Reversed and Rendered and Opinion and Concurring Opinion filed December
19, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00807-CV

                    IN THE MATTER OF T.V.T., Appellant


                    On Appeal from the 314th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2017-04208J

                                     OPINION

      Appellant, 13 years old at the time of the offense, was charged with
aggravated sexual assault of a child under the age of 14. After the trial court denied
appellant’s pretrial application for writ of habeas corpus, motion for summary
judgment, motion to quash the petition, and motion to dismiss the petition, appellant
entered a stipulation of true to the allegation and was found to have engaged in
delinquent conduct. Appellant filed this appeal challenging the order of adjudication.
In his first two issues on appeal appellant argues the trial court erred in failing to
dismiss or quash the petition because a child under the age of 14 cannot be
prosecuted for aggravated sexual assault of a child under section 22.021 of the Texas
Penal Code. Appellant further argues that section 22.021 is unconstitutional on its
face and as applied to him. Concluding that the trial court abused its discretion in
denying appellant’s motion to quash the petition, we reverse the order of
adjudication and render judgment dismissing the case with prejudice.

                      FACTUAL AND PROCEDURAL BACKGROUND

       The State filed a petition in which it alleged that appellant, on or about March
1, 2017, intentionally and knowingly caused the penetration of the mouth of the
complainant, a person younger than 14 years of age, with appellant’s sexual organ.
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii), (2)(B). Appellant was born
February 15, 2004; at the time of the offense appellant was 13 years old; the
complainant was 12 years old.1

       Appellant filed a pretrial application for writ of habeas corpus in which he
alleged that section 22.021 of the Texas Penal Code was unconstitutional. Appellant
argued in his application that section 22.021 was unconstitutional on its face because
there was no set of circumstances under which the statute could be valid for a child
younger than 14 years of age. Appellant amended his application for writ of habeas
corpus alleging that section 22.021 of the Texas Penal Code was unconstitutional as
applied to him.

       Appellant also filed a motion to quash the petition and a motion to dismiss the
petition in which he requested the trial court to quash or dismiss the petition because


       1
         The victim was 12 years of age, and none of the following was alleged as an element of
the underlying criminal offense of aggravated sexual assault: (1) lack of consent (Tex. Penal Code
Ann. § 22.021(a)(1)(A)) or (2) serious bodily injury or attempts to cause death; threats; use or
exhibition of a deadly weapon; acting in concert with another person who is engaged in that
conduct; or administration of a substance that impairs the victim (Tex. Penal Code Ann. §
22.021(a)(2)(A)).

                                                2
the petition failed to state a claim on which appellant could be found guilty or
prosecuted.

      The trial court held a non-evidentiary hearing on appellant’s motions and his
application for writ of habeas corpus. At the beginning of the hearing the State
stipulated that both appellant and the complainant were younger than 14 years of age
at the time of the offense. Appellant argued at the hearing that he did not have the
legal capacity to knowingly or intentionally commit the offense. The trial court
denied appellant’s motions to quash or dismiss the petition and denied his
application for writ of habeas corpus. Following the trial court’s denial appellant
entered a stipulation and a plea of true to the petition. The trial court adjudicated
appellant delinquent and assessed punishment pursuant to an agreement with the
State. Appellant was placed on probation until he turned eighteen and required to
attend sex offender treatment to avoid lifetime registration as a sex offender.

      In four issues appellant challenges the trial court’s denial of his motion to
quash, motion to dismiss, and application for writ of habeas corpus.

                                     ANALYSIS

Standard of Review

      Juvenile proceedings are generally governed by the Texas Rules of Civil
Procedure. See Tex. Fam. Code Ann. § 51.17(a). As such, a complaint about a
pleading defect in a juvenile proceeding should be raised by special exceptions, not
by a motion to quash. In re M.T., No. 13-05-00434-CV, 2007 2007 WL 2265072, at
*2 n.1 (Tex. App.—Corpus Christi Aug. 9, 2007, no pet.) (mem. op.); see Tex. R.
Civ. P. 90, 91. Courts, however, construe pleadings liberally and treat improperly
filed “motions to quash” as special exceptions. See Mena v. State, 633 S.W.2d 564,
565 (Tex. App.—Houston [14th Dist.] 1982, no pet.).


