            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-1250-12


                       MARK ALEXANDER FLEMING, Appellant

                                             v.

                                 THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            DENTON COUNTY

       A LCALA, J., filed a concurring opinion.

                               CONCURRING OPINION

       I wholeheartedly join the majority opinion’s affirmance of the conviction of Mark

Alexander Fleming, appellant, for aggravated sexual assault of a child. I write separately to

further discuss why I believe that (1) this Court’s decision is consistent with Supreme Court

precedent, (2) emerging technology may be less consequential in these cases than it may

appear at first blush, (3) permitting a mistake-of-fact defense would negatively impact the

reporting and prosecution of this type of crime, and (4) appellant’s claim of mistake of fact

is unreasonable even if this Court were to recognize the propriety of a such a defense.
                                                                                    Fleming-2

       I. The Majority Opinion is Consistent With Supreme Court Precedent

       Although, as a general principle, criminal intent must be proven beyond a reasonable

doubt to sustain a conviction, the Supreme Court has repeatedly observed that proof of the

age of a child in a prosecution for statutory rape is an exception to that general rule. See

Morissette v. United States, 342 U.S. 246, 251, 72 S. Ct. 240, 244 (1952). In Morissette, the

Supreme Court described the historical recognition by common-law commentators that there

are “a few exceptions” to the “sweeping statement that to constitute any crime there must

first be a ‘vicious will.’” Id. It stated, “Exceptions came to include sex offenses, such as

rape, in which the victim’s actual age was determinative despite defendant’s reasonable

belief that the girl had reached age of consent.” Id. at 251 n.8. Decades after the Morissette

decision, the Supreme Court reaffirmed this principle in United States v. X-Citement Video,

Inc., 513 U.S. 64, 72 n.2, 115 S. Ct. 464, 469 (1994). In X-Citement Video, the Supreme

Court stated, “Morissette’s treatment of the common-law presumption of mens rea

recognized that the presumption expressly excepted ‘sex offenses, such as [statutory]

rape[.]’” Id. (quoting Morissette, 342 U.S. at 251 n.8). Distinguishing, on one hand, child-

pornography distribution offenses, which would require proof of criminal intent as to the age

of the child, from statutory rape, which, on the other hand, would not require proof of that

intent, the Supreme Court explained that the rapist “confronts the underage victim personally

and may reasonably be required to ascertain that victim’s age.” Id. In each of these

instances, the Supreme Court has suggested that a defendant who has had personal sexual
                                                                                     Fleming-3

contact with a child-complainant is unreasonable in claiming that he was unaware that the

child was not an adult. See id. In none of these cases has the Supreme Court suggested that

it is unconstitutional to place the burden on the adult to affirmatively determine that a sexual

partner is actually an adult rather than a child. See id.

       In its more recent decision in Lawrence v. Texas, the Supreme Court did not suggest

that due process would require a mistake-of-fact defense as to the age of the child in a

prosecution for a sexual offense. See Lawrence v. Texas, 539 U.S. 558, 569, 123 S. Ct. 2472

(2003). Rather, in deciding whether due process would extend to protect the right of

homosexual adults to engage in consensual sex, the Supreme Court in Lawrence described

the difference between Texas’s sodomy law that Texas was enforcing against two consenting

adults as compared to the historical origin of sodomy laws. It explained that, in the 19th

century,

       [l]aws prohibiting sodomy do not seem to have been enforced against
       consenting adults acting in private. A substantial number of sodomy
       prosecutions and convictions for which there are surviving records were for
       predatory acts against those who could not or did not consent, as in the case
       of a minor or the victim of an assault. . . . Instead of targeting relations
       between consenting adults in private, 19th-century sodomy prosecutions
       typically involved relations between men and minor girls or minor boys,
       relations between adults involving force, relations between adults implicating
       disparity in status, or relations between men and animals.

