Appeal from the 351st District Court Harris County, Texas
Trial Court Case No. 1454602
consists of Justices Keyes, Bland, and Huddle.
case presents challenges to the constitutionality of Texas
Penal Code Section 21.12. The State charged Juan Sergio
Carreon Toledo with the offense of engaging in an improper
relationship between an educator and a student, a
second-degree felony. See Tex. Penal Code Ann.
§ 21.12 (West Supp. 2016). Carreon entered a guilty plea
to the charged offense without an agreed recommendation as to
punishment. The trial court ordered a pre-sentencing
investigation and held a punishment hearing, during which it
admitted the PSI report into evidence. At the hearing's
close, the trial court assessed Carreon's punishment at
fifteen years' confinement.
moved for a new trial, which the trial court denied. On
appeal, Carreon challenges that ruling, contending that (1)
section 21.12 violates due process and equal protection
constitutional provisions because it criminalizes consensual
sexual relationships with students who have reached 17 years
of age, as the complainant was in this case; (2) the trial
court's 15-year sentence violates the Eighth
Amendment's prohibition against cruel and unusual
punishment; and (3) his trial counsel rendered ineffective
assistance during the punishment phase. We hold that Carreon
has not demonstrated a constitutional violation or
ineffective assistance. We therefore affirm.
the summer of 2014 until his arrest, Carreon worked as the
girls' varsity soccer coach at a high school in Harris
County, Texas. That fall, Carreon began texting with a
17-year-old student who was a high school senior on the
soccer team "in a flirty way." Their communications
led to clandestine hotel encounters and an intimate sexual
relationship. Carreon and the student met at locations away
from school several times and had sexual intercourse on three
of those occasions. The student attempted to end the
relationship with Carreon that December. But they had another
sexual encounter in January 2015 on the school grounds. In
describing that encounter, which took place in the
school's soccer storage room, the student told police
that she voluntarily kissed Carreon, but that he then blocked
the door and coerced her into performing oral sex.
began to circulate at the school. Initially, Carreon lied
about the relationship and told the high school principal
that the student was lying about their relationship to her
friends. When confronted by the principal, the student also
denied the relationship. The school suspended the student for
starting the rumors, and the student's father came to the
school to apologize to Carreon on his daughter's behalf.
A later police investigation revealed that the rumors were
true. The student recounted the nature of the relationship to
police. When confronted with evidence from the police
investigation, Carreon admitted to the relationship.
perceived the relationship with the student as consensual,
but acknowledged understanding "how this incident can
have a negative effect on a young girl." The student
stated that Carreon made her "feel that the only way
I'd continue to get his help with college recruitment and
continue to be the star player and get play[ing] time was to
keep doing sexual things with him."
student's father testified at the punishment hearing
about the adverse effect the relationship with Carreon had on
the student: other students mocked her, and the student quit
the soccer team to avoid taunts from other players and their
parents during matches. The student stopped attending school
for a period of time to avoid the harassment. She provided a
statement for the PSI report in which she detailed her
struggles with suicidal thoughts that led her to seek
Due Process and Equal Protection Challenges
challenges the facial constitutionality of section 21.12 on
three grounds: (1) under the Due Process Clause of the
Fourteenth Amendment of the United States Constitution,
citing Lawrence v. Texas, 539 U.S. 558, 123 S.Ct.
2472 (2003); (2) under the Equal Protection Clause of the
Fourteenth Amendment; and (3) under the due course of law
provision of the Texas Constitution. We address these
challenges in turn.
A facial challenge must show that any interpretation
of the statute is unconstitutional.
facial challenge attacks the statute itself rather than a
particular application of it. City of Los Angeles v.
Patel, ___ U.S. ___, 135 S.Ct. 2443, 2449 (2015). A
successful facial challenge to a statute's
constitutionality requires a showing that the statute
operates unconstitutionally in all possible circumstances; in
other words, no set of circumstances exists under which the
statute would be constitutionally valid. Peraza v.
State, 467 S.W.3d 508, 514-15 (Tex. Crim. App. 2015);
Horhn v. State, 481 S.W.3d 363, 372 (Tex.
App.-Houston [1st Dist.] 2015, pet. ref'd). Determining
whether a statute is facially unconstitutional is a question
of law that we review de novo. Ex parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013); Lopez v.
