IN THE SUPREME COURT OF TEXAS ══════════ No. 17-0819 ══════════
STATE OF TEXAS, PETITIONER,
v.
R.R.S., A JUVENILE, RESPONDENT
══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS ══════════════════════════════════════════
Argued January 7, 2020
JUSTICE BOYD delivered the opinion of the Court.
Under Texas law, a child younger than fourteen cannot legally “consent to sex” and thus,
as a matter of law, cannot commit the offense of prostitution. In re B.W., 313 S.W.3d 818, 822
(Tex. 2010). But can a child under fourteen commit the offense of aggravated sexual assault? In
this juvenile-delinquency case, R.R.S. pleaded “true” to allegations that he sexually assaulted his
younger brothers when he was thirteen years old. Based on his admissions and plea, the trial court
found him delinquent. But before the disposition hearing, R.R.S. filed a motion to withdraw his
plea and requested a new trial. The trial court denied the motion. The court of appeals reversed,
finding the trial court abused its discretion because R.R.S. was not adequately informed about his
potential defenses when he entered his plea, particularly the defense that he could not have
committed aggravated sexual assault because he could not legally “consent to sex.” 536 S.W.3d
67, 80 (Tex. App.—El Paso 2017). We disagree that a child’s legal inability to consent to sex renders the child legally incapable of committing aggravated sexual assault. Finding that the trial
court did not abuse its discretion by denying R.R.S.’s request to withdraw his plea, we reverse the
court of appeals’ judgment and reinstate the trial court’s judgment adjudicating R.R.S. delinquent.
I. Background
Thirteen-year-old R.R.S. confessed to his mother that he sexually assaulted his five-year-
old twin brothers. His mother contacted the police, who notified the Department of Family and
Protective Services. The Department interviewed the twins, who confirmed the assaults. The State
filed a petition to adjudicate R.R.S. as delinquent, alleging that he committed two acts of
aggravated sexual assault on each of his brothers. See TEX. PENAL CODE § 22.021(a) (defining
aggravated sexual assault).
The trial court appointed counsel for R.R.S. Prior to the adjudication hearing, R.R.S. filed
a written stipulation admitting to the allegations, waiving his right to trial, and acknowledging his
understanding that, in light of his admissions, he could be placed on probation or committed to the
custody of the Juvenile Justice Department. At the adjudication hearing, the trial court advised
R.R.S. of his rights, and R.R.S. stated that he understood them. When the court asked R.R.S. if he
knew what a jury trial was, R.R.S. answered, “It’s where the people will have a say on what
happened. . . . Where you have people decide for like if you’re guilty or not.” R.R.S. confirmed
that he did not “want a jury trial,” and the court verbally admonished him that he would receive
“some type of sanction” if he pleaded “true” to the charges.
R.R.S. pleaded “true” and verbally confirmed that he was pleading “true” because “it is
true.” He stated that no one forced him to plead true or promised him anything for his plea. He
also admitted that he signed the written waiver of his own free will. R.R.S.’s counsel was present 2 throughout the hearing and agreed to his plea and waiver. The trial court accepted R.R.S.’s plea,
entered an order finding that R.R.S. had engaged in the conduct alleged, and scheduled a
disposition hearing to occur about a month later.
Before the disposition hearing, R.R.S. hired a new attorney, who filed a motion to withdraw
the stipulation and requested a new trial so that R.R.S. could “challenge the factual and legal
sufficiency of the evidence in a Jury Trial.” At the hearing on R.R.S.’s motion, his counsel argued
that R.R.S.’s stipulation was “per se insufficient” to support the adjudication. He also argued that
“mitigating factors” existed that could “reduce [R.R.S.’s] culpability,” specifically asserting that
R.R.S. was himself a victim of sexual abuse by his father. Counsel admitted that R.R.S. had “just
change[d] his mind” about his plea, but asserted that R.R.S. did not fully understand his
“alternatives in preparing for trial” or that he could potentially have to register as a sex offender
“for the rest of his life.” Citing a variety of constitutional protections, counsel urged the court to
grant a new trial so that a jury could determine “what [R.R.S.’s] intent was.”
