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Robles v. State

Court of Appeals of Texas, Fourteenth District

August 20, 2019

RODNEY JAMES ROBLES, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Cause No. 2072804

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          OPINION

          Tracy Christopher Justice

         In this appeal from a conviction for prostitution, we consider several challenges to the constitutionality of a statute, as well as a challenge to the trial court's exclusion of evidence and its denial of two requested charge instructions. Finding no merit to any of the challenges presented, we affirm the trial court's judgment.

         BACKGROUND

         Appellant was driving at night through a neighborhood known for prostitution when he noticed a woman on the sidewalk who was dressed provocatively in black and pink striped leggings. Appellant pulled into a parking lot and gestured at the woman, inviting her to come closer. When the woman approached and said that she was "working" (a slang term for prostituting), appellant responded that he desired to have sex with her in exchange for a fee. The woman told appellant to meet her at a park, and appellant drove away as instructed. The woman, who was actually an undercover officer, then gave a signal to a standby unit, which swooped in and made an arrest.

         DUE PROCESS CLAUSE

         In a pretrial motion to quash the charging instrument, appellant challenged the constitutionality of the prostitution statute, which, at the time of the offense, provided in material part as follows: "A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly (1) offers to engage, agrees to engage, or engages in sexual conduct; or (2) solicits another in a public place to engage with the actor in sexual conduct for hire." Act effective Sept. 1, 2015, 84th Leg., R.S., ch. 1273, § 1, 2015 Tex. Gen. Laws 4311, 4311 (amended 2017) (current version at Tex. Penal Code § 43.02).

         Appellant argued that this statute ran afoul of multiple constitutional provisions, but the trial court overruled his motion in its entirety. Appellant now complains of that ruling in separate issues on appeal, and he begins by arguing that the statute violates his liberty interest under the Due Process Clause of the Fourteenth Amendment.

         The Due Process Clause encompasses both substantive and procedural components. See Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016). When, as in this case, a party claims that a statute has deprived him of a right protected by substantive due process, our level of review depends on whether the right involved is fundamental or non-fundamental. Id. A right is fundamental if it is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). If the right involved is fundamental under this standard, then we review the challenged statute with strict scrutiny, which requires the government to show that the statute is narrowly tailored to serve a compelling state interest. Id. If, on the other hand, the right involved is non-fundamental, then our review of the statute is more deferential. Id.

         The party claiming the deprivation of substantive due process has the initial burden of demonstrating that he has a constitutionally protected liberty interest at stake. Id. at 313-14. As the challenger here, appellant claims that he has a fundamental liberty interest to engage another adult in consensual sexual conduct. This characterization oversimplifies the right at issue.

         "In a substantive-due-process inquiry, the framing of the right at issue is key to determining whether that right is so rooted in this nation's history as to be afforded the same heightened protections as other fundamental rights." Id. at 315. Here, the right at issue is more properly characterized as the right to engage another adult in consensual sexual conduct for a fee.

         Appellant cites to several cases involving certain rights of sexual intimacy, beginning with Lawrence v. Texas, 539 U.S. 558 (2003), which invalidated the Texas statute against homosexual sodomy. That case has no bearing on our analysis here because the Supreme Court specifically noted that that case "does not involve . . . prostitution." Id. at 578. Appellant also refers to Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which involved restrictions on the right to marry, and Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008), which involved restrictions on the sale of sexual devices. None of these cases establishes that there is a deeply rooted right to engage another adult in consensual sexual conduct for a fee. Because appellant has not shown that this right is fundamental, we do not apply strict scrutiny.

         Normally, if a statute is not subject to strict scrutiny, then a court may only perform a deferential form of review that considers whether the statute is rationally related to a legitimate governmental purpose. See Schlittler, 488 S.W.3d at 313. Appellant suggests that we should apply an intermediate level of scrutiny instead, relying on the Ninth Circuit's decision in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), which involved a challenge to the since-repealed policy known as "Don't Ask, Don't Tell." But Witt is not binding on us, and it is inapposite in any event because the Ninth Circuit restricted its intermediate level of ...


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