                                                                                PD-1051-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 9/9/2015 3:15:04 PM
                                                               Accepted 9/14/2015 11:40:23 AM
                                                                                ABEL ACOSTA
                         NO. PD-1051-15                                                 CLERK

              IN THE COURT OF CRIMINAL APPEALS
                   FOR THE STATE OF TEXAS


           NOS. 09-14-00414-CR, 09-14-00415-CR,
     09-14-00416-CR, 09-14-00417-CR & 09-14-00418-CR

          ON APPEAL FROM THE COURT OF APPEALS FOR
          THE NINTH DISTRICT OF TEXAS AT BEAUMONT


               CHRISTOPHER LEE SUTTON

                                 v.

                     THE STATE OF TEXAS


                            Arising from:

                 Cause No. 13-02-01974 (Counts I-V)
                   IN THE 359TH DISTRICT COURT,
                   MONTGOMERY COUNTY, TEXAS



   STATE’S PETITION FOR DISCRETIONARY REVIEW


                                            BRETT W. LIGON
                                            District Attorney
                                            Montgomery County, Texas

                                            BRENT CHAPELL
                                            Assistant District Attorney
September 14, 2015                          Montgomery County, Texas
                                            T.B.C. No. 24087284
                                            207 W. Phillips, Second Floor
                                            Conroe, Texas 77301
                                            936-539-7800
                                            936-788-8395 (FAX)

                     Oral Argument Requested
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL
      Pursuant to Tex. R. App. P. 68.4, the State hereby lists all parties to this

appeal with the names of all trial and appellate counsel:


Presiding judge in the trial court:                 THE HONORABLE
                                                    KATHLEEN HAMILTON
                                                    359th District Court
                                                    Montgomery County, Texas

District Attorney:                                  BRETT W. LIGON
                                                    District Attorney
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301

Counsel for the State in the trial court:           JEFF HOHL
                                                    TIANA SANFORD
                                                    Assistant District Attorneys
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301

Counsel for the State in the appellate courts:      BRENT CHAPELL
                                                    Assistant District Attorney
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301

Counsel for the appellant in the trial court:       BILL PATILLO
                                                    430 N. Main Street
                                                    Conroe, Texas 77301

Counsel for the appellant in the
appellate courts:                                   CHRIS ALLEN
                                                    430 N. Main Street
                                                    Conroe, Texas 77301


                                            ii
                                     TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL............................................. ii
TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT .................................................1
STATEMENT OF PROCEDURAL HISTORY .........................................................1
STATEMENT OF THE CASE...................................................................................2

GROUNDS FOR REVIEW .......................................................................................3
   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.” .............................................3

   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. ..................................................................3

SUMMARY OF THE STATE’S ARGUMENT.........................................................3

ARGUMENTS AND AUTHORITIES ......................................................................4

CONCLUSION AND PRAYER ..............................................................................15

CERTIFICATE OF COMPLIANCE WITH RULE 9.4...........................................16

CERTIFICATE OF SERVICE .................................................................................16




                                                      iii
                                 INDEX OF AUTHORITIES

Cases
Boykin v. State,
  818 S.W.2d 782 (Tex. Crim. App. 1991) ...............................................................6

Ex parte Morales,
  212 S.W.3d 483 (Tex. App.—Austin 2006, pet. ref’d) ........................................ 11

Kirsch v. State,
  357 S.W.3d 645 (Tex. Crim. App. 2012) ...............................................................6

Murray v. State,
 457 S.W.3d 446 (Tex. Crim. App. 2015) .............................................................10

Sutton v. State,
  Nos. 09-14-00414-CR through 09-14-00418-CR,
  2015 WL 4311170 (Tex. App.—Beaumont July 15, 2015, no pet. h.) ........ passim

Statutes
Tex. Gov’t Code Ann. § 311.011 (West 2013) ...........................................................6
Tex. Gov’t Code Ann. § 312.005 (West 2013)...........................................................6
Tex. Penal Code Ann. § 21.12 (West Supp. 2014).......................................... 1, 5, 10




                                                  iv
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

                STATEMENT REGARDING ORAL ARGUMENT
      Oral argument would be beneficial because this case requires substantial

discussion of the record that can best be addressed by counsel at oral argument.

