AFFIRMED and Opinion Filed April 29, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01352-CR
GLENN LOUIS BAKER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82158-2014
MEMORANDUM OPINION Before Justices Whitehill, Osborne, and Nowell Opinion by Justice Osborne
Appellant, Glenn Louis Baker, was convicted by a jury of indecency with a
child1 and subsequently sentenced to two years’ imprisonment. In this appeal,
appellant raises three issues, all of which concern statutory construction of the
definition of “sexual contact” contained in the indecency statute. TEX. PENAL CODE
ANN. § 21.11(c)(2). Because we find no merit in appellant’s arguments, we affirm.
1 Appellant was originally indicted for continuous sexual abuse of a child in violation of TEX. PENAL CODE ANN. § 21.02(b). The jury, however, found appellant guilty of the lesser included offense of indecency with a child in violation of PENAL § 21.11(a)(1). Background
B.G. was twelve years old at the time of trial. She testified to events which
occurred when she was between five and seven years old at the home of appellant,
who was her paternal grandfather. She testified that she found it hard and
embarrassing to talk about these events.
On occasion, B.G. would be alone with appellant when her grandmother was
out of the house. She and appellant would occasionally watch cartoons in an open
living room upstairs. Sometimes appellant would take off his clothes and lay them
on the seat of a recliner in the room. Appellant would then tell her to take off her
clothes and she would pull her pants partially off. B.G. testified that she did not want
to do this, but did it because appellant told her to. Appellant would then touch her
“private part,” both through her clothes and on her skin. This happened on more than
one occasion. It made her feel uncomfortable and embarrassed.
B.G. also testified that she and appellant “played doctor.” She would wrap
bandages around his arms and ankles. On one occasion while “playing doctor,”
appellant had her wrap his “private part” (i.e., his penis) in a bandage.
On yet another occasion when her grandmother was not home, appellant and
B.G. were in the kitchen; appellant told B.G. to take off her pants and underwear and
spread her legs open. Appellant did not have his pants on during this event. Using
an iPad, appellant took pictures of B.G.’s private part as well as his private part. He
then used an application on the iPad to make those body parts appear older and fatter. –2– Appellant deleted the pictures so “no one would see them.” During these events,
appellant also made B.G. touch his penis with her hand.
Appellant asked B.G. to keep these events secret, telling her that they couldn’t
tell her grandmother. The last episode occurred around or shortly after her seventh
birthday.
B.G. made a delayed outcry, first to her mother and later to a counselor with
the Children’s Advocacy Center in Plano, Texas.
Issue 1: Sufficiency of the Evidence
In his first issue, appellant claims the evidence is legally insufficient because
the jury convicted him of conduct that was not criminal. Specifically, appellant
claims that the indecency statute does not prohibit a child from touching an adult’s
genitals. The State responds that the indecency statute prohibits any touching of any
part of a child’s body, including the child’s hand, with any part of an adult’s genitals.
The State further responds that, because B.G. testified that appellant made her touch
his penis with her hand on at least two occasions, the evidence was sufficient to
support his conviction. We agree with the State.
The Statute
The statute prohibiting indecency with a child reads, in relevant part, as
follows:
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless
–3– of whether the person knows the age of the child at the time of the offense, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact;
***
(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child;
or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
PENAL § 21.11 (a), (c).
The Indictment and Verdict
The indictment in this case charged appellant with three separate offenses:
on or about the 10th day of October, 2011 through the 31st day of December, 2013 in said county and State, did then and there during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against B.G., said acts of sexual abuse having been violations of one or more of the following penal laws, including:
aggravated sexual assault of a child, intentionally and knowingly cause the penetration of the emale (sic) sexual organ of B.G., a child then younger than fourteen (14) years of age, and not the spouse of the defendant, by means of the defendant's finger;
–4– AND/OR
indecency with a child, intentionally and knowingly, with the intent to arouse and gratify the sexual desire of any person, engage in sexual contact by touching the genitals of B.G., a child younger than seventeen (17) years of age and not the spouse of the defendant, by means of defendant’s hand;
AND/OR
indecency with a child, intentionally and knowingly, with the intent to arouse and gratify the sexual desire of any person, engage in sexual contact by causing the hand of B.G., a child younger than seventeen (17) years of age and not the spouse of the defendant, to touch part of the genitals of said defendant;
and each of the aforementioned acts of sexual abuse were committed on more than one occasion and, at the time of the commission of each of the acts of sexual abuse, the defendant was seventeen (17) years of age or older and B.G. was a child younger than fourteen (14) years of age.
