Opinion issued February 11, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00088-CR ——————————— JOSIAH BLAKE TEINERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court Montgomery County, Texas 1 Trial Court Case No. 12-04-03539-CR
MEMORANDUM OPINION
Appellant, Josiah Blake Teinert, with an agreed punishment
recommendation from the State, pleaded guilty to the offense of continuous sexual
1 The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this court. See Misc. Docket No. 13–9008 (Tex. Jan. 17, 2013); TEX. GOV’T CODE ANN. §.73.001 (Vernon 2013) (authorizing transfer). abuse of a child.2 In accordance with the plea agreement, the trial court assessed
his punishment at confinement for twenty-five years. In his sole issue, appellant
contends that the trial court erred in denying his motion to declare the statute under
which he was convicted unconstitutional as applied to him.
We affirm.
Background
A Montgomery County grand jury returned a true bill of indictment,
accusing appellant of committing the offense of continuous sexual abuse of a child
from August 1, 2011 to February 29, 2012. Specifically, appellant pleaded guilty
to committing two or more acts of aggravated sexual assault against the
complainant “by having the child’s anus to contact or be penetrated by
[appellant’s] sexual organ.” Appellant turned eighteen years of age in December
2011.
Prior to entering his plea, appellant filed a motion “contesting the
constitutionality,” as applied to him, of the statute under which he was convicted.
He argued that because he was under the age of eighteen at the time he committed
some of the predicate acts, the punishment range applicable to the offense
“constitutes cruel and unusual punishment . . . , contrary to the United States and
Texas constitutions.” He further asserted that he was “denied his right to have a
2 See TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2013).
2 jury assess [community supervision] or some appropriate number of years less than
25.”
At the plea hearing, the trial court considered appellant’s motion. Appellant
testified that he began sexually assaulting the complainant when he was fifteen
years old and she was four, he continued to assault her every two to three weeks
for three years, and he committed each of the assaults before he turned eighteen,
except for one. At the conclusion of the hearing, the trial court denied appellant’s
motion.
Standard of Review
We review the constitutionality of a criminal statute de novo as a question of
law. Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). When presented with a challenge to the constitutionality of a
statute, we presume that the statute is valid and the legislature has not acted
unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.
2002). The party challenging the statute has the burden to establish its
unconstitutionality. Id. We must uphold the statute if we can apply a reasonable
construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419
(Tex. Crim. App. [Panel Op.] 1979); see also Maloney, 294 S.W.3d at 626 (stating
that if statute can be interpreted in two different ways, one of which sustains its
validity, we apply interpretation that sustains its validity).
3 Constitutionality
In his sole issue, appellant argues that the trial court erred in denying his
motion to declare Texas Penal Code section 21.02(b) unconstitutional as applied to
him because he was under the age of eighteen at the time he committed most of the
predicate acts against the complainant; the statute fails to distinguish between
seventeen- and eighteen-year-olds, which are treated differently under the law; and
subjecting him to confinement for a mandatory minimum of twenty-five years,
without the possibility of parole and without considering the “mitigating factors of
youth,” violates the Eighth Amendment. See Miller v. Alabama, —U.S.—, 132 S.
Ct. 2455, 2467–68 (2012); Graham v. Florida, 560 U.S. 48, 69–79, 130 S. Ct.
2011, 2027–33 (2010),
“A litigant raising only an ‘as applied’ challenge concedes the general
constitutionality of the statute, but asserts that the statute is unconstitutional as
applied to his particular facts and circumstances.” State ex rel. Lykos v. Fine, 330
S.W.3d 904, 910 (Tex. Crim. App. 2011). Because a statute may be valid as
applied to one set of facts and invalid as applied to another, a defendant must show
that the challenged statute was unconstitutionally applied to him. Id. It is not
sufficient to show that a statute “may” operate unconstitutionally against the
challenger or someone in a similar position in another case. Id. at 912. Courts
4 must evaluate the statute as it has been applied in practice against the particular
challenger. Id.
A person commits the offense of continuous sexual abuse of a child if,
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, . . . ; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2013) (Emphasis added). An
offense under section 21.02(b) is a first-degree felony, punishable by confinement
for life, or for a term of twenty-five to ninety-nine years. See id. §.21.02(h). And a
person serving a sentence under section 21.02 is not eligible for parole. TEX.
GOV’T CODE ANN. §.508.145(a) (Vernon Supp. 2013).
Appellant notes that section 21.02(b), as highlighted, does not distinguish
between an actor who is seventeen years of age and one who is eighteen. He
asserts that although “Texas law treats 17 year olds as adults,” one is not an adult
until the age of eighteen for purposes of the Eighth Amendment. See TEX. FAM.