                                          3
      We review a trial court’s interpretation of the law de novo. State v. Shumake,
199 S.W.3d 279, 284 (Tex. 2006); In re K.D.H., 426 S.W.3d 879, 882 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). A trial court has no discretion in determining
what the law is or in properly applying the law. In re Tex. Dep’t of Family &
Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006). A trial court abuses its
discretion if it fails to properly interpret the law or applies the law incorrectly. In re
B.R.H., 426 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2012, no pet.). In
reviewing whether the trial court abused its discretion in denying appellant’s motion
to quash we review the trial court’s application of the law de novo. Id.; Shumake,
199 S.W.3d at 284.

Motion to Quash

      Appellant in his motion to quash and motion to dismiss alleged that the
petition failed to state a claim on which he could be found guilty or prosecuted.
Appellant’s motion was premised on the Legislature’s determination that children
under 14 cannot consent to sex. See In re B.W., 313 S.W.3d 818, 824 (Tex. 2010);
Tex. Penal Code Ann. § 22.021(a)(2)(B).

      The statute proscribing sexual assault is found in the Texas Penal Code, which
does not generally apply to people younger than the age of 17. See Tex. Penal Code
Ann. § 8.07. Instead, the Legislature enacted the Juvenile Justice Code (Family Code
title 3), which with several exceptions, made violations of a penal law of this state
or of the United States by a person who is ten years of age or older and under 17
years of age either (1) delinquent conduct or (2) conduct indicating a need for
supervision. Tex. Fam. Code Ann. §§ 51.02(2), 51.03. The juvenile court has
jurisdiction over such adjudications. Tex. Fam. Code Ann. § 51.03; In re B.W., 313
S.W.3d at 819–20. One of the purposes of placing such jurisdiction in civil courts
under the Family Code is to “provide for the care, the protection, and the wholesome

                                            4
moral, mental, and physical development of children coming within its provisions.”
Tex. Fam. Code Ann. § 51.01(3).

       The offenses of sexual assault and aggravated sexual assault are felonies,
punishable by imprisonment, see Tex. Penal Code Ann. §§ 12.33; 22.011(f);
22.021(e), and therefore fall under the Family Code’s definition of “delinquent
conduct.” As applicable here, a person commits the offense of sexual assault if the
person intentionally or knowingly causes the penetration of the mouth of a child by
the sexual organ of the actor. Tex. Penal Code Ann. § 22.011(a)(2)(B).2 A “child” is
a person younger than 17 years of age. Id. § 22.011(c)(1). A person commits the
offense of aggravated sexual assault if the victim is a child younger than 14 years of
age. Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii), (2)(B), (b)(1).

       It is generally an element of the offense of sexual assault that the other person
did not consent. See Tex. Penal Code Ann. § 22.011(a)(1). By contrast, if the victim
is younger than 14 years of age, consent is not a defense available to the accused.
See Tex. Penal Code Ann. § 22.021(a)(2)(B); In re F.J.S., 324 S.W.3d 207, 210 (Tex.
App.—El Paso 2010, no pet.).

       “The notion that an underage child cannot legally consent to sex is of
longstanding origin and derives from the common law.” In re B.W., 313 S.W.3d at
820. In Texas, “a child under fourteen cannot legally consent to sex.” May v. State,
919 S.W.2d 422, 424 (Tex. Crim. App. 1996). Sexual assault of a child younger than
14 years of age is considered aggravated sexual assault and is subject to the same
consequences as the sexual assault of an adult involving serious bodily injury or
other aggravating circumstances. See Tex. Penal Code Ann. § 22.021(a)(2)(A). In

       2
          Since appellant was adjudicated delinquent, sections 22.011 and 22.021 were amended to
state that an actor commits an offense “regardless of whether the person knows the age of the child
at the time of the offense.” See Tex. Penal Code Ann. §§ 22.011, 22.021. References to the code
sections in this opinion reference the code sections in effect at the time of the alleged offense.

                                                5
passing these statutes, the Legislature has expressed both the extreme importance of
protecting children from sexual exploitation, and the awareness that children are
more vulnerable to exploitation by others even in the absence of explicit threats. In
re B.W., 313 S.W.3d at 821.