                   STATEMENT OF PROCEDURAL HISTORY
      The appellant was charged with five counts of the felony offense of

improper relationship between educator and student 1 (C.R. 32). He entered a plea

of not guilty, but the jury found him guilty in all five counts and assessed his

punishment in each count at imprisonment for ten years, probated for a period of

ten years (5 R.R. 33; 7 R.R. 147).

      The appellant appealed his conviction and sentence. The Ninth Court of

Appeals, in a 2-1 decision, reversed the trial court’s judgment in a published

opinion authored by Chief Justice Steve McKeithen on July 15, 2015, and rendered

a judgment of acquittal in all five counts. See Sutton v. State, Nos. 09-14-00414-

CR through 09-14-00418-CR, 2015 WL 4311170, at *2 (Tex. App.—Beaumont

July 15, 2015, no pet. h.) (not yet published). Justice Leanne Johnson authored the

dissenting opinion.2 See id. at *2–6 (Johnson, J., dissenting). The State did not file

a motion for rehearing.


      1
          See Tex. Penal Code Ann. § 21.12(a)(1) (West Supp. 2014).
      2
          A copy of each opinion is attached to this petition as Appendix A.
                                           1
                          STATEMENT OF THE CASE
      The appellant, a Conroe Independent School District police sergeant, and

G.T., a student enrolled at Caney Creek High School within Conroe I.S.D.,

engaged in a sexual relationship over the course of a few months during G.T.’s

senior year (3 R.R. 22–27). On appeal, the appellant challenged the sufficiency of

the evidence to support his conviction. He conceded that he engaged in sexual

intercourse with G.T. and limited his complaint to the jury’s finding that the

appellant was an employee who worked at Caney Creek High School. The Ninth

Court of Appeals’ majority opinion sustained the appellant’s sufficiency complaint,

reasoning that the appellant did not office at Caney Creek High School and was

considered to be an employee of the Conroe I.S.D. Police Department. See Sutton,

2015 WL 4311170, at *2. Justice Johnson dissented, concluding that the appellant

was a school employee based on his employment by the district, and that the jury

could reasonably infer that the appellant worked at Caney Creek High School

while G.T. was enrolled there.3 See id. at *5 (Johnson, J., dissenting).




      3
        The dissenting opinion further addressed the appellant’s second issue—a
challenge that section 21.12(a) is unconstitutionally vague—and again rejected the
appellant’s claim. See Sutton, 2015 WL 2015 WL 4311170, at *6 (Johnson, J.,
dissenting).
                                         2
                           GROUNDS FOR REVIEW
      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.

                 SUMMARY OF THE STATE’S ARGUMENT
      Issue One: The plain language of Penal Code section 21.12(a)(1) establishes

two requirements for an individual to be subject to prosecution: (1) he must be an

employee of a school, and (2) he must work at the school in which his victim is

enrolled. The lower court’s majority opinion suggests that the first requirement is

not met when the accused is considered to be an employee of a school district,

rather than a particular school.    The court’s interpretation must be incorrect

because, otherwise, no public school teacher in the state would be subject to

prosecution for having sex with his or her students.

      Issue Two: The court of appeals disregarded this Court’s rules for

sufficiency review by viewing the evidence in a light other than that most

favorable to the verdict, dismissing inferences contrary to its own, viewing pieces

of evidence in isolation rather than cumulatively, and elevating direct evidence

                                         3
over circumstantial evidence.    Under the appropriate standard, the jury could

reasonably infer that the appellant worked at Caney Creek High School while G.T.

was enrolled there.

                      ARGUMENTS AND AUTHORITIES
I.    The lower court’s incorrect interpretation that an official employee of a
      public school district is not “an employee of a public or private primary
      or secondary school” is nonsensical and would lead to widespread
      misapplication of section 21.12.

      The majority opinion of the Ninth Court of Appeals strongly suggests that,

because the appellant was technically employed by Conroe I.S.D. and was not

officially considered to be an employee of Caney Creek High School, the jury

could not consider him to be “an employee of a public or private primary or

secondary school” under section 21.12(a). See Sutton, 2015 WL 4311170, at *1–2.

But this construction must be incorrect.

      The structure of section 21.12(a) establishes a threshold requirement when

analyzing whether an individual is subject to prosecution for improper relationship

between educator and student. Section 21.12(a) provides:

      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;



                                           4
             (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.