There were four verdict forms submitted to the jury; the first form permitted
conviction for continuous sexual assault of a child, the second and third forms
permitted conviction for indecency with a child, and the fourth verdict form
permitted the jury to find appellant not guilty. The order of the verdict forms
submitted to the jury essentially tracked the order of the offenses alleged in the
indictment, though both the second and third verdict forms were phrased in identical
language: “We, the jury, unanimously find the defendant guilty of the lesser offense
of Indecency with a Child by Contact.” The presiding juror signed the third verdict
–5– option, presumptively finding appellant guilty of indecency with a child by contact
because he caused B.G.’s hand to touch his genitals.2
Analysis
As appellant admits in his brief to this Court, his sufficiency argument turns
not on an evaluation of whether the State proved the elements of the alleged offense
beyond a reasonable doubt but rather on the proper construction and interpretation
of Sections 21.11(a)(1) and 21.11(c)(1), (2) of the Penal Code vis-à-vis the
allegations contained in the third paragraph of the indictment, i.e., that appellant
caused B.G.’s hand to touch part of his genitals. PENAL §§ 21.11(a)(1); 21.11(c)(1),
(2).
According to appellant, the indecency statute does not prohibit a child victim
from touching an adult’s genitals. Appellant claims that, to engage in sexual contact,
the defendant must either (1) touch the child or (2) cause the child to touch another
2 From the record, it appears the issue of which offense of indecency the jury found was raised after the verdict had been received: THE COURT: . . . I see the charge now and I think I understand what the problem was. But from talking to the bailiff, I understand the State and the Defendant both agree to accept the charge as it was received by the Court, and that is a guilty finding of indecency by contact, one count, right?
[BY THE PROSECUTOR] Yes, Your Honor, one count.
THE COURT: And that’s the Defendant’s understanding as well?
[BY DEFENSE COUNSEL] Yes, sir, one count.
Both appellant and the State briefed this case on the theory that, by signing the third verdict form, the jury convicted appellant of indecency with a child because he caused B.G.’s hand to touch his genitals. Neither party raises any issues regarding whether the jury found that appellant had touched B.G.’s genitals.
–6– child, as opposed to an adult. Appellant argues that this is the only logical reading
of the indecency statute and that in order for the indecency statue to prohibit the type
of behavior alleged in this case, i.e., appellant’s penis touching the child’s hand, the
definition of sexual contact would have to be expanded to include “any touching by
the child, including touching through clothing with the anus, breast, or any part of
the genitals of a person” as opposed to the actual language of the statute which
prohibits “any touching of any part of the body of a child” with the anus, breast, or
any part of the genitals of a person.
The State responds that appellant’s arguments are contrary to the plain
language of the statute and have no support in case law.
Interpreting the Statute
We interpret a statute in accordance with the plain meaning of its language,
unless the language is ambiguous or the plain meaning leads to absurd results that
the legislature could not possibly have intended. Griffith v. State, 166 S.W.3d 261,
262 (Tex. Crim. App. 2005). We endeavor to give effect to the whole statute, which
includes each word and phrase, if possible. Id.
Lack of Authority
Appellant has not cited this Court to any authority to support his arguments
regarding his proposed statutory construction and we have found none. Indeed,
appellant admits in his brief to this Court that he could find no case law to directly
–7– support his claim and discusses five cases which he admits “may appear, directly or
indirectly, to undermine and/or conflict with his position.3
One of the cases cited by appellant, Loving v. State, 401 S.W.3d 642, 648–49
(Tex. Crim. App. 2013), is completely contrary to his claim. In Loving, the defendant
exposed his genitals and began masturbating in the presence of two sisters, ages eight
and nine. Id. at 643. The sisters left the room, but later returned. Id. While the
defendant was still masturbating, he touched the younger sister. Id. When the
defendant completed his masturbation he touched the older sister and asked her to
touch his penis; she “punched it,” i.e., his penis, instead. Id. In holding that the
indecency statute prohibits various types of activity that constitute separate offenses,
the Court of Criminal Appeals addressed the definition of sexual contact and how it
operated under the facts of the case:
“Sexual contact” now expressly includes touching through the clothing, and the definition divides prohibited sexual contact into two categories: first, it prohibits any touching by a person of a child’s anus, breast, or genitals; second, it prohibits any touching of any part of a child’s body with the anus, breast, or genitals of any person. . . . Both categories of prohibited touching also require the requisite mental state. . . . Therefore, the plain language of the statute forbade the touching at issue here because . . . (defendant) . . . caused the older sister to touch his genitals when she punched his penis.