The trial court denied R.R.S.’s motion and rescheduled the disposition hearing. Prior to
that hearing, the juvenile probation department issued a pre-disposition report recommending that
the court place R.R.S. on intensive supervised probation until his eighteenth birthday. The report
explained that, according to R.R.S. and his mother, R.R.S’s father (who himself was sexually
abused by a family member when he was five) repeatedly sexually abused R.R.S. from the time
R.R.S. was five until he was seven, separated from R.R.S.’s mother, and committed suicide about
two years before R.R.S. assaulted his brothers. According to R.R.S., he was “very close to his
father before his death” and was “curious” and “thinking about his own sexual abuse that his father
imposed on him” while he was assaulting his brothers. R.R.S. expressed that he was “sorry for his
3 actions because his brothers did not deserve what he did to them, as well as, what it has caused his
family.”
At the disposition hearing, the juvenile probation officer testified that, according to
R.R.S.’s mother, she and R.R.S. were appealing the adjudication “not because they’re denying the
offense or the need for the juvenile to get help to address this sexual behavior[], but because [of]
the long-term effect this type of adjudication is going to have on her son.” R.R.S.’s mother testified
that R.R.S. “kind of goes off of [her] guidance” and that she would not have advised R.R.S. to
proceed with the stipulation had she known “how the law could be applied or how testimony could
be presented under the law.” She confirmed her belief that R.R.S. was “not fully informed of what
. . . the consequences would be in the future.” 1 At the end of the hearing, the State joined R.R.S.’s
request that the court defer any decision on whether he be required to register as a sex offender
until he completed probation and treatment and turned eighteen. Consistent with the State’s
recommendation, the trial court ordered R.R.S. to serve intensive supervision probation until his
eighteenth birthday and deferred any decision on sex-offender registration.
The court of appeals reversed, holding that the trial court abused its discretion by denying
R.R.S.’s motion to withdraw his stipulation and for a new trial. According to the court of appeals,
the evidence was legally insufficient to support the trial court’s finding that R.R.S.’s plea was
“knowing and voluntary.” 536 S.W.3d at 80. In particular, the court reasoned that R.R.S.’s counsel
should have advised R.R.S. that he had a defense to the charges because, as a child under fourteen,
1 The court granted the State’s relevance objection to the mother’s testimony but permitted the mother to complete her testimony to support a bill of review. Neither party addresses the admissibility or relevance of the mother’s testimony on appeal.
4 he could not legally “consent to sex.” Id. at 78 (citing B.W., 313 S.W.3d at 821), 80. Although the
court acknowledged that B.W. involved a charge of prostitution, not aggravated sexual assault, it
reasoned that B.W.’s holding was broad enough to apply to any “offense that includes consent to
sex as one of its essential elements.” Id. at 78 (citing B.W., 313 S.W.3d at 824). The court
concluded that R.R.S. should have been informed of this defense “and other pertinent defensive
theories applicable to his circumstances.” Id. at 80. Because he was not, he “misunderstood
defenses he could assert that he nonetheless waived when he pled true and judicially confessed to
committing the underlying sexual assault offense.” Id. The court remanded for a new trial so the
parties could “address directly, in the first instance, the question of whether the holding of In re
B.W. extends to the offense of aggravated sexual assault.” Id.
We granted the State’s petition for review.
II. “Consent to Sex”
The decision whether to allow a juvenile to withdraw a “true” plea after a delinquency
adjudication rests within the trial court’s sound discretion. Jackson v. State, 590 S.W.2d 514, 515
(Tex. Crim. App. [Panel Op.] 1979); In re S.L.L., 906 S.W.2d 190, 193 (Tex. App.—Austin 1995,
no writ) (juvenile delinquency case). When, as here, the trial court properly admonished the
juvenile at the beginning of the adjudication hearing, 2 the juvenile bears the burden of proving
that, despite the court’s admonishments, he did not fully understand the consequences and was
misled or harmed “such that the plea was rendered involuntary.” Martinez v. State, 981 S.W.2d
2 See TEX. FAM. CODE § 54.03(b) (requiring juvenile court to explain to the juvenile and his parent or guardian the allegations, the potential consequences of the conduct, and the right to challenge the allegations through trial). The court of appeals held the trial court properly admonished R.R.S. and his mother in this case, 536 S.W.3d at 74–75, and R.R.S. does not dispute that holding.