Tex. Penal Code Ann. § 21.12(a). By its terms, the threshold question for the

applicability of section 21.12 is whether the accused is “an employee of a public or

private primary or secondary school.” See id. If so, the next question is whether

the school employee’s conduct fits under subsections (1), (2), or (3). See id.

      The statute does not define the phrase “employee of a public or private

primary or secondary school.” Undefined terms in a statute are typically given

their ordinary meaning, unless a different definition is apparent from the term’s use
                                          5
in the context of the statute. See Tex. Gov’t Code Ann. § 311.011 (West 2013).

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). When construing a statute, the reviewing court’s primary

objective is to ascertain and give effect to the legislature’s intent. See Tex. Gov’t

Code Ann. § 312.005 (West 2013). To further this objective, the Court may

consider how a particular interpretation would lead to absurd consequences that the

legislature, in the context in question, could not possibly have intended. See

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

      The plain language of section 21.12(a)’s threshold requirement admittedly

does not state that the section applies to a school district employee, but it also does

not require the accused to be an employee of any particular school.              When

considered as a whole, it is clear that the legislature intended for the statute to

apply to a broad class of “school employees,” and its applicability does not hinge

on an individual’s official employment classification within the school system. To

construe the statute otherwise would lead to an absurd result.

      To illustrate, under the Ninth Court of Appeals’ interpretation, virtually none

of the public school employees in the state would be subject to prosecution for the

offense of improper relationship between educator and student. The evidence at

trial established that all school employees, district-wide, are paid by the district and

                                           6
are officially considered to be employees of the district—not any particular

school—by the human resources department (3 R.R. 176–78). Even a teacher who

maintains a classroom and spends the overwhelming majority of his or her working

hours at a particular school is officially considered to be an employee of the district

(3 R.R. 176–78). The evidence—and common knowledge—shows that similar

employment structures appear in nearly all school districts throughout the state.

Thus, preserving the lower court’s holding would essentially limit section 21.12’s

application to single-school districts and individual private schools.

      Surely, the legislature could not have intended, or even anticipated, such a

narrow application. To avoid this absurd result, the proper interpretation is set

forth in Justice Johnson’s dissent: “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.” Sutton, 2015 WL 4311170, at *2 (Johnson, J., dissenting).

      Under this framework, the appellant’s status as a school employee is

especially apparent under the circumstances of this case. The evidence showed

that he was paid by the district, he was required to acknowledge and abide by

district-wide policies and procedures applicable to all school employees, his

physical presence on school campuses was required according to the supervisory

                                          7
nature of his position, and he spearheaded extracurricular programs in which he

directly monitored school students and facilitated their participation (3 R.R. 167–

73, 212–17, 224–26). From this evidence, a rational jury could have easily found

that the appellant was a school employee according to the ordinary meaning of the

phrase. The Ninth Court of Appeals erred insofar as it concluded that the appellant

was not subject to prosecution under section 21.12(a).

      It could be argued, as Justice Johnson’s dissent suggests, that the majority

opinion bypassed this issue. But the lower court’s majority devotes a substantial

portion of its opinion to the evidence relating to the appellant’s method of

receiving payment and his official capacity according to the Conroe I.S.D.’s human

resources department. In fact, the majority appears to place great weight on the

conclusory testimony offered by G.T. and Carrie Galatas, the custodian of records

for Conroe I.S.D., because Galatas testified that the appellant was not employed by

Caney Creek, and G.T. testified that the appellant did not work for Caney Creek

and that G.T. never saw him working there. See id. at *1–2. These facts relate

directly to the appellant’s status as a school employee. Moreover, in its final

conclusion, the majority opinion definitively concludes that the appellant “was an

employee of C.I.S.D. Police Department.” Id. at *2. In doing so, the majority

erroneously relied on the definition of “employee” apparently utilized by those two

witnesses, rather than the ordinary meaning of those terms as attributed by the jury.

                                         8
The majority opinion, at the very least, strongly suggests that the appellant could

not be prosecuted under section 21.12(a) because he is not “an employee at a

public or private primary or secondary school.”

      Thus, a logical reading of the majority’s opinion would preclude prosecution

of nearly all teachers and educators who use their authoritative powers to coax

their students into engaging in sexual acts. This Court should address the issue to

prevent this unintended result, which would effectively curtail nearly all

application of section 21.12.

