature intended section 21.12(a)(1) to govern public

school employees. To read the word “employee” as requiring the State to prove

that the “employee” was officially employed by a school, rather than the school

district where the employee works, would be directly contrary to the inclusion of

“public schools” within subpart (a)(1), and it would mean that subpart (a)(1) would

never apply to any teachers, educators, or other employees who work in any of the

hundreds of public schools and school districts across the State of Texas, because

they are officially employed by the school districts rather than the schools where

they work. Therefore, I conclude that section 21.12(a)(1) applies to Sutton, a

public school employee who was officially employed by the school district. See

                                         3
Tex. Penal Code Ann. § 21.12(a)(1); see generally Ex parte Guerrero, No. 05-06-

01316-CR, 2006 Tex. App. LEXIS10780, at *8 (Tex. App.—Dallas Dec. 19, 2006,

pet. ref’d) (not designated for publication) (Section 21.12 is not impermissibly

vague for failing to define “employee” or “student” and the words are given their

plain, ordinary meaning).

      Sutton also argues that the evidence is legally insufficient for the jury to

reasonably conclude that he worked at Caney Creek High School. When assessing

the legal sufficiency of the evidence to support a criminal conviction, we consider

all the evidence in the light most favorable to the verdict and determine based on

that evidence and reasonable inferences therefrom, whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). We must give deference to the jury’s responsibility to

fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.

      It is undisputed on appeal that at the time of the offenses in question that

Sutton was a Sergeant with the C.I.S.D. police department. According to the Chief

of the C.I.S.D. police department, Sergeants in the C.I.S.D.’s police department

work on a district-wide basis at the schools within the district. Sutton worked with

                                         4
G.T.’s mother at the C.I.S.D. police department, and Sutton was a like a “mentor”

to G.T. In August of 2012, when G.T. was seventeen and enrolled as a student at

Caney Creek High School, Sutton contacted G.T. on a mobile phone messaging

service. 2 At first, G.T. did not know the person that had initiated the contact was

Sutton, but Sutton could see a picture of G.T. that G.T. had posted on the mobile

messaging site. Through the use of “the guessing game,” G.T. confirmed that the

person who contacted G.T. was Sutton, and later that same month Sutton and G.T.

began to meet for sexual encounters.

      Q. [State’s Counsel]: Okay. And how would this work? I mean, what
      would he -- how would you get together?
      A. [G.T.]: I would ask my mom if Chris could take me home because --
      I mean, he just happened to be around the area and she would just say,
      yeah. You know . . .
      Q. Okay.
      A. He could take me home.
      Q. Take you home from school?
      A. From school. G.T. testified that Sutton picked G.T. up from school

      while Sutton was using a C.I.S.D. vehicle and while Sutton was in

      uniform, that Sutton drove G.T. home, and that Sutton had sexual

      contact with G.T. 3

      2
        G.T. described the mobile phone messaging service as an application for
cell phones for people “who are looking either to date someone, hook up with
someone or you know be friends.”
      3
        G.T. testified about the sexual encounters with Sutton. G.T. also recalled an
occasion when G.T. and Sutton went on a “school trip” to San Antonio for Kid
                                         5
      The jury could have reasonably concluded from the evidence that Sutton, as

a Sergeant with the C.I.S.D. police department, held a position of authority over

students in the School District, including students at Caney Creek High School.

Sutton was personally involved with two district-wide C.I.S.D. extracurricular

programs and he worked with G.T. and other students in those programs. Sutton

was the coordinator-in-charge of Kid Chat, a crime stoppers program in which

Sutton worked with G.T. and other students from across the district to provide

rewards for tips provided by students regarding criminal activity on school

campuses:

      Q. [State’s Counsel]: . . . Can you tell us a little bit about what Kid
      Chat is?
      A. [G.T.]: Yes. It is an organization where kids in the school district
      meet and we get these -- I guess, what they’re called is bids. And
      where -- I guess, Chris [Sutton] came to us with these bids. And it’s
      usually kids -- anonymous kids calling in about, you know, either
      drugs they’ve seen in school and drugs being sold in school or other
      things that are happening in school that can be, I guess, rewarded with
      money because it will help the police department find these people
      and stop whatever is happening. I guess, the drugs or you know
      whatever -- whatever other illegal acts are happening.
      Q. So, it’s kind of a tip line?
      A. Yes.
      Q. Student [sic] would come with information?
      A. Yes.
      Q. And who was in charge of Kid Chat? Who ran it?