5 195, 197 (Tex. Crim. App. 1998). The court of appeals held that the trial court abused its discretion
here because R.R.S. was never advised of his potential defense under B.W. The State argues that
the court of appeals erred because B.W. does not provide a defense to charges of aggravated sexual
assault. 3 We agree with the State.
The juvenile involved in B.W. was arrested when she offered to engage in sexual conduct
with an undercover police officer in exchange for twenty dollars. B.W., 313 S.W.3d at 819. After
discovering that B.W. was only thirteen years old, the State initiated a juvenile proceeding to
declare her delinquent for engaging in prostitution. B.W. pleaded true to the allegations, the trial
court found her delinquent, and the court of appeals affirmed. Id. We reversed, holding that B.W.
could not have committed the offense of prostitution because “in Texas, ‘a child under fourteen
cannot legally consent to sex.’” Id. at 821 (quoting May v. State, 919 S.W.2d 422, 424 (Tex. Crim.
App. 1996)).
We explained in B.W. that the “notion that an underage child cannot legally consent to sex
is of longstanding origin and derives from the common law,” but the Texas legislature “has
incorporated this rationale into the Texas Penal Code.” Id. at 820–21. In particular, we noted that,
3 The State’s brief first asserts that the court of appeals erred by raising B.W. sua sponte, noting that R.R.S. never mentioned B.W. or his legal inability to consent to sex in the trial court or in his briefing to the court of appeals. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209–10 (Tex. 1990) (per curiam) (addressing preservation requirement and the “corollary” rule prohibiting appellate courts from raising “grounds for reversal sua sponte”). In response, R.R.S. notes that he argued broadly to the court of appeals that “his plea was [made] without adequate understanding of any defenses available to him,” and asserts that the court of appeals did not err by construing his brief liberally. See TEX. R. APP. P. 38.9. In light of the positions the State has taken before this Court, however, we need not decide whether R.R.S. preserved the B.W. issue or whether the court of appeals erred by raising it sua sponte. Although the State’s brief initially raises this complaint, it later “urges the Court to overrule the court of appeal’s opinion that In re B.W. applies to non-prostitution cases and clarify that In re B.W. should be applied narrowly to cases where prostitution is charged and not generally to crimes of sexual violence.” When asked about this in oral argument, the State’s counsel again urged us to “provide some guidance as to the proper interpretation of In re B.W.,” noting that both parties fully briefed the issue to this Court. Because we understand the State to have waived any preservation complaint, we will address the B.W. issue as both parties have requested. 6 under the penal code, a person who intentionally or knowingly engages in non-consensual sexual
conduct with another person commits a “sexual assault,” but the state need not prove the other
person’s lack of “consent” if the other person is a child under the age of seventeen. Id. at 821
(citing TEX. PENAL CODE § 22.011). When the other person is younger than seventeen but older
than thirteen, the code provides certain defenses under which “the child’s subjective agreement or
assent becomes the main issue in determining whether or not a crime has been committed.” Id.
(citing TEX. PENAL CODE § 22.011(e) (providing defenses when the accused is no more than three
years older than the child or is married to the child)). But the code provides no such defenses when
the child is younger than fourteen. Instead, it elevates the crime from sexual assault to aggravated
sexual assault. Id. (citing TEX. PENAL CODE §§ 22.011, .021). Concluding that these provisions
confirm the legislature’s view that children under the age of fourteen “lack the capacity to consent
to sex as a matter of law,” we held that “a child under the age of fourteen may not be charged with”
prostitution. Id. at 826.