      However, even if the majority’s decision was limited to whether the

evidence supported the jury’s finding that “[G.T.] was enrolled in a . . . school at

which the [appellant] works,” the Ninth Court’s erroneous analysis nevertheless

necessitates reversal.

II.   The Ninth Court of Appeals improperly limited its sufficiency review
      and disregarded the jury’s reasonable inference that the appellant was
      physically present at Caney Creek High School while working.

      In addition to erroneously concluding that the appellant was not a school

employee under section 21.12, the lower court’s majority opinion abandoned the

appropriate standard when evaluating the sufficiency of the evidence to support the

jury’s finding that G.T. was enrolled in a school at which the appellant works.

      The appropriate standard of review is “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

                                         9
found the essential elements of the crime beyond a reasonable doubt.” Murray v.

State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). This standard tasks the

factfinder—not the reviewing court—with resolving conflicts in the testimony,

weighing the evidence, and drawing reasonable inferences from basic facts. Id.

The role of the reviewing court is to “determine whether the necessary inferences

are reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Id. (emphasis added).

“[A]ppellate courts are not permitted to use a ‘divide and conquer’ strategy for

evaluating sufficiency of the evidence because that approach does not consider the

cumulative force of all the evidence.” Id. When the record supports conflicting

inferences, this Court presumes that the factfinder resolved the conflicts in favor of

the verdict and must defer to that determination. Id.

      As previously stated, section 21.12 prohibits sexual activity between a

school employee and “a student enrolled in the school at which the employee

works.” See Tex. Penal Code Ann. § 21.12(a)(1). Hence, the critical inquiry here

is whether the plain and ordinary meaning of the phrase “at which the employee

works” includes the appellant’s employment-based affiliation with Caney Creek

High School.

      In deciding that no rational jury could have found that the appellant worked

at Caney Creek High School, the court of appeals appeared to rely on two isolated

                                         10
facts: (1) the appellant and the district police department did not office at Caney

Creek High School, and (2) the appellant was an employee of C.I.S.D. Police

Department and was not primarily assigned to Caney Creek High School. See

Sutton, 2015 WL 4311170, at *2. However, the fact that the appellant did not

office at Caney Creek cannot possibly render unreasonable the jury’s finding that

the appellant nevertheless “worked” there. Many employees hold no office at all,

or hold an office at one location but ostensibly work at another, such as a surgeon

who maintains an independent practice yet performs surgery at various hospitals.

Furthermore, the court of appeals’ reliance on the appellant’s formal geographical

assignment and the assumption that the appellant was an employee of the police

department—notwithstanding the conflicting evidence that the appellant was rather

an official employee of the school district—unjustifiably limits the statute’s

application in a manner that was not intended by the legislature.          The plain

language of section 21.12(a)(1) does not limit its application to those who

primarily or exclusively work at a particular school, and the legislature intended for

the statute to reach those who hold positions of authority over school students. See

Ex parte Morales, 212 S.W.3d 483, 496 (Tex. App.—Austin 2006, pet. ref’d). The

appellant’s prosecution in this case is consistent with that intent.

      Although Justice McKeithen’s majority opinion lacks a thorough discussion

of whether the term “at” in “at which the employee works” requires the employee’s

                                          11
physical presence, the decision appears to suggest that the jury could not

reasonably infer that the appellant worked at Caney Creek High School because no

direct evidence definitively established the appellant’s physical presence at the

campus while he was working. But the lower court’s reasoning is flawed for two

reasons.

      First, G.T. testified that the appellant repeatedly picked him up from the

campus in the appellant’s district-issued patrol car and uniform, while he was the

sole commander “on call” and was expected to respond to any incidents that

occurred at Caney Creek (3 R.R. 35–36, 77). Any conflicting evidence went to the

weight and should have been left within the jury’s purview. Second, the jury could

have reasonably inferred the appellant’s physical presence at Caney Creek High

School during normal working hours, because the evidence showed that the nature

of the appellant’s position required his presence on all campuses throughout the

district; he mentored and supervised the officer assigned to Caney Creek; and the

chief of police testified that he “know[s]” the appellant went to the campus based

on his supervisory duties despite being unable to place him there on any particular

date through official documentation (3 R.R. 215–17, 224–26). By deciding to the

contrary, the court of appeals erroneously elevated direct evidence over

circumstantial evidence and improperly limited the jury’s role as the factfinder.