CODE ANN. §.51.02(2)(A) (Vernon Supp. 2013) (defining “child” under Juvenile
Justice Code as one who is “ten years of age or older and under 17 years of age.”);
Miller, 132 S. Ct. at 2460 (considering “juvenile” offenders to be those under age
eighteen). Under section 21.02(b), regardless of whether appellant was seventeen
or eighteen at the time that he committed the acts against the complainant, he is
5 subject to confinement for a minimum of twenty-five years, without the possibility
of parole. See TEX. PENAL CODE ANN. §.21.02(h); TEX. GOV’T CODE ANN.
§.508.145(a).
Appellant argues, without citation to authority, that because he committed
most of the predicate acts before he reached the age of eighteen, 3 he is a juvenile
for Eighth Amendment purposes. The State asserts that the offense of continuous
sexual abuse of a child is “‘complete’ only once the abuse stops, not after any
individual predicate act,” and it is undisputed that appellant did not stop his acts
until after he reached the age of eighteen.
The Eighth Amendment’s prohibition of cruel and unusual punishment
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued February 11, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00088-CR ——————————— JOSIAH BLAKE TEINERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court Montgomery County, Texas 1 Trial Court Case No. 12-04-03539-CR
MEMORANDUM OPINION
Appellant, Josiah Blake Teinert, with an agreed punishment
recommendation from the State, pleaded guilty to the offense of continuous sexual
1 The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this court. See Misc. Docket No. 13–9008 (Tex. Jan. 17, 2013); TEX. GOV’T CODE ANN. §.73.001 (Vernon 2013) (authorizing transfer). abuse of a child.2 In accordance with the plea agreement, the trial court assessed
his punishment at confinement for twenty-five years. In his sole issue, appellant
contends that the trial court erred in denying his motion to declare the statute under
which he was convicted unconstitutional as applied to him.
We affirm.
Background
A Montgomery County grand jury returned a true bill of indictment,
accusing appellant of committing the offense of continuous sexual abuse of a child
from August 1, 2011 to February 29, 2012. Specifically, appellant pleaded guilty
to committing two or more acts of aggravated sexual assault against the
complainant “by having the child’s anus to contact or be penetrated by
[appellant’s] sexual organ.” Appellant turned eighteen years of age in December
2011.
Prior to entering his plea, appellant filed a motion “contesting the
constitutionality,” as applied to him, of the statute under which he was convicted.
He argued that because he was under the age of eighteen at the time he committed
some of the predicate acts, the punishment range applicable to the offense
“constitutes cruel and unusual punishment . . . , contrary to the United States and
Texas constitutions.” He further asserted that he was “denied his right to have a
2 See TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2013).
2 jury assess [community supervision] or some appropriate number of years less than
25.”
At the plea hearing, the trial court considered appellant’s motion. Appellant
testified that he began sexually assaulting the complainant when he was fifteen
years old and she was four, he continued to assault her every two to three weeks
for three years, and he committed each of the assaults before he turned eighteen,
except for one. At the conclusion of the hearing, the trial court denied appellant’s
motion.
Standard of Review
We review the constitutionality of a criminal statute de novo as a question of
law. Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). When presented with a challenge to the constitutionality of a
statute, we presume that the statute is valid and the legislature has not acted
unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.
2002). The party challenging the statute has the burden to establish its
unconstitutionality. Id. We must uphold the statute if we can apply a reasonable
construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419
(Tex. Crim. App. [Panel Op.] 1979); see also Maloney, 294 S.W.3d at 626 (stating
that if statute can be interpreted in two different ways, one of which sustains its
validity, we apply interpretation that sustains its validity).
3 Constitutionality
In his sole issue, appellant argues that the trial court erred in denying his
motion to declare Texas Penal Code section 21.02(b) unconstitutional as applied to
him because he was under the age of eighteen at the time he committed most of the
predicate acts against the complainant; the statute fails to distinguish between
seventeen- and eighteen-year-olds, which are treated differently under the law; and
subjecting him to confinement for a mandatory minimum of twenty-five years,
without the possibility of parole and without considering the “mitigating factors of
youth,” violates the Eighth Amendment. See Miller v. Alabama, —U.S.—, 132 S.
Ct. 2455, 2467–68 (2012); Graham v. Florida, 560 U.S. 48, 69–79, 130 S. Ct.
2011, 2027–33 (2010),
“A litigant raising only an ‘as applied’ challenge concedes the general
constitutionality of the statute, but asserts that the statute is unconstitutional as
applied to his particular facts and circumstances.” State ex rel. Lykos v. Fine, 330
S.W.3d 904, 910 (Tex. Crim. App. 2011). Because a statute may be valid as
applied to one set of facts and invalid as applied to another, a defendant must show
that the challenged statute was unconstitutionally applied to him. Id. It is not
sufficient to show that a statute “may” operate unconstitutionally against the
challenger or someone in a similar position in another case. Id. at 912. Courts
4 must evaluate the statute as it has been applied in practice against the particular
challenger. Id.
