Opinion
No. 05-10-00561-CR
Opinion Filed June 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F10-51955-Q.
Before Justices RICHTER, LANG, and FILLMORE.
OPINION
Sylvia Elizabeth Jackson appeals her felony prostitution conviction. After Jackson pleaded guilty to prostitution and true to the alleged enhancements, the trial court assessed punishment at eighteen months' confinement in a state jail facility. See Tex. Penal Code Ann. § 43.02(c) (West 2011) (if actor previously convicted three or more times under prostitution statute, current offense is state jail felony). In a single issue, Jackson contends that application of section 43.02 of the penal code (the prostitution statute) to her conduct violates her substantive due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. See U. S. Const. amends. V ("No person shall be . . . deprived of life, liberty, or property, without due process of law. . . .") XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ."). We affirm the trial court's judgment. Texas Penal Code section 43.02 entitled "Prostitution" provides: (a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for a fee.Tex. Penal Code Ann. § 43.02(a). Jackson does not dispute that she engaged in an act that constitutes the offense of prostitution. Jackson has been convicted of multiple offenses of prostitution over a six to seven year period. According to Jackson, she is not mentally ill, does not have a drug or alcohol problem, and is a prostitute because she "likes to shop and the idea of having money in [her] pocket." Jackson contends on appeal that the prostitution statute is unconstitutional, as applied to her, because the statute impinges on her right to engage in consensual sexual activity, including "commercial activity that may be related to consensual sexual activity." Jackson acknowledges she did not raise her challenge to the constitutionality of the prostitution statute in the trial court. However, Jackson argues that, for two reasons, her as-applied challenge to the prostitution statute need not have been presented to the trial court and may be raised for the first time on appeal. First, Jackson argues she has a "fundamental right" under the United States Constitution to engage in consensual sexual activity, including commercial activity that may be related to consensual sexual activity (i.e., prostitution), and government abridgment of a fundamental right is an issue that may be asserted for the first time on appeal. Jackson contends her constitutional challenge to the prostitution statute is based on Lawrence v. Texas, 539 U.S. 558 (2003) "and its progeny, under the Fourteenth Amendment to the United States Constitution." This Court has previously held that most rights, even many constitutional rights, are forfeited if not asserted: All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say "that even constitutional guarantees can be waived by failure to object properly at trial," we mean that some, not all, constitutional rights may be forfeited. Deener v. State, 214 S.W.3d 522, 527 (Tex. App.-Dallas 2006, pet. ref'd) (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)). Unless a fundamental right is implicated, Jackson may not assert for the first time on appeal that a penal statute infringes upon her individual liberty interests. Fundamental rights are rights that are "deeply rooted in the Nation's history and tradition" and are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal quotations and citations omitted). The fundamental rights that are not forfeitable are systemic (or absolute) requirements and rights of litigants which must be observed unless expressly waived. Marin, 851 S.W.2d at 279. See also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) ("Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise are forfeited by failure to comply with [rule of appellate procedure] 33.1(a)."). Jackson has cited no authority for her argument that Lawrence recognized a fundamental right of privacy concerning consensual adult sexual activity under the United States Constitution. In Lawrence, the United States Supreme Court invalidated a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The Court held that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Lawrence, 539 U.S. at 578. While the Court found that a liberty interest protected the private adult sexual conduct at issue, the Court did not characterize the liberty interest as "fundamental." To the contrary, even within the Lawrence opinion, Justice Scalia states that "nowhere does the Court's opinion declare that homosexual sodomy is a 'fundamental right' under the Due Process Clause. . . ." Lawrence, 539 U.S. at 586 (Scalia, J., dissenting). Further, the Court expressly excluded prostitution from the scope of its holding: The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. Id. at 578 (emphasis added). See also Williams v. Morgan, 478 F.3d 1316, 1322 (11th Cir.), cert. denied, Williams v. King, 552 U.S. 814 (2007) (to extent Lawrence rejects public morality as legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial). Courts have concluded that the Lawrence opinion did not recognize a fundamental right or liberty interest. See Ex parte Morales, 212 S.W.3d 483, 493 (Tex. App.