Relying on B.W., the court of appeals concluded here that, because “children under fourteen
cannot consent to sex, the rationale then follows that the state may not adjudicate such a young
offender for an offense that includes consent to sex as one of its essential elements.” 536 S.W.3d
at 78. The court then concluded that aggravated sexual assault qualifies as such an offense because
the aggravated sexual assault statute was “central to [B.W.’s] holding . . . that the Legislature did
not intend to prosecute children under fourteen for offenses that include legal capacity to consent
to sex.” Id. 4 The court thus concluded that R.R.S. did not “make a voluntary, knowing, and
4 Relying on the El Paso court of appeals’ decision here, the Fourteenth District Court of Appeals in Houston also recently held, “Because a 13-year-old child cannot knowingly engage[] in a sexual act as a matter of law, [the 7 informed waiver of his constitutional rights” because he was not fully “informed prior to the entry
of his plea of true of the potential defense of lack of capacity to consent to sex as a matter of law.”
Id. at 80.
While we agree that section 22.021 (the aggravated sexual assault statute) was “central” to
our decision in B.W., our reasoning in B.W. does not support the court of appeals’ ultimate
conclusion. We explained in B.W. that sections 22.021 (the aggravated sexual assault statute) and
22.011 (the sexual assault statute) confirm the legislature’s recognition that children under fourteen
cannot “consent to sex,” but we never suggested that either of those statutes requires proof that the
accused consented to sex. Rather, we explained that the statutes confirm the legislature’s
recognition that children under fourteen cannot consent to sex by providing no defense when the
victim is younger than fourteen. B.W., 313 S.W.3d at 821. Whether a child’s legal inability to
consent to sex renders the child incapable of committing a particular offense depends on whether
the accused’s consent is an element of the offense, 5 not whether the victim’s consent may provide
a defense.
Similar to the offense of prostitution, the offense of aggravated sexual assault requires that
the accused acted “intentionally or knowingly.” Compare TEX. PENAL CODE § 22.021 (requiring
that the accused act “intentionally or knowingly” to commit aggravated sexual assault) with id.
§ 43.02 (requiring that the accused act “knowingly” to commit prostitution). A person acts
child] cannot be prosecuted for aggravated sexual assault under section 22.021 of the Penal Code.” Matter of T.V.T., No. 14-18-00807-CV, 2019 WL 6974971, at *3 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no pet. h.). 5 See, e.g., In re H.L.A., No. 01-12-00912-CV, 2014 WL 1101584, at *6 (Tex. App.—Houston [1st Dist.] Mar. 20, 2014, no pet.) (mem. op.) (holding that thirteen-year-old’s legal inability to consent to sex did not render him incapable of committing offense of “unlawful restraint” because “the elements of unlawful restraint . . . do not require proof that [the child] engaged or offered or agreed to engage in sexual conduct”).
8 “intentionally” when “it is his conscious objective or desire to engage in the conduct or cause the
result,” and acts “knowingly” when “he is aware of the nature of his conduct or that the
circumstances exist . . . [or] that his conduct is reasonably certain to cause the result.” Id. § 6.03.
Both offenses require a similar desire or awareness on the accused’s part, but the distinction lies
in what the offenses require the accused to be aware of.
As we explained in B.W., a person commits the offense of prostitution when the person
“knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee.” B.W., 313
S.W.3d at 820 (quoting TEX. PENAL CODE § 43.02(a)(1)). 6 The offense requires not just that the
person engaged in sexual conduct, but that the person engaged in sexual conduct, or offered or
agreed to do so, as part of an agreed exchange with another (“for a fee”). As we repeatedly noted
throughout our opinion in B.W., the offense of prostitution requires that the accused reached, or
offered to reach, some form of “agreement” with the other person to engage in sexual conduct. See
B.W., 313 S.W.3d at 819 (noting that B.W. admitted she had “knowingly agree[d] to engage in
sexual conduct . . . for a fee”) (emphasis added), 820 (explaining that “‘knowing agree[ment]’
suggests agreement with an understanding of the nature of what one is agreeing to do” and that
“younger children lack the capacity to appreciate the significance or the consequences of agreeing
to sex”) (emphasis added), 821–22 (rejecting idea that children under fourteen can “understand the
nature and consequences of their conduct when they agree to commit a sex act for money”)
6 Since our decision in B.W., the legislature has amended section 43.02 to provide that a “person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.” TEX. PEN. CODE § 43.02(a) (amended by Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 36, eff. September 1, 2017. Reenacted and amended by Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 37, eff. September 1, 2017.).