Chat, and G.T. stayed in a hotel room with Sutton. G.T. denied that any sexual
activity occurred during that trip.

                                        6
      A. Chris [Sutton].
      Q. All right. So, would students from Caney Creek be involved with
      that?
      A. Yes. Students from all around the school district.

Sutton was also involved with the Junior Leadership Program comprised of high

school students identified as “Junior Leaders.” While G.T. was enrolled at Caney

Creek High School, G.T. was a participant in both programs.

      G.T.’s mother learned about Sutton’s relationship with G.T. from G.T.’s

boyfriend, who had discovered old messages from Sutton on G.T.’s cell phone.

Exhibits depicting certain cell phone records and several text messages were

introduced into evidence without any objection from Sutton. According to a text

message dated February 14, 2013, G.T.’s boyfriend sent G.T.’s mother a text

stating that G.T. “had an affair with Chris Sutton during [G.T.’s] High[]School

years. And again on February 8th. Check [G.T.’s] IPod when [G.T.] gets home.

I’m done with [G.T.].” A series of text messages followed, and on February 15,

2013, G.T.’s boyfriend sent another message to G.T’s mother stating that Sutton

was “at Caney Creek” when the boyfriend dropped G.T. off at school.

      G.T.’s mother confronted Sutton about the allegations. Sutton admitted to

G.T.’s mother that Sutton had an “inappropriate relationship” and that he was

“sexually active” with G.T. G.T.’s mother met with Sutton and with Sutton’s wife

to discuss the matter further. G.T.’s mother testified that she believed the
                                        7
relationship between Sutton and G.T. was against the law because at the time G.T.

was still a student and Sutton was an employee of C.I.S.D. Sutton resigned from

the C.I.S.D. police department. Chief Harness, the Chief over the C.I.S.D. police

department, testified that when Sutton resigned from the police department, Sutton

expressed that his primary concerns were for his family and “staying out of

prison.”

       Harness further explained to the jury that the C.I.S.D. police patrolled and

responded to calls across the entire school district. Harness testified that Sergeants

had “overlapping responsibilities,” and the Sergeants were always “on-call.”

Harness described the C.I.S.D. police department as a “24/7” operation; the

officers work during school hours, as well as during nights and weekends, across

the entire district.

       Q. [State’s counsel]: And they would be expected to respond to the
       entire district?
       A. [Harness]: Yes, ma’am.
       Q. So, do your sergeants have the duty only to their feeder zone?
       A. No, ma’am.
       Q. Okay. Do your sergeants have a duty to all of the schools in the
       Conroe Independent School District?
       A. Yes, ma’am.

Although on paper Sutton was assigned to the Woodlands Feeder Zone and he was

not assigned directly to Caney Creek High School, the Chief stated specifically that

he knew Sutton’s work included coverage at Caney Creek High School.
                                          8
      Q. [State’s Attorney]: Did the defendant ever go to Caney Creek High
      School?
      A. [Chief Harness]: Yes, I know he did.
      Q. Okay. And how do you know that?
      A. There’s assignments to Caney Creek High School. The sergeant
      that was assigned there, he mentored --
      Q. And who was the --
      A. It was Sergeant Grimes.
      Q. Okay. And can you say her full name?
      A. Kimberly Grimes.
      Q. And the defendant mentored Kimberly Grimes?
      A. Yes.
      Q. And --
      A. All the sergeants would be expected to go assist another sergeant.
      Q. Okay. Now, I want to back up. Sergeant Kimberly Grimes[,] she
      was the sergeant that was in charge of what feeder?
      A. At that particular time, Caney Creek.
      Q. Okay. And the Caney Creek feeder would include Caney Creek
      High School?
      A. Yes, ma’am.
      Q. Now, to your knowledge, did the defendant and Sergeant Grimes
      have a personal relationship?
      A. Yes.
      Q. Okay. And did the defendant have to cover for Sergeant Kim
      Grimes on more than one occasion?
      A. Yes.