State, 493 S.W.3d 126, 138 (Tex. App.-Houston [1st
Dist.] 2016, pet. ref'd).
party who challenges a statute bears the burden to establish
that it is unconstitutional. Peraza, 467 S.W.3d at
514. If a constitution interpretation is possible, then we
interpret the statute in the way that upholds its
constitutional validity. Id.; Maloney v.
State, 294 S.W.3d 613 626 (Tex. App.-Houston [1st Dist.]
2009, pet. ref'd). We presume that the legislature
intended to enact a statute that comports with the Texas and
federal constitutions. See Tex. Gov't Code Ann.
§ 311.021(1); Rodriguez v. State, 93 S.W.3d 60,
69 (Tex. Crim. App. 2002). Bearing in mind this presumption,
we examine section 21.12, together with the constitutional
rights that Carreon contends it offends.
Because Penal Code Section 21.12 furthers a
legitimate state interest, it does not
offend the federal constitution.
21.12 forbids a sexual relationship between an educator and a
student enrolled in the school where the educator works.
Carreon pleaded guilty under section 21.12, admitting that he
was a licensed primary or secondary school employee who
"engage in sexual contact, sexual intercourse, or
deviate sexual intercourse with a person who is
enrolled" at the school in which he worked. Tex. Penal
Code Ann. § 21.12(a)(1). The statute specifies that it
applies "regardless of the age" of the student.
Id. § 21.12(a)(3).
concedes that he committed the offense, but he argues that it
allows for a conviction for consensual adult sexual conduct,
and the statute's criminalization of that behavior is
The right recognized in Lawrence v. Texas is not an
unlimited right to engage in sexual conduct.
contends that section 21.12 is constitutionally prohibited
because a constitutional right exists to engage in private,
consensual sexual conduct with an adult person, and the
statute offends this right by criminalizing conduct between
an educator and a student who has attained the age of consent
in Texas, which is 17 years. We first determine whether the
right that Carreon identifies-the right of adults to engage
in private, consensual sexual conduct, including conduct
between school employees and those students over the age of
consent-is a fundamental one in constitutional jurisprudence,
requiring less deference to the state's rationale for
enacting the statute prohibiting that conduct.
fundamental right or liberty interest is one that is
"deeply rooted in this Nation's history and
tradition" and "implicit in the concept of ordered
liberty." Chavez v. Martinez, 538 U.S. 760,
775, 123 S.Ct. 1994, 2005 (2003). If a challenged statute
interferes with a "fundamental right, " then we
uphold its constitutionality only if it is narrowly tailored
to serve a compelling state interest. Cannady v.
State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000);
State v. McNutt, 405 S.W.3d 156, 161-62 (Tex.
App.-Houston [1st Dist] 2013, pet. ref d). In contrast, a
challenged action that does not involve a fundamental right
does not violate the Constitution as long as it furthers a
legitimate state interest "that could 'justify its
intrusions into the personal and private life of the
individual.'" Ex parte Morales, 212 S.W.3d
483, 493 (Tex. App.-Austin 2006, pet. ref d) (quoting
Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484).
contends that we should review section 21.12 with strict
scrutiny and require that the State demonstrate a compelling
state interest for criminalizing conduct between an educator
and a 17-year-old student. In Lawrence, the United
States Supreme Court held that the due process clause of the
Fourteenth Amendment affords consenting adults the right to
engage in private sexual relationships free from government
intrusion. 539 U.S. at 558, 578, 579. However, the Court in
Lawrence did not hold that right to be available in
all circumstances or describe it as a fundamental right.
Rather, the Supreme Court recognized that the liberty
interest that it recognized did not extend to sexual conduct
involving prostitution, minors, or-important to this
case-"persons who might be injured or coerced or who are
situated in relationships where consent might not be easily
refused." Id. at 578, 123 S.Ct. at 2484. The
Court in Lawrence did not characterize the right it
recognized as demanding strict scrutiny of all statutes
governing sexual conduct-rather, the court applied the
rational basis test in rejecting the statute under review in
that case. See id. (determining only
whether statute "further[ed a] legitimate state
interest" that could "justify its intrusion into
the personal and private life of the individual");
see also Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 745 n.32 (5th Cir. 2008)
("Lawrence did not categorize the right to
sexual privacy as a fundamental right."). Given the
limits expressed in Lawrence, and its application of
a rational basis test in that case, we apply the rational
basis test and examine whether section 21.12 furthers a
legitimate state interest.
Providing a safe environment free from coercive sexual
conduct in compulsory educational ...