In re T.V.T.

651 S.W.3d 1

In the MATTER OF T.V.T., Appellant

NO. 14-18-00807-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 19, 2019

Stephen D. Jackson, Conroe, for Appellant.

Patricia McLean, Eric Kugler, for Appellee.

Panel consists of Justices Zimmerer, Spain, and Hassan

Jerry Zimmerer, Justice

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 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.).

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 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 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. , 536 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,...