                                         12
      And yet, the most troublesome aspect of the court’s decision is that it seems

to ignore a multitude of facts that support the jury’s finding. The evidence in this

case, when properly viewed in the light most favorable to the verdict, established

the following: the appellant’s responsibilities necessarily extended to Caney Creek

High School; he had direct contact with G.T. as a result of his authoritative position

via two extracurricular programs that the appellant directed—including one

incident in which the appellant shared a hotel room with G.T. on a school-

sponsored trip to a conference in San Antonio; and the appellant—a trained law

enforcement officer—admittedly knew his conduct was illegal (3 R.R. 42–44, 60-

61, 192–97, 205, 212–17). The cumulative effect of all the evidence supports the

jury’s finding that the appellant was a school employee who worked at Caney

Creek High School during the time of G.T.’s enrollment.

      The lower court’s majority opinion suggests that the existence of section

21.12(a)(2) indicates the legislature contemplated scenarios involving a district

employee who is not assigned to a particular campus and chose not to include a

roving police officer’s conduct. See Sutton, 2015 WL 4311170, at *2. But the

existence of subsection (a)(2) does not remove the appellant from prosecution

under subsection (a)(1). Such an exclusion is plainly absent from the statute’s

terms; a scenario involving criminal behavior that overlaps the two sections is

readily apparent, such as a licensed school nurse who is assigned exclusively to a

                                         13
particular campus and has sex with a student enrolled at the same campus.

Moreover, subsection (a)(2) criminalizes sexual activity between individuals who

may have never had any contact through the school system, where the perpetrator

is one of the listed licensed individuals who has no connection to the specific

school at which the victim is enrolled. By contrast, the evidence in this case

established that the appellant had a direct, authoritative connection to Caney Creek

High School and its students, including G.T., specifically. The State chose to

prosecute the appellant under subsection (a)(1) because it applied, not because

police officers were inconveniently omitted from subsection (a)(2).

      Ultimately, the jury’s construction of section 21.12(a)(1)’s terms is

acceptable in common parlance and supports the finding that the State proved each

element of the offense beyond a reasonable doubt. To ignore this issue would

invite numerous wrong decisions, considering there are a multitude of school-

based positions—maintenance workers, landscaping workers, unlicensed teacher’s

aides, administrative assistants, other police officers, etc.—who would escape

prosecution and be permitted to use their positions to coerce or persuade students

into engaging in sexual activity. Undoubtedly, the legislature did not intend to

authorize such conduct, and this Court should address the issue to prevent

widespread exploitation of the Ninth Court of Appeals’ erroneous decision.




                                        14
                         CONCLUSION AND PRAYER
      It is respectfully submitted that this Court should reverse the opinion of the

Court of Appeals and affirm the trial court’s judgment of conviction.



                                                   BRETT W. LIGON
                                                   District Attorney
                                                   Montgomery County, Texas


                                                   /s/ Brent Chapell
                                                   BRENT CHAPELL
                                                   T.B.C. No. 24087284
                                                   Assistant District Attorney
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301
                                                   936-539-7800
                                                   936-788-8395 (FAX)
                                                   brent.chapell@mctx.org




                                        15
             CERTIFICATE OF COMPLIANCE WITH RULE 9.4
      I hereby certify that this document complies with the requirements of Tex. R.

App. P. 9.4(i)(2)(B) because there are 2,923 words in this document, excluding the

portions of the document excepted from the word count under Rule 9(i)(1), as

calculated by the Microsoft Word computer program used to prepare it.



                                                  /s/ Brent Chapell
                                                  BRENT CHAPELL
                                                  Assistant District Attorney
                                                  Montgomery County, Texas


                          CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing instrument was

served electronically on counsel for the appellee on the date of the submission of

the original to the Clerk of this Court.


                                                  /s/ Brent Chapell
                                                  BRENT CHAPELL
                                                  Assistant District Attorney
                                                  Montgomery County, Texas




                                           16
                         Appendix A

Opinion of the Court of Appeals for the Ninth District of Texas
                                       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