9 (emphasis added), 822 (relying on the “longstanding rule that children under fourteen lack the
capacity to understand the significance of agreeing to sex”) (emphasis added).
The requirement that the accused “agreed” or offered to “agree” with another person is
what makes the accused’s ability to “consent to sex” essential to the offense of prostitution. While
proving consent (or a lack of consent) to sexual conduct is often difficult and may depend on a
wide variety of circumstances, 7 an agreement or mutual assent between two or more persons lies
at the heart of what it means to “consent.” See, e.g., Consent, BLACK’S LAW DICTIONARY (11th ed.
2019) (“A voluntary yielding to what another proposes or desires; agreement, approval, or
permission regarding some act or purpose. . . .”). As we explained in B.W., younger children cannot
commit the offense of prostitution because they “lack the capacity to appreciate the significance
or the consequences of agreeing to sex, and thus cannot give meaningful consent.” B.W., 313
S.W.3d at 820 (emphases added). Because they “lack the capacity to understand the significance
of agreeing to sex,” and thus “cannot consent to sex as a matter of law,” the child’s “agreement”
required to commit prostitution cannot “reach the ‘knowingly’ standard the statute requires.” Id.
at 822 (emphasis added).
The offense of aggravated sexual assault, by contrast, does not require that the accused
reach or offer to reach any kind of agreement with the other person. To the contrary, the offense
only occurs if there is no agreement between the accused and the other person. TEX. PEN. CODE
§ 22.021. Under section 22.011, a person commits a sexual assault if the person intentionally or
knowingly (A) “causes the penetration of the anus or sexual organ of another person by any
7 See, e.g., TEX. PEN. CODE § 22.011(b) (describing various circumstances under which a sexual assault occurs “without the consent of the other person”). 10 means,” (B) “causes the penetration of the mouth of another person by the sexual organ of the
actor,” or (C) “causes the sexual organ of another person . . . to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor.” Id. § 22.011(a)(1). If the other person
is an adult, the conduct constitutes sexual assault if the accused acts “without that person’s
consent,” id., but if the other person is a child under seventeen, the conduct constitutes sexual
assault regardless of whether the other person consented, id. § 22.011(a)(2), (c)(1); see Hernandez
v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993) (en banc) (“[C]onsent (or nonconsent) is
not an element in proving [sexual assault under section 22.011(a)(2)].”). And if the other person
is younger than fourteen, the accused cannot assert any consent-based defenses, and the offense is
elevated to an aggravated sexual assault. Id. §§ 22.011(c), .021(a)(2)(B). In short, whether the
accused committed a sexual assault or an aggravated sexual assault may depend on whether the
other person agreed with the accused to engage in the conduct, but it does not depend on whether
the accused agreed with the other person to do so.
Here, the State alleged, and R.R.S. admitted, that he caused his sexual organ to penetrate
his five-year-old brother’s anus and caused his other five-year-old brother’s sexual organ to
penetrate R.R.S.’s mouth. Such conduct constitutes aggravated sexual assault under section
22.021(a) regardless of whether either party consented or “agreed” to the conduct. All that the
statute requires is that R.R.S. “desire[d] to engage in the conduct or cause the result” or was “aware
that his conduct [was] reasonably certain to cause the result.” Id. § 6.03(a), (b). Unlike the offense
of prostitution, which requires proof that the accused reached an agreement with another person to
engage in sexual conduct or offered to reach such an agreement, R.R.S.’s legal inability to “consent
to sex” did not render him illegally incapable of committing the offense of aggravated sexual
11 assault. As a result, the court of appeals erred in holding that R.R.S.’s lack of knowledge of his
inability to consent to sex required the trial court to grant his motion to withdraw his plea and for
a new trial.
III. Other Grounds
Although R.R.S. did not raise his legal inability to consent to sex in the trial court, he did
raise other grounds that he alleged caused his “true” plea to be involuntary. The court of appeals
did not reach these grounds. In the interest of judicial economy, we address them here instead of
remanding to the court of appeals. See TEX. R. APP. P. 53.4; RSL Funding, LLC v. Newsome, 569
S.W.3d 116, 124 (Tex. 2018).
