Brittni Colleps v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00396-CR
NO. 02-12-00397-CR
NO. 02-12-00398-CR
NO. 02-12-00399-CR
NO. 02-12-00400-CR
BRITTNI COLLEPS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two issues, Appellant Brittni Colleps appeals her convictions for
improper relationship between educator and student, arguing that penal code
section 21.12 is unconstitutional and that the State improperly shielded all of the
alleged complainants from prosecution for improper visual recording. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
At the end of April and beginning of May in 2011, Colleps, a first-year
teacher, engaged in various sexual encounters with the complainants—Aaron,
Mark, John, Jordan, and Richard2—who were high school seniors in her English
class.3
During one of the group sex episodes, Jordan used Aaron’s cell phone to
make a recording; the trial court admitted the recording and allowed it to be
published to the jury. The State agreed to give the complainants transactional
immunity, which the trial court approved. The State did not offer to plea bargain
with Colleps.
A jury convicted Colleps of multiple counts of improper relationship
between educator and student as follows: four counts as to Aaron, three counts
as to Mark, four counts as to John, four counts as to Jordan, and one count as to
Richard. The jury assessed Colleps’s punishment at five years’ confinement for
each count in each case, and the trial court set each sentence in each count and
case to run concurrently. These appeals followed.
2
The students were identified by these pseudonyms at trial. At the time,
Mark, John, Jordan, and Richard were eighteen years old and Aaron was
nineteen years old.
3
Because Colleps does not challenge the sufficiency of the evidence to
support her convictions, we will not recount the details of the sexual encounters.
2
III. Penal Code Section 21.12
In her first issue, Colleps concedes the facial constitutionality of penal code
section 21.12 but argues that the statute is unconstitutional as applied to her
because it criminalizes consensual adult behavior without regard to the age of
the alleged victims and that her due process rights were violated when the State
selectively and vindictively prosecuted her for engaging in “multiple sex acts with
five willing adult male students.”
A. Standard of Review
The court of criminal appeals has stated,
Whenever we are confronted with an attack upon the
constitutionality of a statute, we presume that the statute is valid and
that the Legislature has not acted unreasonably or arbitrarily. The
burden rests upon the individual who challenges the statute to
establish its unconstitutionality. In the absence of contrary evidence,
we will presume that the legislature acted in a constitutionally sound
fashion.
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (citations omitted).
“Because a statute may be valid as applied to one set of facts and invalid as
applied to a different set of facts, a litigant must show that, in its operation, the
challenged statute was unconstitutionally applied to him.” State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).
B. Penal Code Section 21.12
Penal code section 21.12, “Improper Relationship Between Educator and
Student,” prohibits a secondary school employee from engaging in sexual
conduct, sexual intercourse, or deviate sexual intercourse with students enrolled
3
at the school where she works. Tex. Penal Code Ann. § 21.12(a)(1) (West 2011
& Supp. 2013); Ex parte Morales, 212 S.W.3d 483, 486 (Tex. App.—Austin 2006,
pet. ref’d). In Morales, a school employee who had engaged in sexual conduct
with one of his school’s seventeen-year-old students argued that section 21.12
violated a constitutionally cognizable fundamental right to engage in adult
consensual sexual activity—a right that he argued was a logical extension of
Lawrence v. Texas, 539 U.S. 558, 567, 123 S. Ct. 2472, 2478 (2003). Morales,
212 S.W.3d at 487, 490–91, 500. However, the Austin court concluded that
Lawrence’s “right to privacy,” which protects personal decisions related to
marriage, procreation, contraception, family relationships, child-rearing, and
education, has not been extended to sexual conduct or intimate relationships
generally and is not a fundamental right to which strict scrutiny applies. Id. at
491–94 (citing Lawrence, 539 U.S. at 574, 578, 123 S. Ct. at 2481–82, 2484, as
invalidating a Texas statute criminalizing private consensual homosexual conduct
under the rational basis test). The court concluded that section 21.12 was
rationally related to two legitimate state interests—preventing sexual exploitation
of Texas schoolchildren and preserving an educational environment conducive to
learning. Id. at 494, 496–97.
The court reached this conclusion first by reasoning that section 21.12 was
narrowly addressed to sexual conduct by one specific class of persons—school
employees—with another specific class—students, further limited to those
enrolled at the same school where the employee works. Id. at 494. It observed
4
that in Lawrence, the Supreme Court specifically stated that the liberty interest in
private adult sexual conduct in that case did not involve minors or “persons who
might be injured or coerced or who are situated in relationships where consent
might not be easily refused.” Id. (citing Lawrence, 539 U.S. at 578, 123 S. Ct. at
2484). The court reasoned that because school employees “are given unique
access to students, and are thereby vested with great trust and confidence by the
school, parents, and public,” the legislature had a legitimate interest in seeking to
preserve or strengthen that trust by unequivocally prohibiting school employees
from misusing their access to students as a conduit for sex. Id. at 496.
