DARLINGTON v. STATENo. 05-10-01621-CR.
CHRISTY BRIGETTE DARLINGTON, Appellant,
THE STATE OF TEXAS, Appellee.
THE STATE OF TEXAS, Appellee.
Court of Appeals of Texas, Fifth District, Dallas.
Opinion issued February 9, 2012.
Before Justices Morris, Francis and Lang-Miers.
Opinion By Justice Morris.
DO NOT PUBLISH. TEX.R.APP. P. 47
JOSEPH B. MORRIS, Justice.
After the trial court denied his motion to quash the indictment, Christy Brigette Darlington pleaded nolo contendre to the offense of sexual assault of a child. On appeal, appellant challenges the State's failure to allege and prove he knew the victim was under the age of seventeen. He also argues that the absence of a culpable mental state with regard to the victim's age makes the statute under which he was charged unconstitutionally vague, deprives him of his Sixth Amendment right to present a meaningful defense, and violates the due course of law provisions of the Texas Constitution. For the reasons that follow, we affirm the trial court's judgment.
The State indicted appellant for sexual assault of a child. The indictment tracked the language of Texas Penal Code section 22.011, alleging in pertinent part that appellant "did intentionally and knowingly cause the penetration of the female sexual organ and anus of the [complainant], a child, who was not then the spouse of [appellant], by an object to-wit: the sexual organ, hand finger and tongue of the [appellant]." See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011). Appellant filed a pretrial motion to quash complaining the indictment lacked the required specific intent element of knowing the victim was under seventeen years of age. The trial court denied appellant's motion and sentenced him in accordance with a plea bargain agreement with the State. Appellant then filed a motion for new trial reurging the arguments in his motion to quash and contending for the first time that the U.S. Supreme Court holding in United States v. Flores-Figueroa,
We review de novo a trial court's denial of a motion to quash an indictment. Lawrence v. State,
Appellant also asserts that section 6.02 of the penal code requires the State to prove he knew the victim's age. According to appellant, this provision imposes on section 22.011(a)(2)(A) a culpable mental state with respect to the victim's age. We first note that appellant waived his complaint by failing to raise section 6.02 as a ground in support of his motion to quash. TEX. R. APP. P. 33.1(a). Even if appellant had preserved the issue for review, however, we conclude it is unmeritorious. Strict liability sex crimes have consistently been upheld despite the existence of section 6.02 since 1974. See Grice v. State,
In a related issue, appellant also argues the omission of a culpable mental state with respect to the victim's age deprived him of the statutory defenses of mistake of fact and mistake of law. The court of criminal appeals has previously held that to permit such defenses in a statutory rape case would be in contravention of clear legislative intent. Vasquez, 622 S.W.2d at 886; see also Jackson v. State,
To the extent that appellant argues the decision in United States v. Flores-Figueroa,
Appellant also contends that section 22.011 is unconstitutionally vague. Specifically, he argues that the offense's lack of any mental element relating to his knowledge of the victim's age forces him to guess at what conduct is permitted and what conduct is prohibited. He further asserts the statute (1) deprived him of his sixth amendment right under the U.S. Constitution to raise the defense that he did not know the victim was under age seventeen, and (2) violated the due course of law provisions of the Texas Constitution. As noted above, appellant did not specifically challenge the statute under which he was charged in the trial court below. Instead, he challenged the sufficiency of the indictment. As such, he has failed to preserve these complaints for appellate review. See TEX. R. APP. P. 33.1.
We also find no merit to appellant's arguments under the Sixth Amendment or the due course of law requirements of the Texas Constitution.
We now turn to appellant's challenges under the Texas due course of law provisions. In his brief, appellant concedes that his challenge based on the due course of law provisions of the Texas Constitution are to be construed identically to those made under the substantive due process requirements of the federal constitution. Unless the right infringed upon is deemed fundamental, a statute will satisfy due process so long as it bears some reasonable relation to a legitimate state objective. Reno v. Flores,
Having found no merit to any of appellant's complaints, we affirm the trial court's judgment.
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