Id. (emphasis added). In deciding that the enforcement of sodomy laws against two

consenting adults violated due process, the Supreme Court distinguished that situation from

19th-century laws that prohibited sexual acts with children or non-consenting adults, which
                                                                                      Fleming-4

were not unconstitutional. Id. at 578 (“The present case does not involve minors. It does not

involve persons who might be injured or coerced or who are situated in relationships where

consent might not easily be refused.”). Texas’s view in enforcing sodomy laws against two

consenting adults, therefore, was inconsistent with the historical application of those laws

to protect a child from having sexual relations with an adult, as here. Id.

       Furthermore, and of particular relevance to the issues presently before this Court,

nothing in Lawrence suggests that a defendant has a constitutional right to a mistake-of-fact

defense as to his belief about the age of a child who was thirteen years old at the time of a

sexual offense. Id. at 578-79. The issue in Lawrence, as described by the Supreme Court,

was “whether the petitioners were free as adults to engage in the private conduct in the

exercise of their liberty” under due process. Id. at 564. The Court emphasized that “as a

general rule,” the State should avoid “defin[ing] the meaning of the relationship or to set its

boundaries absent injury to a person or abuse of an institution the law protects,” and it further

noted that its decision was rooted in the principle “that adults may choose to enter upon this

relationship in the confines of their homes and their own private lives and still retain their

dignity as free persons.” Id. at 567. The Court concluded that its ruling did not involve

minors, non-consenting or coercive relationships, public conduct, or prostitution, but rather

“two adults who, with full and mutual consent from each other, engaged in sexual practices

common to a homosexual lifestyle.” Id. at 578. The holding in Lawrence was thus limited

to a situation involving two consenting adults, a matter in which there is “no legitimate state
                                                                                           Fleming-5

interest,” but that decision cannot rationally be used as a basis to argue that the same standard

should apply when the State has a legitimate interest at stake, that of protecting children from

sexual abuse. See id. In Lawrence, as in its earlier decisions, the Supreme Court has

carefully drawn lines to ensure that the State remains free to enact legislation that gives effect

to its legitimate interest in the protection of children. See id. Because a mistake-of-age

defense is not constitutionally required, only a minority of jurisdictions permit this defense

under similar facts. 1

       Consistent with Supreme Court precedent, Texas’s aggravated-sexual-assault statute

does not prescribe any mental state as to the age of a child in a prosecution under that statute.

See T EX. P ENAL C ODE § 22.021(a)(1)(B). Under Texas law as dictated by the Legislature,

the offense of aggravated sexual assault of a child does not require the State to provide



1
         For example, the Model Penal Code allows the defense of reasonable mistake as to age when
the victim is over the age of ten, and federal law allows for a mistake-of-age defense when the minor
is between the ages of twelve and sixteen. See Model Penal Code § 213.6; 18 U.S.C. § 2243(c)(1).
But, viewed in a different light, this also means that the Model Penal Code does not allow a mistake-
of-fact defense when the victim is ten or younger, and federal law does not allow it when the victim
is eleven or younger. Here, the complainant was thirteen years old. The difference between the
Model Penal Code and federal law and the situation here, therefore, is not that those laws allow a
mistake-of-age defense in all cases, but instead that those laws would allow the defense for
complainants who are older than ten or eleven years old. The question before us then comes down
to a matter of degree: Given that the mistake-of-age defense is not permitted for children ages ten
and eleven and under in several other jurisdictions, is it unconstitutional if it is not permitted for
children ages thirteen and under in Texas? I cannot conclude that the federal Constitution would
draw a bold line here. I also note that only seventeen states permit the mistake-of-age defense, with
at least twenty-three jurisdictions characterizing “statutory rape” as a strict-liability offense. See
United States v. Rodriguez, 711 F.3d 541, 557 (5th Cir. 2013) (citing Catherine L. Carpenter, On
Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM . U. L. REV . 313, 385-
91 (2003)). The majority rule in the United States, therefore, is to not permit a defense on mistake
as to the age of a child-victim. Id.
                                                                                             Fleming-6

evidence that the defendant was aware of a child-complainant’s age at the time of the

offense, nor does it allow a defendant to raise a defense on that basis. See id.2 This Court

has repeatedly observed that the statutory language neither requires proof of mens rea as to

the child’s age nor provides for a mistake-of-age defense.3 I conclude that this Court must

abide by Supreme Court precedent and Texas law as written, rather than legislate from the

bench by creating a non-statutory defense where none is required.4 I, therefore, agree with