      Holding that a 13-year-old child could not be prosecuted as a prostitute under
section 43.02 of the Penal Code, the Texas Supreme Court stated, “[g]iven the
longstanding rule that children under fourteen lack the capacity to understand the
significance of agreeing to sex, it is difficult to see how a child’s agreement could
reach the ‘knowingly’ standard the statute requires.” In re B.W., 313 S.W.3d at 822.
The court further held that “legal capacity to consent” is necessary to find that a
person “knowingly agreed” to engage in sexual conduct for a fee. Id. at 824. The
supreme court determined that with the Legislature determining that children under
14 cannot consent to sex, the rationale then follows that the State may not adjudicate
such a young offender for an offense that includes consent to sex as one of its
essential elements. Id. at 824. Although In re B.W. involved the offense of
prostitution rather than aggravated sexual assault, the holding in that case is
implicated in this case because section 22.021 is central to the supreme court’s
holding that the Legislature did not intend to prosecute children under 14 years of
age for offenses that include legal capacity to consent to sex. See In re R.R.S., 535
S.W.3d 67, 78 (Tex. App.—El Paso 2017, pet. granted).

      Aggravated sexual assault is a conduct-oriented, or nature-of-conduct offense.
Gonzales v. State, 304 S.W.3d 838, 848–49 (Tex. Crim. App. 2010). A person acts
intentionally, or with intent, with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the conduct
or cause the result. Tex. Penal Code Ann. § 6.03(a). A person acts knowingly, or
with knowledge, with respect to the nature of his conduct when he is aware of the

                                          6
nature of his conduct. Id. § 6.03(b). An intentional or knowing act is an element of
the offense of aggravated sexual assault. Id. § 22.021. A defendant’s intent cannot
be inferred from the mere act of sexual conduct with the complainant. Rubio v. State,
607 S.W.2d 498, 501 (Tex. Crim. App. 1980). The supreme court held that a person
younger than 14 years of age does not have the legal capacity to reach the
“knowingly” standard the statute requires. In re B.W., 313 S.W.3d at 822. Children
below a certain age lack the mental capacity to consent to certain actions and the law
reflects that inability to consent. Because a 13-year-old child cannot knowingly
engaged in a sexual act as a matter of law, we conclude appellant cannot be
prosecuted for aggravated sexual assault under section 22.021 of the Penal Code.

      The State argues that appellant’s reliance on In re B.W. is misplaced. In
making this argument the State notes that In re B.W. addressed a prosecution for
prostitution while this case involves a prosecution for aggravated sexual assault. The
State argues that the decision in In re B.W. was expressly limited to the offense of
prostitution. We find no such limitation in the supreme court’s opinion. The court
repeatedly recognized that “children of a certain age lack the mental capacity to
understand the nature and consequences of sex, or to express meaningful consent in
these matters.” 313 S.W.3d at 826. Section 22.021 of the Penal Code was central to
the supreme court’s holding in In re B.W..

      The State also challenges appellant’s reliance on In re R.R.S., arguing it was
wrongly decided. R.R.S., like the appellant in this case, was 13 years old when he
was charged with the aggravated sexual assault of his siblings. 536 S.W.3d at 70.
R.R.S. entered a plea of true to the State’s allegations. Id. A month after his plea
R.R.S. filed a motion for new trial seeking to withdraw his plea stating there were
“mitigating factors that were not presented at the adjudication hearing.” Id. at 71.
The trial court denied the motion and R.R.S. appealed. Id.

                                          7
      On appeal R.R.S. asserted that the record failed to show his plea was knowing,
intelligent, and voluntary. Id. In addressing R.R.S.’s challenge to the culpable mental
state the El Paso Court of Appeals noted that R.R.S. challenged the sufficiency of
the evidence to support the “knowing” element of the aggravated sexual assault
charge. Id. at 76–77. The court held that, given the age of the accused and the
charged offense, R.R.S. met his burden to show legally insufficient evidence to
support a knowing and voluntary plea of true to delinquent conduct as alleged by the
State. Id. at 80. The court of appeals remanded the case to the trial court to enable
the parties to address, and the trial court to determine, whether the holding of In re
B.W. extends to the offense of aggravated sexual assault. Id.