-Austin 2006, pet. ref'd) (Lawrence liberty interest is not a fundamental right or liberty interest in sexual conduct); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 n. 32 (5th Cir. 2008) ("Lawrence did not categorize the right to sexual privacy as a fundamental right, and we do not purport to do so here."); Muth v. Frank, 412 F.3d 808, 817-18 (7th Cir. 2005), cert. denied, 546 U.S. 988 (2005) (Lawrence Court's consideration of whether the statute at issue furthered a legitimate state interest, rather than a strict scrutiny standard of review applicable where a fundamental liberty interest is at issue, confirms that the Court was not creating a new fundamental right; Lawrence Court did not announce "a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct"); Lofton v. Sec'y of Dep't of Children Family Servs., 358 F.3d 804, 816 817 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005) ("We are particularly hesitant to infer a new fundamental liberty interest from [the Lawrence] opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis. . . . We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."); Lowe v. Swanson, 639 F.Supp.2d 857, 867 (N.D. Ohio 2009) (Lawrence did not announce a "fundamental" right to all consensual adult sexual activity); United States v. Thompson, 458 F.Supp.2d 730, 732 (N.D. Ind. 2006) (Lawrence did not announce "a fundamental right protected by the constitution, for adults to engage in all manner of consensual sexual conduct") (quoting Muth, 412 F.3d at 817). In Thompson, the court disagreed with the defendant's argument that the holding in Lawrence necessarily rendered laws prohibiting prostitution unconstitutional. Thompson, 458 F.Supp.2d at 731. As is the case in the instant appeal, the court noted that "tellingly," the defendant failed to cite to any instance where a court invalidated any law prohibiting prostitution by relying upon Lawrence or its progeny." Id. There, the court stated: Contrary to Defendant's belief, Lawrence held only that a state cannot enact laws that criminalize homosexual sodomy; it did not address the constitutionality of prostitution statutes. . . . The majority was not commenting on, or concerned with, governmental regulation of sexual acts in the commercial marketplace. Surely, laws prohibiting the commercial acts of prostitution do not have the same far-reaching consequences as laws that regulate private sex acts of consenting adults in the home. . . . With this understanding in mind, it would be an untenable stretch to find that Lawrence necessarily renders (or even implies) laws prohibiting prostitution . . . unconstitutional. Id. See also Moore v. Rodgers, No. 06-2030, 2008 WL 2178060, at *5 (E.D. La. May 20, 2008) (petitioner was convicted for violating Louisiana statute criminalizing certain sexual acts for compensation; district court noted Louisiana Supreme Court's statement in Louisiana v. Thomas, 891 So.2d 1233, 1237 (La. 2005) that Lawrence does not address prostitution and has no effect on a defendant charged with solicitation as included within Louisiana's definition of prostitution; "The Louisiana Supreme Court's holding in Thomas is entirely consistent with Lawrence."); Hawaii v. Romano, 155 P.3d 1102, 1111-112 (Haw. 2007) (Lawrence is not federal precedent for proposition that sexual activity associated with a monetary component abridges the right to privacy and Lawrence does not vitiate the holding in Hawaii v. Mueller, 671 P.2d 1351, 1353-54 (Haw. 1983) that sex for hire is not a fundamental right). In Ex parte Morales, the court of appeals rejected the appellant's contention that, while no court had yet explicitly recognized a fundamental right to engage in adult sexual activity, it is a logical implication or extension of prior decisions of the United States Supreme Court regarding the rights of privacy and intimate association and of Lawrence. Ex parte Morales, 212 S.W.3d at 488-89. At issue in Ex parte Morales was penal code section 21.12 which makes an improper relationship between an employee of a public or private school and a student a statutory offense. See Tex. Penal Code Ann. § 21.12 (West 2011). The court of appeals concluded that section 21.12 does not implicate any rights that the United States Supreme Court had classified as fundamental and that section 21.12 did not violate the appellant's due process rights. Ex parte Morales, 212 S.W.3d at 498. In Berkovsky v. State, 209 S.W.3d 252 (Tex. App.-Waco 2006, pet. ref'd), the appellant contended section 21.12 is unconstitutional because it violates a fundamental liberty interest under the United States Constitution and his right to privacy under the Texas Constitution. Berkovsky, 209 S.W.3d at 253-54. There, the court stated: Notwithstanding Lawrence (holding that Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional), we are not aware of, and [appellant] does not cite, any Texas law recognizing a fundamental privacy right to consensual sexual conduct between adults. We decline to declare such a right. . . . Id. (citation omitted). See also In re Shaw, 204 S.W.3d 9, 19 (Tex. App.-Texarkana 2006, pet. ref'd) (section 21.12 not unconstitutional). The question of whether enforcement of the Texas prostitution statute infringes upon an accused's "right of privacy" has been addressed by one of our state's intermediate appellate courts. In Tisdale v. State, 640 S.W.2d 409 (Tex. App.