Appeal from the County Criminal Court at Law No. 8 Harris
County, Texas Trial Court Cause No. 2072804
consists of Justices Christopher, Bourliot, and Zimmerer.
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.
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.
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).
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.
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.
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.
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.
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
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 ...