      In a jury trial, the jury is the exclusive authority on the credibility of the

witnesses and the weight to be given their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give deference to the

jury’s responsibility to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13. A rational trier of fact could have drawn reasonable inferences from
                                         9
the evidence that Sutton worked on a district-wide basis, and that from time to

time, he also worked at Caney Creek High School. Considering all of the evidence

in a light most favorable to the jury verdict, a rational jury applying the common,

ordinary meaning of the undefined terms in section 21.12(a)(1) could conclude,

beyond a reasonable doubt, that Sutton was guilty of engaging in an improper

relationship as charged in the indictment. Accordingly, I would conclude that the

evidence is legally sufficient to support Sutton’s conviction.

      In Sutton’s appellate brief, Sutton also challenges the constitutionality of

section 21.12(a)(1), arguing that the statute is unconstitutionally vague as applied

to him because he “was not put on notice that his actions were proscribed by this

section of the penal code.” Because I conclude the evidence is legally sufficient to

support the jury’s verdict of guilt, I also briefly address Sutton’s constitutional

challenge.

      As a general rule, constitutional challenges to a statute are forfeited by the

failure to object at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.

2004); Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995). Issues of

procedural default, such as preservation of error, are systemic and must be

reviewed by the courts of appeals, even when the issue is not raised by the parties.

Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014). To preserve

                                          10
error for review, Sutton had to challenge the constitutionality of section 21.12(a)(1)

as applied to him in the trial court. See Karenev v. State, 281 S.W.3d 428, 434

(Tex. Crim. App. 2009) (facial challenge); Curry, 910 S.W.2d at 496 (as-applied

challenge); cf., Smith v. State, Nos. PD-1790-13, PD-1791-13, PD-1792-13, & PD-

1793-13, 2015 Tex. Crim. App. LEXIS 707 (Tex. Crim. App. June 24, 2015)

(wherein the plurality allowed the appellant to challenge for the first time on

appeal in a petition for discretionary review the facial constitutionality of his

conviction under Section 33.021(b) because that section of the statute has been

declared facially unconstitutional.). No court has declared section 21.12(a)(1)

facially unconstitutional, and the record shows that Sutton did not make an “as

applied” constitutional challenge to the statute in the trial court. Accordingly,

Sutton did not preserve his constitutional challenge for our review, and therefore I

would also overrule his second issue.4

      4
        With respect to Sutton’s statement that he “could not be put on notice that
his conduct was unlawful,” it is not a defense to prosecution that the actor was
ignorant of the provisions of any law after it has taken effect. Tex. Pen. Code § 8.03(a)
(West 2011). Notably, uncontested evidence presented at trial established that
Sutton received a copy of the C.I.S.D. employee handbook. The custodian for the
school district testified that the handbook contained a written rule that prohibited
all school district employees from having any kind of dating or sexual relationship
with any students. Therefore, presumably Sutton knew his relationship was
expressly prohibited by his employer. Moreover, when Sutton was first confronted
about the affair, Sutton admitted to G.T.’s mother that he had an “inappropriate
relationship” with G.T., and he then stated to Chief Harness that his primary
                                           11
      Accordingly, I would affirm.



                                                   _________________________
                                                        LEANNE JOHNSON
                                                             Justice

Dissent Delivered
Date July 15, 2015




concerns were for his family and “staying out of prison.” Such statements could by
implication indicate that Sutton knew his relationship was also in violation of the
criminal law. Finally, simply because section 21.12(a)(1) fails to define the word
“employee” does not render section 21.12(a)(1) unconstitutionally vague or
otherwise fail to put Sutton on notice that his conduct was unlawful. Bynum v.
State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989); Guerrero, 2006 Tex. App.
LEXIS 3718339, at *8.

                                        12
