Pearson v. State

JASON PEARSON, Appellant v. THE STATE OF TEXAS

No. 02-18-00360-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

September 3, 2020

On Appeal from the 16th District Court Denton County, Texas

Trial Court No. F16-1578-16

Before Gabriel, Kerr, and Birdwell, JJ.

Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Jason Pearson appeals from his convictions by a jury for sexual assault of a child as enhanced under Section 22.011(f) of the Texas Penal Code and indecency with a child. Tex. Penal Code Ann. §§ 21.11, 22.011(a)(2), (f). The jury assessed his punishment at twenty years' confinement for the indecency-with-a-child offense and life imprisonment for the Section 22.011(f) sexual-assault-of-a-child offense. Pearson challenges both convictions in one of his issues, contending that Code of Criminal Procedure Article 38.37, Section 1—which provides that in cases involving an offense against a child, extraneous-offense evidence by the defendant against the child must be admitted as to relevant matters—is unconstitutional because it violates the Texas Constitution's Separation of Powers provision. Tex. Const. art. II, § 1; Tex. Code Crim. Proc. Ann. art. 38.37, § 1. In his three remaining issues, he challenges only his sexual-assault-of-a-child conviction, contending (1) that the evidence was insufficient to prove the Section 22.011(f) enhancement, (2) that a Section 22.011(f) enhancement instruction is improper at guilt—innocence, or alternatively (3) that the trial court erred by incorrectly charging the enhancement as a special issue rather than as an element of the offense. Because Pearson raises only legal issues, we dispense with a description of the details of the underlying offenses. After considering his complaints, we affirm the trial court's judgment.

Unconstitutionality of Article 38.37, Article 1 Not Preserved

In his fourth issue, Pearson contends that Code of Criminal Procedure Article 38.37, Section 1 violates the Texas Constitution's Separation of Powers provision because it legislatively compels trial courts to admit certain evidence. Tex. Const. art. II, § 1; Tex. Code Crim. Proc. Ann. art. 38.37, § 1. Although Pearson did not raise this argument in the trial court, he contends that he was not required to do so, citing the Court of Criminal Appeals's opinion in Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). But in a later opinion, Karenev v. State, the Court of Criminal Appeals held that a facial challenge to the constitutionality of a criminal statute may not be raised for the first time on appeal; instead, it must have been objected to at trial. 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). In so holding, the court overruled its holding in Rose v. State, 752 S.W.2d 529, 553 (Tex. Crim. App. 1988) (op. on reh'g), that a facial separation-of-powers challenge to a penal statute could be raised for the first time on appeal. Karenev, 281 S.W.3d 428, 434 & n.51; see Carpenter v. State, No. 14-09-00499-CR, 2010 WL 4069355, at *2 (Tex. Crim. App.—Houston [14th Dist.] Oct. 19, 2010, pet. ref'd) (mem. op., not designated for publication) (describing Karenev's holding). Because Pearson did not properly preserve this complaint for appeal, we overrule it. See Tex. R. App. P. 33.1(a)(1); Karenev, 281 S.W.3d at 434.

Evidence Sufficient to Prove Section 22.011(f) Enhancement

In his first issue, Pearson complains that the State did not present sufficient evidence at trial to prove that he committed a first-degree felony under Penal CodeSection 22.011(f),¹ which provides that a sexual-assault-of-a-child offense—normally a second-degree felony—is a first-degree felony when "the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under [Penal Code] Section 25.01," the bigamy statute. Tex. Penal Code Ann. §§ 22.011(f), 25.01.

At the crux of Pearson's argument is his contention that the State was required to prove that he committed bigamy with the complainant, relying on this court's decision in Senn v. State, No. 02-15-00201-CR, 2018 WL 5291889, at *5 (Tex. App.—Fort Worth Oct. 25, 2018) (op. on reh'g), rev'd sub nom. Lopez v. State, 600 S.W.3d 43, 49 (Tex. Crim. App. 2020).² But in its opinion reversing that decision, the Court of Criminal Appeals held that the State does not have to prove that a defendant actually committed bigamy with the complainant to trigger the Section 22.011(f) enhancement; instead, the State must prove only "that the defendant was legally married to someone other than the victim at the time of the sexual assault." Lopez, 600 S.W.3d at 49. Pearsondoes not challenge the sufficiency of the evidence to prove that he was married when he committed the offense.³ Accordingly, we overrule his first issue.

Section 22.011(f) Enhancement Properly Included in Guilt—Innocence Charge

In his second issue, Pearson contends the trial court erred by including an instruction on the Section 22.011(f) enhancement in the jury charge on guilt—innocence because it is solely a punishment issue. In his third issue, he contends that if the trial court properly included the instruction in the guilt—innocence charge, it improperly charged it as a special issue rather than as an element of the offense. We discuss these issues together.

Potential jury-charge error is not subject to the usual preservation requirements; we must consider all alleged jury-charge errors, but we apply a different harm standard depending on whether the complained-of error was objected to. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

Jury charge

The pertinent parts of the guilt—innocence jury charge in this case read as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 31st day of October, 2010, in Denton County, Texas, the defendant, JASON PEARSON, did then and there intentionally or knowingly cause the penetration of the sexual organ of [the complainant], a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's sexual organ[,] then you will find the defendant guilty of Sexual Assault, as charged in Count II of the indictment.

If you do not so believe, or if you have a reasonable doubt thereof, you will find the Defendant not guilty as to Count II of the indictment.

. . . . [four pages of general instructions]

VERDICT FORM - COUNT II

(Presiding Juror to sign only one)

We, the jury, find the defendant, JASON PEARSON, guilty of the offense of Sexual Assault of a Child, as alleged in Count II of the indictment.

. . . .

SPECIAL ISSUE

If you have found the Defendant guilty of Sexual Assault of a Child as alleged in Count II of the indictment, then consider and answer the following Special Issue. If not, do not consider the following Special Issue.

1.

It is alleged in Count II of the indictment that at the time the alleged Sexual Assault of a Child was committed, [the complainant] was a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married under Section 25.01 of the Texas Penal Code.

2.

Under Section 25.01 of the Texas Penal Code, an individual commits an offense if:

(1) he is legally married and he:

a. purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or

b. lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

a. purports to marry or does marry that person in this state, or any other state or foreign country, under circumstancesthat would, but for the person's prior marriage, constitute a marriage; or

b. lives with that person in this state under the appearance of being married.

"Under the appearance of being married" means holding out that the parties are married with cohabitation and an intent to be married by either party.

"Spouse" means a person who is legally married to another.

It is a defense to bigamy that the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actor's prior marriage was void or had been dissolved by death, divorce, or annulment. For purposes of this subsection, an actor's belief is reasonable if the belief is substantiated by a certified copy of a death certificate or other signed document issued by a court.

Verdict Form— Special Issue

Do you unanimously find from the evidence beyond a reasonable doubt that at the time the Sexual Assault of a Child alleged in Count II of the indictment was committed, [the complainant] was a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married under Section 25.01 of the Texas Penal Code?

Count II of the indictment had been amended to allege

that JASON PEARSON, on or about the 31st day of October, 2010, and anterior to the presentment of th[e] indictment, in the County of Denton and State of Texas, did then and there intentionally or knowingly cause the penetration of the sexual organ of [the complainant,] a child who was then and there younger than 17 years of age and not the spouse of the defendant and a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married under Section 25.01 of the Texas Penal Code, by defendant's sexual organ.

Applicable law and analysis

Pearson contends that Section 22.011(f) is a punishment-enhancement statute;...