2
        Under Texas law, a defendant commits aggravated sexual assault of a child, a first-degree
felony, if he has sexual relations with a child thirteen years of age or under, and a lesser offense of
sexual assault of a child, a second-degree felony, if he has sexual relations with a child fourteen to
sixteen years of age. See TEX . PENAL CODE §§ 22.011(a); 22.021(a). By punishing offenders who
victimize children thirteen years of age and younger at the highest punishment range available,
regardless of the reasonableness of the actor’s belief about the child’s age, the Texas Legislature has
determined that these younger children deserve society’s greatest protection. See id. Under Texas
law, children ages thirteen and under may never consent to sexual relations under any circumstances.
See id. In contrast, teenaged children at ages fourteen through sixteen may consent to sexual
relations with a spouse or a person around their same age. See id. § 22.011(e). The Texas
Legislature, therefore, has drawn an absolute line of no consent under any circumstances at thirteen
years of age or younger. See id. § 22.021(a). The Legislature has “not acted unreasonably or
arbitrarily” in determining that children thirteen years of age and younger are deserving of special
protection. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (examining for
unreasonable and arbitrary acts of Legislature to determine whether statute is unconstitutional).
3
        See Black v. State, 26 S.W.3d 895, 898 (Tex. Crim. App. 2000) (per curiam) (“No scienter
with respect to the lack of consent in sexual assault and aggravated sexual assault is required when
the victim is a child. Nor is mistake of fact with respect to the victim’s age a defense to either form
of sexual assault.”) (citations omitted); see also Vasquez v. State, 622 S.W.2d 864, 866 (Tex. Crim.
App. 1981) (stating that, under well-established Texas law, “it had consistently been held that a
female under the age fixed by statute was deemed in law to be incapable of consenting to an act of
sexual intercourse, and one who had committed the act on her was guilty of rape, notwithstanding
the fact that he had obtained her actual consent, or was ignorant of her age, or even though she
invited or persuaded him to have intercourse with her”).
4
        I note here that part of the rationale offered by the dissenters in support of permitting a
mistake-of-fact defense under these circumstances is that the Legislature has enacted sex-offender-
registration laws that apply to a defendant “even if the finder of fact believed that the defendant was
                                                                                           (continued...)
                                                                                          Fleming-7

the majority opinion that, under Supreme Court precedent, the federal Constitution does not

require that a defendant be afforded a mistake-of-fact defense as to a child-complainant’s age

and that this is a matter solely for the Texas Legislature to determine.

            II. Existence of Emerging Technology May Be Inconsequential

       Anyone can easily see that children now, unlike historically, have unprecedented

access to emerging technology, cell phones, texts, and social media web sites. And children

may falsify their ages on a web site or take Glamour Shots that make them appear older. Had

this complainant and appellant never met in person, facts like these would likely be a good

reason to explain how technological developments might impact this case. But this is not a

situation where impersonal communication took place over an electronic medium, or under

circumstances in which an adult may have been unaware that the person on the other end of

the electronic communication was a child. Here, appellant and the complainant met in person

and engaged in sexual intercourse on multiple occasions. The fact that some children will

misstate their age on web sites and that this may consequently mislead someone who has

never met them as to their age presents a completely different situation from one involving

a defendant who engages in person-to-person, intimate sexual contact with a child. Sexual


(...continued)
entirely blameless with respect to whether he was dealing with a child.” But the view that an
individual can be “blameless” when he has sexual intercourse with a child under fourteen years of
age runs contrary to the legislative determination that the burden of ensuring that a sexual partner
is of legal age falls squarely on the defendant, who must verify that the person with whom he is
intimate is not a child. In failing to meet his burden under Texas law to ascertain that his intimate
partner is legally capable of consent, a defendant who has sexual intercourse with a child under the
age of fourteen can hardly be called “blameless.”
                                                                                         Fleming-8

intercourse between an adult and a minor that occurred in the pre-cell phone era is

fundamentally no different than the nature of its occurrence now. Nothing about this intimate

sexual contact has changed an adult’s historical burden to make himself aware of the age of

the child. It is the adult’s responsibility to ascertain the true age of the child, particularly one

who is thirteen years of age or younger. See T EX. P ENAL C ODE § 22.021(a)(2)(B). The

