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Toledo v. State

Court of Appeals of Texas, First District

April 6, 2017


         On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1454602

          Panel consists of Justices Keyes, Bland, and Huddle.


          Jane Bland Justice.

         This 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.

         Carreon 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.


         From 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.

         Rumors 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.

         Carreon 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."

         The 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 psychiatric treatment.


         I. Due Process and Equal Protection Challenges

         Carreon 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. A facial challenge must show that any interpretation of the statute is unconstitutional.

         A 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).

         The 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.

         B. Because Penal Code Section 21.12 furthers a legitimate state interest, it does not offend the federal constitution.

         Section 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).[1]

         Carreon 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 constitutionally prohibited.

         1. The right recognized in Lawrence v. Texas is not an unlimited right to engage in sexual conduct.

         Carreon 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.

         A 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).

         Carreon 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.

         2. Providing a safe environment free from coercive sexual conduct in compulsory educational ...

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