      In today’s case, unlike our sister court, we are not constrained by the record
before us. Here, the question of whether the holding in In re B.W. applies to
aggravated sexual assault was directly addressed in the trial court and is squarely
before this court. The supreme court determined that a child under the age of 14 does
not have the legal or mental capacity to “knowingly” consent to sex, a mental
capacity required by section 43.02 proscribing prostitution. In re B.W., 313 S.W.3d
at 822. Section 22.021 of the Texas Penal Code proscribing aggravated sexual
assault requires as an element of the offense the same “knowing” standard. See Tex.
Penal Code Ann. § 22.021. Therefore, the supreme court’s holding that a child under
14 lacks the legal capacity to consent to sex necessarily leads to our conclusion that
a child under 14 lacks the legal capacity to knowingly engage in sexual assault. We
are bound by the supreme court’s decision in In re B.W.. See Dallas Area Rapid
Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex.
2008) (recognizing as fundamental that supreme court decisions are binding on
lower courts).

      The State also cites a First Court of Appeals decision in an attempt to

                                          8
distinguish In re B.W. from this case. See In re H.L.A., No. 01-12-00912-CV, 2014
WL 1101584, at *6 (Tex. App.—Houston [1st Dist.] Mar. 20, 2014, no pet.) (mem.
op.). In H.L.A., the petition alleged sexual assault and unlawful restraint. Id. at *1.
The State dismissed the sexual assault charge. Id. H.L.A. was adjudged delinquent
for “intentionally or knowingly restrain[ing] another person,” which required him to
register as a sex offender. See Tex. Penal Code Ann. § 20.02(a); Tex. Code Crim.
Proc. Ann. art. 62.001(5)(E)(ii). Citing In re B.W., H.L.A. argued that because he
was a minor, he lacked the mental capacity to appreciate that his conduct would
require him to register as a sex offender. In re H.L.A., 2014 WL 1101584 at *5. The
court of appeals noted that the supreme court’s holding in In re B.W. did not apply
because, in H.L.A., the State dismissed the sexual assault allegation and was only
required to prove the elements of unlawful restraint, which did not implicate legal
capacity to consent to sex. Id. at *6. Since the State dismissed the sexual assault
charge in H.L.A., the holding in In re H.L.A. is not implicated in this case.

      Similarly unavailing are the State’s arguments that the Legislature, while
intending for section 22.021 to apply to an actor under 14 years of age, chose to
accommodate younger offenders by providing they cannot be tried as adults and
cannot receive determinate sentences. See Tex. Fam. Code Ann. §§ 53.045(e);
54.02(j)(2)(B). The fact that a 13-year old cannot be tried as an adult and sentenced
as an adult does not remove the State’s burden to show that a person “knowingly”
committed the charged offense.

      The Legislature has passed laws recognizing the vulnerability of children to
sexual exploitation, including an absolute prohibition of legal consent for children
under 14. In the absence of a clear indication that the Legislature intended to subject
children under 14 years of age to prosecution for aggravated sexual assault when
they lack the capacity to consent to sex as a matter of law, we hold that a child under

                                          9
14 years of age may not be charged with that offense. See In re B.W., 313 S.W.3d at
826. Because appellant lacks the legal capacity to knowingly engage in the conduct
alleged in the petition, the petition fails to state a claim on which the trial court can
make a finding that appellant engaged in delinquent conduct. See Johnson v. State,
401 S.W.2d 298, 300 (Tex. Civ. App.—Houston 1966, no writ) (petition, even if
proved, was insufficient to subject child so charged to the jurisdiction of a juvenile
court). The trial court therefore abused its discretion in denying appellant’s motion
to quash the petition. We sustain appellant’s issue challenging the trial court’s ruling.

      Because we have sustained appellant’s first issue, we need not address
appellant’s constitutional challenges. See In re B.L.D., 113 S.W.3d 340, 349 (Tex.
2003) (“As a rule, we only decide constitutional questions when we cannot resolve
issues on non-constitutional grounds.”).

                                     CONCLUSION

      We reverse the order of adjudication and render judgment dismissing the case
with prejudice. See Tex. Fam. Code Ann. § 54.03(g); Tex. R. App. P. 43.2(c).




                                         /s/    Jerry Zimmerer
                                                Justice



Panel consists of Justices Zimmerer, Spain, and Hassan (Spain, J., joining opinion
and concurring).




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