Supreme Court’s description of the situation is as applicable now as it was six decades ago:

The rapist “confronts the underage victim personally and may reasonably be required to

ascertain that victim’s age.” X-Citement Video, 513 U.S. at 72 n.2 (citing Morissette, 342

U.S. at 251 n.8).

       Although I remain unpersuaded that emerging technology compels us to

constitutionally require a mistake-of-fact defense under these circumstances, as a matter of

public policy, it may be appropriate for the Legislature to consider whether to permit such

a defense for older, high-school-aged teenagers with a limited right of consent. Here, the

dissenting opinion is advocating for a mistake-of-fact defense that would apply to situations

involving younger, middle-school-aged children. Assuming a child begins kindergarten at

the age of five, that child will be thirteen years old at the beginning of eighth grade, which

is in middle school in Texas, and will be fourteen years old at the beginning of ninth grade,

which is in high school. As a matter of law, no adult should be able to claim that he was

reasonably mistaken that a middle-school-aged child was an adult. I continue to believe that

this defense is inappropriate in cases involving children who are thirteen years of age and
                                                                                    Fleming-9

younger because those children are statutorily incapable of giving any kind of consent. See

T EX. P ENAL C ODE § 22.021(a)(2)(B). In any event, this determination is ultimately for the

legislative branch alone to make, rather than the judicial branch.

III. Permitting a Mistake-of-Fact Defense Would Negatively Impact Reporting and
                        Prosecution of Child Sex Offenses

       It is suggested that if this Court were to permit it, the mistake-of-fact defense would

apply only in rare cases when a defendant could produce evidence demonstrating that he

harbored a reasonable but mistaken belief as to the age of the child with whom he engaged

in sexual contact. This suggestion underestimates the probable impact of this Court’s

adoption of such a defense, which, if permitted, would be raised in virtually any case in

which a defendant could plausibly claim that he was unaware of the complainant’s age. At

trial, knowing that he would be acquitted if a jury believed his testimony, a defendant could

testify that he believed the child-complainant, even one as young as ten years of age,

appeared to be above the age of consent. His defense strategy would be to show that his

belief was reasonable by asking questions of the child and her family designed to convince

the jury that she did things to make herself look and sound older than her actual age.

Furthermore, if the mistake-of-fact defense were constitutionally required as suggested by

the dissenting opinion, the trial court would be compelled to permit the defense attorney to

ask the following types of questions of the complainant: whether she wore makeup; how she

wore her hair; whether she wore skinny jeans or mini skirts; whether she had been through

puberty, was developed, and wore a bra, and, if so, what size; what types of books, movies,
                                                                                   Fleming-10

videos, and music she enjoyed; whether she had a cell phone or texted people; whether she

had a Facebook page and what kinds of pictures she posted there; what her friends looked

like and how old they were; whether she was permitted to date; whether she ever broke her

parents’ rules; and other personal and embarrassing questions. The trial would be converted

from one that judges the defendant’s conduct to one that places the victim and her family on

trial. Avoiding this type of victim-bashing was precisely why rape shield laws were passed

decades ago. See T EX. R. E VID. 412 (prohibiting evidence of past sexual behavior of sexual-

assault victim). Rape shield laws became necessary because the possible introduction at trial

of embarrassing details about a rape victim’s sexual history was deterring victims from

reporting crimes and testifying in court. If this Court were to permit a mistake-of-fact

defense under the misguided belief that it was constitutionally required, then trial-court

judges would be similarly constitutionally required to permit defense interrogations posed

to young children and their families about embarrassing personal matters. The likely result

would be the re-victimization of these young sexual-assault victims at each of their respective

trials. The farther reaching consequence would be to deter children and their families from

reporting sex offenses out of fear that they too would be subjected to humiliation and

embarrassment in the courtroom. Absent any constitutional imperative that would require

it to do so, this Court should not permit a mistake-of-fact defense when such a ruling would

have the practical effect of diminishing protections for victims and their families and

deterring reporting of sex crimes.
                                                                                   Fleming-11

