PD-0429-16 09/14/2016
Appellant's PDR
1."Did the Court of Appeals properly conclude that there was no rational basis for the appellant receiving disparate treatment?
2. "Should Appellant's equal protection claim be reviewed under strict scrutiny?
3. "Was it error for the Court of Appeals to affirm Appellant's sexual assault convictions as second-degree felonies and remand those charges to the trial court for a new trial on punishment, rather than order the prosecution of Appellant dismissed or remand the charges to the trial court to enter an order dismissing the prosecution?"
State's PDR
"Did the Court of Appeals properly conclude that there was no rational basis for the appellant receiving disparate treatment?"
Estes was convicted of sexually assaulting his son's 15 year-old girlfriend. The offense was a first degree felony because, by virtue of Estes being married, the victim "was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married." Tex. Penal Code § 22.011(f).
The court of appeals held that section 22.11(f) denied Beck equal protection of the law because it punished him more severely than if he had not been married and the State had no rational basis for the unequal treatment. It held that the State has not demonstrated an interest in protecting the institution of marriage in light of its repeal of statutes criminalizing adultery years ago. It also held that Beck could not be punished more harshly for using his status as a married man to gain the trust of the victim or her parents because there is no evidence that he did so in this case. Finally, the court rejected the State's reading of the statute to encompass a marriage prohibited because the victim was too young. It found nothing in the statute to indicate that such an expansive application was intended. Because only the element that increased the level of offense to a first degree felony was unconstitutional, the court reformed the judgment to reflect a conviction for a second degree felony sexual assault and remanded for a new punishment hearing.
The State's petition contends that the provision's disparate treatment of a defendant's marital status is rational due to the importance of marriage in our society. It argues that sexual assault of a minor child by a married defendant harms both the defendant's marriage and the victim's trust in the institution of marriage. The State reiterates its claim that the legislature may properly enhance punishment for those who would use the "cloak of marriage" to gain the trust of their victims. It also claims that instead of viewing the first degree felony provision as an enhancement based on being married, it should be viewed as a decreased second degree punishment for not being married. Alternatively, the State argues that the application of section 22.11(f) should not be viewed as punishing his marital statutes but rather punishing his victimization of a child who he was forbidden from marrying due to her age, since marriage to a child under 16 is void without parental consent. The State submits that if the Legislature had intended that the provision be limited to bigamy, it would have explicitly said so.
Estes' petition contends that the court of appeals erred by applying the rational basis test to the statute instead of requiring strict scrutiny. He argues that when a statutory classification disadvantages the exercise of a fundamental right, the State must show a compelling interest for the disparate treatment. Here, the freedom to marry is the fundamental right at issue. He also claims that the correct remedy in this case is not to reform the judgment and remand for a new punishment hearing but to set aside the conviction. He argues that there is no case law supporting the court of appeals' decision to remand for a new punishment hearing because this case does not involve sufficiency of the evidence or an illegal sentence.