A person commits the offense of continuous sexual abuse of a child if,
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, . . . ; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2013) (Emphasis added). An
offense under section 21.02(b) is a first-degree felony, punishable by confinement
for life, or for a term of twenty-five to ninety-nine years. See id. §.21.02(h). And a
person serving a sentence under section 21.02 is not eligible for parole. TEX.
GOV’T CODE ANN. §.508.145(a) (Vernon Supp. 2013).
Appellant notes that section 21.02(b), as highlighted, does not distinguish
between an actor who is seventeen years of age and one who is eighteen. He
asserts that although “Texas law treats 17 year olds as adults,” one is not an adult
until the age of eighteen for purposes of the Eighth Amendment. See TEX. FAM.
CODE ANN. §.51.02(2)(A) (Vernon Supp. 2013) (defining “child” under Juvenile
Justice Code as one who is “ten years of age or older and under 17 years of age.”);
Miller, 132 S. Ct. at 2460 (considering “juvenile” offenders to be those under age
eighteen). Under section 21.02(b), regardless of whether appellant was seventeen
or eighteen at the time that he committed the acts against the complainant, he is
5 subject to confinement for a minimum of twenty-five years, without the possibility
of parole. See TEX. PENAL CODE ANN. §.21.02(h); TEX. GOV’T CODE ANN.
§.508.145(a).
Appellant argues, without citation to authority, that because he committed
most of the predicate acts before he reached the age of eighteen, 3 he is a juvenile
for Eighth Amendment purposes. The State asserts that the offense of continuous
sexual abuse of a child is “‘complete’ only once the abuse stops, not after any
individual predicate act,” and it is undisputed that appellant did not stop his acts
until after he reached the age of eighteen.
The Eighth Amendment’s prohibition of cruel and unusual punishment
“guarantees individuals the right not to be subjected to excessive sanctions.”
Miller, 132 S. Ct. at 2463. In Miller, the Supreme Court, after discussing at length
the ways in which “children are constitutionally different from adults for purposes
of sentencing,” held that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.” Id. at
2464–66, 2469. The Court explained that the mandatory nature of the penalty
3 Appellant also asserts that “[s]ome of the offenses occurred while [he] was 15 years old . . . .” However, the indictment charges appellant with having committed the offense during the period from August 2011 to February 2012. And appellant testified that he turned eighteen in December 2011. Thus, he was not accused of having committed any of the predicate acts prior to the age of seventeen.
6 schemes before it “prevent[ed] [a] sentencer from taking into account” the
“mitigating qualities of youth” and “posed too great a risk of disproportionate
punishment.” Id. at 2466–69. The Court did not “foreclose a sentencer’s ability” to
impose on a juvenile offender the punishment of life in prison without the
possibility of parole; however, it held that sentencers must “take into account how
children are different, and how those differences counsel against irrevocably
sentencing [the juvenile offender] to a lifetime in prison.” Id. at 2469.
In Graham, the Court, after noting the characteristics of youth and how they
weaken the rationales for punishment, held that the Eighth Amendment prohibits a
life sentence without the possibility of parole for an offender who is under the age
of eighteen when he commits a non-homicide offense. 560 U.S. at 68–79, 130 S.
Ct. at 2026–32 (noting that “[l]ife-without-parole terms share some characteristics
with death sentences that are shared by no other sentences”).
The Court’s holdings in Miller and Graham were narrowly tailored to
address mandatory sentences of life imprisonment without the possibility of parole
for juveniles. See Miller, 132 S. Ct. at 2464–66, 2469; Graham, 560 U.S. at 68–
79, 130 S. Ct. at 2026–32. Here, appellant was not assessed the punishment of
confinement for life, and Miller and Graham do not apply. Regardless, appellant
asserts that although he was not assessed “a mandatory life sentence without
parole,” he did face “a mandatory minimum of 25 years without parole.”
7 However, he has not cited any authority, nor have we found any, extending the
holdings in Miller or Graham to a sentence less severe than life.
Appellant further asserts that had he not chosen to plead guilty, he might
possibly have received a life sentence without parole. However, we must evaluate
the statute as it was applied to appellant. See Fine, 330 S.W.3d at 912.
We conclude that appellant has not demonstrated that section 21.02(b) is
unconstitutional as applied to him in this case. See Rodriguez, 93 S.W.3d at 69.
Accordingly, we overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).