3 See Speights v. State, 464 S.W.3d 719 (Tex. Crim. App. 2015); Loving v. State, Nos. 03-11-00074- CR & 03-11-00075-CR, 2012 WL 3601127 (Tex. App.—Austin Aug. 17, 2012)(mem. op., not designated for publication), aff’d in part as modified, rev’d in part, 401 S.W.3d 642 (Tex. Crim. App. 2013); Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007); Hulsey v. State, 211 S.W.3d 853 (Tex. App.—Waco 2006, no pet.); Haney v. State, 977 S.W.2d 638 (Tex. App.—Fort Worth 1998, pet. ref’d). –8– Id. at 648–49 (citing to PENAL § 21.11(c)(1), (2); emphasis added). Under that
Court’s interpretation of the statute, causing a child to touch an adult’s genitals is
prohibited conduct.
A Child’s Hand is “Part of the Body”
The indecency statute prohibits, in clear and unambiguous language, the
touching of any part of the body of a child with the anus, breast, and any part of the
genitals of a person. PENAL § 21.11(a), (c). A hand is clearly a part of the child’s
body. See Merriam-Webster.com/dictionary/hand (defining “hand,” in part, as “the
body part at the end of the arm of a human”). Therefore, the act of causing B.G.’s
hand to touch appellant’s genitals is covered by the plain language of the statute.
Causation
Appellant fails to appreciate the causation element of the statute. The Penal
Code defines causation: “[a] person is criminally responsible if the result would not
have occurred but for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient to produce the
result and the conduct of the actor clearly insufficient.” PENAL § 6.04; see also
Gonzales v. State, No. 05-18-00895-CR, 2019 WL 3059878, at *4 (Tex. App. —
Dallas July 12, 2019, pet. ref’d) (mem. op., not designated for publication). A child
cannot consent to sexual contact or intercourse. Gonzales, 2019 WL 3059878, at *4;
see also In re B.W., 313 S.W.3d 818, 823 (Tex. 2010); Smallwood v. State, 471
S.W.3d 601, 607 (Tex. App.—Fort Worth 2015, pet. ref’d). As a result, a defendant –9– who initiates and directs sexual contact may be a “cause” of the result. Gonzales,
2019 WL 3059878, at *4 (holding that evidence which established that a defendant
who pulled his penis out of his pants and repeatedly asked a child for oral sex until
she acquiesced to get away from him was legally sufficient to show appellant
“caused” the penetration of the child’s mouth by his penis). Thus, in order to find
appellant guilty, the jury had to find that appellant caused the conduct of the child,
i.e., caused B.G.’s hand to touch his genitals. PENAL § 21.11 (c)(2).
The Evidence Establishes Sexual Contact
We review a complaint about the sufficiency of the evidence by considering
all the evidence in the light most favorable to the verdict to determine whether, based
on that evidence and the reasonable inferences therefrom, a factfinder was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The factfinder, in this case the jury, is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Jackson, 443 U.S. at 319;
Brooks, 323 S.W.3d at 899. A child victim’s testimony alone is sufficient to support
a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07;
Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Jones v. State, 428
S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
In order to convict appellant, the jury had to find that appellant caused a part
of B.G.’s body, i.e., her hand, to touch his genitals. B.G. testified that she touched –10– appellant’s genitals on at least two occasions at his request: once while they were
“playing doctor,” and a second time while appellant was photographing their
respective “private parts” in the kitchen of his home. By convicting appellant of
indecency by contact, the jury obviously found B.G. credible and we defer to that
determination.