-San Antonio 1982, pet. ref'd), the appellant unsuccessfully raised a Fourteenth Amendment privacy challenge to the prostitution statute. The San Antonio Court of Appeals upheld the Texas prostitution statute, concluding "that enactment of [section 43.02(a)(1) of the penal code] to protect the health, safety and welfare of the population at large was clearly within the province and discretion of the legislature." Id. at 413-14. Neither the United States Supreme Court nor an appellate court of this state has recognized a fundamental constitutional right to engage in adult consensual sexual activity. Consensual commercial sex (i.e., prostitution) is not a fundamental privacy right or liberty interest protected by due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution. Because a fundamental right is not implicated, we reject Jackson's first argument in support of her contention that she may raise for the first time on appeal an as-applied constitutional challenge to the Texas statute criminalizing prostitution. Second, Jackson argues that, as a matter of state law, an as-applied constitutional challenge to a non-procedural penal statute need not be presented for the first time in a trial court, citing the concurring opinion of Judge Cochran in Karenev v. State, 281 S.W.3d 428, 439 n. 13 (Tex. Crim. App. 2009). In concurring opinions in Karenev and Flores v. State, 245 S.W.3d 432, 441-44 (Tex. Crim. App. 2008), Judge Cochran expressed the view that an appellant may, for the first time on appeal, bring an as-applied challenge to the constitutionality of a penal statute upon which her conviction is based. In Flores, Judge Cochran reasoned that: The purpose of the contemporaneous-objection rule is to provide both the trial judge and the opposing party an opportunity to avoid or correct potential errors and thus avoid a procedurally improper conviction and a subsequent retrial. That purpose is not served when, after the jury returns its verdict, the defendant challenges the constitutionality of a penal statute as it was applied. If the defendant is correct, the conviction disappears, and he cannot be held criminally liable. If the defendant is incorrect, the conviction stands. Id., at 443-44. However, in Flores, the majority observed that "we should not overturn the well-established requirement that appellant must preserve an 'as applied' constitutional challenge by raising it at trial." Id. at 437 n. 14. The majority in Flores set out two reasons for raising an as-applied challenge to the constitutionality of a penal statute at the trial court level: First, timely raising the issue would have given the trial court a chance to rule on it, potentially avoiding the need to burden the court system with appeals . . . Second, a trial court is more capable of addressing a fact-bound claim than an appellate court. Id. The holding in Flores is consistent with prior Texas precedent that an as-applied challenge to the constitutionality of a penal statute must be preserved for appeal by raising the issue at the trial court level. See, Curry v. State, 910 S.W.2d 490, 496 n. 2 (Tex. Crim. App. 1995) (citing Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994)) (as-applied due process challenge not preserved for appeal if appellant did not raise objection at trial); see also, Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.-Texarkana 2003, no pet.) (a constitutionality challenge based on application to the defendant's case cannot be raised for the first time on appeal); Tex. R. App. P. 33.1(a). We are bound by the court of criminal appeals precedent on this subject and therefore reject Jackson's second argument in support of her contention that she may raise for the first time on appeal an as-applied constitutional challenge to the Texas statute criminalizing prostitution.
Conclusion
Jackson has no fundamental right protected by the Fifth and Fourteenth amendments to the United States Constitution to engage in consensual commercial sex. Therefore, an as-applied challenge to the constitutionality of the Texas penal code provision criminalizing prostitution must be preserved for appeal by first raising the issue at the trial court level. This, Jackson failed to do. We overrule Jackson's sole issue and affirm the trial court's judgment.In In re B.D.S.D., 289 S.W.3d 889 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd), cert. denied, 131 S.Ct. 1485 (2011), the court of appeals rejected the defendant's due process challenge and concluded the defendant could be adjudicated for engaging in delinquent conduct by committing the offense of prostitution. 289 S.W.3d at 899. The defendant, like Jackson, did not dispute that she engaged in an act that constitutes the offense of prostitution. Id. at 892. Also like Jackson, the defendant claimed she did not take drugs but engaged in prostitution for the money to buy things that she wanted. Id. However, unlike Jackson, the defendant raised a due process challenge in the trial court to application of the prostitution statute to her. Id.
The fact the Tisdale decision was rendered prior to Lawrence is not material because the Lawrence court did not identify a fundamental right protected by the constitution for adults to engage in all manner of consensual sexual conduct.
Jackson acknowledges that previous constitutional challenges to the Texas prostitution statute, based on arguments of vagueness and overbreadth, have been rejected. See McCarty v. State, 616 S.W.2d 194, 195-96 (Tex. Crim. App. [Panel Op.] 1981) (prostitution statute not unconstitutionally vague); Floyd v. State, 575 S.W.2d 21, 23-24 (Tex. Crim. App. [Panel Op.] 1978) (prostitution and aggravated promotion of prostitution statutes not unconstitutionally vague or overbroad); Frieling v. State, 67 S.W.3d 462, 472-75 (Tex. App.-Austin 2002, pet. ref'd) (prostitution statute not unconstitutionally overbroad); Young Sun Lee v. State, 681 S.W.2d 656, 661-62 (Tex. App.-Houston [14th Dist.] 1984, pet. ref'd) (prostitution statute not unconstitutionally vague).