             IV. Appellant Has Failed to Show that He Acted Reasonably

       Assuming that this Court permitted a mistake-of-fact defense as to a statutory rape

victim’s age, to show its applicability here, appellant would have had to provide at least a

scintilla of evidence to support his argument that he formed a reasonable belief that the

complainant was an adult over seventeen years of age. See Allen v. State, 253 S.W.3d 260,

267 (Tex. Crim. App. 2008); T EX. P ENAL C ODE §§ 8.02(a) (defense exists where a mistaken,

“reasonable belief” about a matter of fact “negate[s] the kind of culpability” required for the

offense), 1.07(a)(42) (“reasonable belief” is that which “would be held by an ordinary and

prudent man in the same circumstances as the actor”). The record indicates that at the time

when he committed the offense, appellant was twenty-four years of age and the complainant

was more than a decade his junior at thirteen years of age. Even according to his own

evidence, appellant was reckless and unreasonable about determining whether the

complainant was actually over seventeen years of age. According to appellant’s theory, the

complainant lied about her age, telling him she was twenty-two but showing that her age was

twenty on her MySpace page. She lived with her parents. Appellant wrote a love letter

claiming that he knew that she was four or five years younger than he, which further

indicates that he did not attempt to determine how old she really was and, in fact, knew that

she was much younger. The fact that other people who had limited contact with the

complainant may also have been reckless about failing to determine her correct age does not

change appellant’s recklessness into reasonable conduct. See Montgomery v. State, 588
                                                                                   Fleming-12

S.W.2d 950, 953 (Tex. Crim. App. 1979) (“The mistake of fact defense . . . is based on the

mistaken belief of the accused, and it looks to the conduct of others only to the extent that

any such conduct contributes to the mistaken belief.”); Lasker v. State, 573 S.W.2d 539, 542

(Tex. Crim. App. 1978). Appellant had extensive contact with the complainant, so the

reasonableness of his belief should be judged by a different standard than the beliefs of those

who had limited contact with the complainant. Furthermore, group recklessness by a

defendant’s friends and others should not amount to a license to prey upon children who are

thirteen and younger under the veil of reasonableness. Appellant’s own theory, therefore,

shows that he did not ever directly ascertain from the complainant her actual age and that he

remained recklessly ignorant about that fact. In short, his evidence of his mistaken belief

fails to show that he was reasonably mistaken about the complainant’s true age.

                                       V. Conclusion

       Society recognizes that young children ages thirteen and under are especially

vulnerable to adults, who can easily overpower them physically and mentally. Furthermore,

these young children lack the judgment to assess and avoid potentially dangerous situations.

These young children, therefore, may exhibit bad judgment in deceiving others about their

age, coming home late, or spending the night away from home without permission. The

question is not whether young children lack judgment; they do. The question is whether the

federal Constitution requires us to recognize an affirmative defense based on the defendant’s

reasonable but mistaken belief that a child thirteen years old or under was an adult capable
                                                                                   Fleming-13

of consent. By declining to impose a mental-state requirement as to the age of the child, the

Legislature has squarely placed the burden on the adult to determine that the person he is

having sex with is not actually thirteen years old or younger. The severe penalties for getting

it wrong are the Legislature’s way of incentivizing due diligence and ensuring that it is

adults, not children, who are encumbered with this responsibility. I conclude that the

elevated punishments imposed by the Texas Legislature in response to the victimization of

young children strengthen rather than subvert my conclusion that a defendant’s due-process

rights do not encompass the entitlement to a mistake-of-fact defense in an aggravated-sexual-

assault case.

       With these comments, I respectfully concur.

Filed: June 18, 2014


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