Conclusion
We conclude that the third paragraph of the indictment in this case alleged
conduct that constitutes an offense of indecency with a child. We further conclude
that the evidence adduced at trial is sufficient to uphold appellant’s conviction for
that offense. We overrule appellant’s first issue.
Issue 2: Constitutionality of PENAL § 21.11(c)(2)
In his second issue, raised in the alternative, appellant alleges that, if this Court
holds that the third paragraph of the indictment alleged prohibited conduct under
Section 21.11(c)(2) of the Texas Penal Code, then that statute is unconstitutionally
vague as applied to him. According to appellant, the plain-language of the statute
does not put a reasonable person on notice “that if a child touches the defendant’s
anus, breast, or any part of his genitals, the defendant can be prosecuted, tried, and
convicted.” The State responds that appellant has not preserved his argument for
appellate review because he did not argue at trial that the conduct described in the
third paragraph of the indictment failed to allege an offense or that the statute was
otherwise unconstitutional as applied to him. The State further responds that the –11– indecency statute plainly prohibits the conduct alleged in the indictment, i.e., causing
B.G.’s hand to touch appellant’s genitals. We agree with the State.
Preservation
An “as applied” challenge to the constitutionality of a statute is subject to the
general requirement that a party must preserve error by a timely request, objection,
or motion in the trial court. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App.
2014); Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); TEX. R.
APP. P. 33.1(a).
Appellant does not direct this Court to any place in the record, and we have
found none, where he raised a challenge to the constitutionality of PENAL 21.11(c)(2)
as applied to him. Nor does appellant attempt to excuse the lack of an objection or
argue that preservation is unnecessary in this case under the dictates of Marin v.
State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain
v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Cf. Flores, 245 S.W.3d at
443 (Cochran, J. concurring) (suggesting that an “as applied” challenge to the
constitutionality of a penal statute may be made for the first time on appeal). As a
result, this issue has not been preserved for our review.
On the Merits
Even if appellant had preserved this issue for our review, we would not find
the statute unconstitutional as applied to him.
–12– A litigant raising only an “as applied” challenge, as opposed to a facial
challenge to a statute, concedes the general constitutionality of the statute, but asserts
that the statute operates unconstitutionally as to him because of his particular facts
and circumstances. See Faust v. State, 491 S.W.3d 733, 743-44 (Tex. Crim. App.
2015); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).
When reviewing the constitutionality of a statute, we presume that the statute is valid
and that the Legislature acted reasonably in enacting it. Faust, 491 S.W.3d at 744
(citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). Because of
the presumption of constitutionality, the burden rests on the defendant to establish
the statute’s unconstitutionality as applied to him. See Estes v. State, 546 S.W.3d
691, 698 (Tex. Crim. App. 2018); Schlittler v. State, 488 S.W.3d 306, 313 (Tex.
Crim. App. 2016).
As noted above, in prohibiting the acts of which appellant was accused, the
Texas Penal Code reads as follows:
(a) A person commits an offense if, with a child younger than 17 years of age … the person:
(1) . . . causes the child to engage in sexual contact;
*** (c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. –13– PENAL § 21.11(a)(1), (c)(2) (emphasis added).
The plain language of the statute is not vague. The statute is sufficiently clear
to provide a person of ordinary intelligence a reasonable opportunity to know that
the alleged conduct, i.e., causing a child to touch his genitals with her hand, was
prohibited. See, e.g., Gonzales, 2019 WL 3059878, at *4 (holding that a defendant
who initiates and directs sexual intercourse with a child may be a “cause” of the
result as much as the person who physically controls the penetration). Appellant has
failed to demonstrate that the indecency statute is unconstitutionally vague as
applied to him. We overrule appellant’s second issue.
Issue 3: Ex Post Facto Application
In his third issue, raised in the alternative, appellant argues that if this Court
interprets the indecency statute to prohibit the conduct alleged in the third paragraph
of the indictment, i.e., B.G.’s hand touched his genitals, that construction will be an
unforeseeable, retroactive application of case law in violation of the constitutional
prohibitions against ex post facto laws. The State responds that appellant has not
presented a cognizable ex post facto claim. We agree with the State, and further
conclude that appellant’s due process rights have not been violated by our
interpretation of the statute.