R.R.S. first argues that he was not adequately informed that, by pleading “true,” he might
have to register as a sex offender. 8 But under Texas law, required registration as a sex offender is
a “collateral consequence,” and the accused’s ignorance of a collateral consequence does not
render a plea involuntary. See, e.g., Anderson v. State, 182 S.W.3d 914, 917, 921 (Tex. Crim. App.
2006) (en banc) (“Considering the record as a whole, we have fair assurance that no substantial
right involving the appellant’s decision to plead guilty was affected by the trial court’s error in
failing to admonish him of the registration requirement for convicted sex offenders.”). 9 R.R.S.
After the court of appeals rendered its decision in this case, R.R.S. successfully completed his probation 8
requirements and the trial court excused him from registering as a sex offender. 9 See also State v. Collazo, 264 S.W.3d 121, 128 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Anderson, 182 S.W.3d at 918 (“The failure to admonish a defendant as to the non-punitive consequence of mandatory sex offender registration does not violate the due process clause or render his plea involuntary.”)); Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.—Dallas 2001, no pet.) (“[W]e hold that the trial court’s failure to admonish appellant on the sex offender registration requirement constitutes harmless error and did not render his plea of guilty involuntary.”); Guzman v. State, 993 S.W.2d 232, 236 (Tex. App.—San Antonio 1999, pet. ref’d) (“[S]uch registration is a collateral consequence of a guilty plea, not a direct consequence, and the trial court’s failure to admonish a defendant of such requirement does not invalidate a guilty plea.”). 12 does not dispute that the trial court properly admonished him regarding the direct consequences of
his plea, and “when a defendant is fully advised of the direct consequences of [his] plea, [his]
ignorance of a collateral consequence does not render the plea involuntary.” Ex parte Morrow, 952
S.W.2d 530, 536 (Tex. Crim. App. 1997). As a result, R.R.S.’s ignorance of the fact that the trial
court could have required him to register as a sex offender did not require the trial court to grant
his new-trial motion.
R.R.S. next argues that the evidence that his father sexually abused him and that he was
thinking of that abuse when he assaulted his brothers created “a factual dispute” regarding “his
intentions during the commission of the offense.” We agree with the State, however, that such
evidence—while certainly relevant as mitigating evidence at the time of disposition—could not
serve to negate the intent that R.R.S. himself admitted. See, e.g., Cornet v. State, 417 S.W.3d 446,
450 (Tex. Crim. App. 2013) (distinguishing statute’s intent requirement from medical-care
justification). R.R.S. never disputed that he intentionally and knowingly engaged in the conduct
that constitutes aggravated sexual assault. The evidence regarding his thoughts and motivations
for doing so did not negate his intent and knowledge and did not require the trial court to grant his
new-trial motion.
Finally, R.R.S. argues that the evidence before the trial court at the time of his adjudication
was insufficient to support the trial court’s finding. As we have described, that evidence included
R.R.S.’s written waiver, stipulation, and admission, followed by his verbal plea after the trial court
duly admonished him. In the absence of any contrary record evidence, a juvenile’s stipulation to
the charges and admission to the allegations is sufficient on its own to support the trial court’s
adjudication of delinquency. See In re M.C.S., Jr., 327 S.W.3d 802, 805 (Tex. App.—Fort Worth
13 2010, no pet.) (“[T]he stipulation comprises sufficient evidence to support the statutory elements
of [the crime].”); Matter of R.L.S., 707 S.W.2d 726, 728 (Tex. App.—Beaumont 1986, no writ)
(“The plea of true and the stipulation is sufficient for a judicial confession.”). We conclude that
the trial court did not abuse its discretion by adjudicating R.R.S. delinquent based on the record
before it.
III. Conclusion
We hold that the trial court did not abuse its discretion by denying R.R.S.’s motion to
withdraw his stipulations and admissions and requesting a new trial. We reverse the court of
appeals’ judgment and reinstate the trial court’s judgment.
_____________________ Jeffrey S. Boyd Justice
Opinion delivered: March 27, 2020