–14– Ex Post Facto Prohibitions
Both the federal and state constitutions contain clauses prohibiting the
promulgation of any “ex post facto law.”4 U. S. CONST. art. I, § 10; TEX. CONST. art.
I, § 16; Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002). These constitutional
prohibitions are directed at the legislature, not the courts. Ortiz, 93 S.W.3d at 91; see
also Ex parte Heilman, 456 S.W.3d 159, 165 (Tex. Crim. App. 2015).
As a general rule, in assessing a claim based on ex post facto allegations,
courts look beyond the actor that is directly committing the alleged violation for
some legislative origin of the alleged violation. Ex parte Heilman, 456 S.W.3d at
165. A legislative body cannot escape the strictures of either the Texas or federal ex
post facto clause, but a defendant must be able to point to a legislative origin of the
alleged violation. Id. In order to raise a cognizable ex post facto claim, appellant
must show that the indecency statute itself operates retroactively, not that either the
trial court or this Court has retroactively applied the statute to an offense he
committed before its enactment. Ortiz, 93 S.W.3d at 91; Castillo v. State, 573
S.W.3d 869, 876 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d).
4 An ex post facto law is one that: (1) punishes as a crime an act previously committed that was innocent when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts greater punishment than the law attached to the criminal offense when committed; or (4) deprives a person charged with a crime of any defense available at the time the act was committed. See Peugh v. United States, 569 U.S. 530, 538–39 (2013); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002); Pomier v. State, 326 S.W.3d 373, 387 (Tex. App.—Houston [14th Dist.] 2010, no pet.). –15– Appellant does not argue that the statute itself operates retroactively, nor does
he point to a legislative origin of the alleged violation. As a result, he has failed to
state a cognizable ex post facto claim.
Due Process Implications
Rather than making a true ex post facto claim, appellant argues that, if we
interpret the statute as applying to his conduct, i.e., causing B.G.’s hand to touch his
genitals, we will be creating “an unforeseeable retroactive application” of the statute.
The State, in its brief to this Court, does not address this aspect of appellant’s
argument.
While ex post facto prohibitions do not apply to judicial actions, due process
of law may be violated when judicial action has an ex post facto effect. Bouie v. City
of Columbia, 378 U.S. 347, 353 (1964); Heilman, 456 S.W.3d at 166; Harber v.
State, 594 S.W.3d 438, 443 (Tex. App.—San Antonio 2019, pet. ref’d). An
unforeseeable judicial construction of a criminal statute, applied retroactively, can
function like an ex post facto law and result in a due process violation. Bouie, 378
U.S. at 353; Heilman, 456 S.W.3d at 166. However, this due process limitation is
not coextensive with the ex post facto prohibition; rather, it is rooted in the principle
that a criminal statute must give fair warning of the conduct it criminalizes and
protect against judicial enlargement of a criminal statute. Heilman, 456 S.W.3d at
166 (citing Rogers v. Tennessee, 532 U.S. 451, 457–62 (2001) which clarified that
the ex post facto clause does not apply to the judiciary, and due process does not –16– incorporate all of the ex post facto clause’s strictures); Harber, 594 S.W.3d at 443.
Essential to a complaint that a judicial construction of a statute had an ex post facto
effect is a showing that the judicial construction changed the law. See, e.g., Bouie,
378 U.S. at 354; Williams v. State, No. 05-00-00254-CR, 2000 WL 1659559, at *3
(Tex. App.—Dallas Nov. 6, 2000, no pet.) (not designated for publication).
We have not construed the indecency statute in a manner that changes the law.
Our application of the indecency statute does not result in a retroactive application
of that statute or in an expansion of the prohibitions of that statute without providing
proper notice. To the contrary, as stated above, the plain language of the statute
prohibits appellant’s alleged conduct, which the jury found to be true, i.e., causing
B.G.’s hand to touch his genitals. Loving, 401 S.W.3d at 648–49. We overrule
appellant’s third issue.
The trial court’s judgment is affirmed.
/Leslie Osborne/ LESLIE OSBORNE JUSTICE
DO NOT PUBLISH TEX. R. APP. P. 47.2(b) 181352F.U05
–17– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GLENN LOUIS BAKER, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-18-01352-CR V. Trial Court Cause No. 416-82158- 2014. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Osborne. Justices Whitehill and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered April 29, 2020.
–18–