Further, in reviewing the state constitution’s charge to the legislature to
establish and provide for public-school support and maintenance, the
legislature’s compulsory school-attendance requirement and its decree that
school campuses will maintain a safe and disciplined environment conducive to
learning, and the distractions and conflicts of interest inherent in sexual
relationships between school employees and students, the court concluded that
the legislature could have rationally determined that sexual relationships between
students and school employees would undermine the school’s learning
environment. Id. at 496–98 (citing Tex. Const. art. VII, § 1, and Tex. Educ. Code
Ann. § 4.001 (West 2006)).
5
C. Analysis
Colleps contends that section 21.12 “criminalizes adult consensual
behavior without regard for the age or sexual maturity of the alleged victims.”
She attempts to distinguish Morales, arguing that here
there are five alleged victims, all of them consenting adults aged
eighteen and older at the time of the offenses, four of whom
participated in consensual group sex with [her], four of whom
conspired to record or conceal the evidence of the recording of one
of the group trysts, all of whom were graduating from high school
within weeks of the offenses, and none of whom wanted [her]
prosecuted.
Colleps further argues that while the statute has a rational basis when
legislatively drawn to protect students and the learning environment, the
“personal moral revulsion” of the prosecutor here turned the prosecution into
persecution because the State refused to offer her a plea bargain. She also
claims that the law has a fundamental flaw in that conduct is rendered illegal
based solely on school-employment status, pointing out that her conduct would
have been legal if the students had already graduated, if the students had been
from a different school district, or if she had been fired before engaging in sexual
relations with the students.
In making these arguments, Colleps ignores the reasoning underlying the
statute as set out in Morales—it is a school employee’s status that provides
access to students at the school and the ability to sexually manipulate those
students and disrupt their educational environment. The record reflects that
Colleps used her position as an educator to seduce five students in violation of
6
section 21.12—in addition to the five complainants’ testimonies, the school
district’s associate superintendent of administrative services testified that
teachers were not permitted to have any kind of sexual contact or any sexual
relationship with a student, irrespective of the student’s age, and that there were
strict restrictions on text messaging between teachers and students. He stated
that the statute and the school’s policies were in place to protect students
because teachers had more power than students, they were in a position of
authority, and “[s]tudents look up to teachers . . . they look to us for guidance,
and any kind of violation of that is -- it’s a situation where it puts the students in a
position where they could be harmed.” The record also contains text messages
between Colleps and Aaron regarding her final exam and how she would do
anything she could for him and the sexual text messages that they exchanged
during her class. Colleps also sent text messages to Mark, who gave Aaron’s
phone number to Colleps.
Further, as pointed out by the State, “A prosecutor’s disgust with a
defendant’s criminal behavior does not render a statute unconstitutional.”
Selective or vindictive prosecution is not a defense on the merits to the criminal
charge; rather, it is an independent assertion that the prosecutor has brought the
charge for reasons that the Constitution prohibits. Ex parte Quintana, 346
S.W.3d 681, 685 (Tex. App.—El Paso 2009, pet. ref’d). To the extent that
Colleps raised and preserved a selective or vindictive prosecution claim, she had
the burden to prove purposeful discrimination and to defeat the presumption that
7
the prosecution was made in a good-faith and nondiscriminatory fashion. See id.
To establish such a prima facie case, Colleps had to show that the State singled
her out for prosecution even though it had not proceeded against others similarly
situated to her based on the type of conduct for which she was charged and that
the government’s discriminatory selection was invidious, i.e., based on
impermissible considerations such as race, religion, the desire to prevent her
exercise of constitutional rights, or some arbitrary classification. See id. Only a
rational basis for the discriminatory treatment is required unless the government
discriminates against a suspect class or impinges on a fundamental right. Id.
The likelihood that the individual prosecuted will receive the media’s attention is a
proper basis for selective prosecution because of the potential deterrent effect on
others in society. Id.
Nothing in the record shows that Colleps—a white, married female with
three children—was discriminated on any basis other than that set out by the
statute (educator), which, as discussed above, has been found rationally related
to the legitimate state interest of protecting students from school employees who
might otherwise use their positions to sexually prey on them. As set out above,
Colleps had no fundamental right to sexual intercourse with students at her
school, and nothing in the record shows similar cases under section 21.12 in
8
which the prosecutor elected to plea bargain instead of proceeding to trial. 4 We
overrule Colleps’s first issue.
IV. Transactional Immunity
In her second issue, Colleps complains that the State improperly shielded
the complainants from prosecution for the felony offense of improper visual
recording by offering them transactional immunity and obtaining appointed
counsel for them when it learned that she would offer into evidence text
messages showing that two of the students had conspired to record one of their
sexual episodes.5 An immunity agreement between a witness and the State
generally does not involve the defendant’s rights; rather, the defendant has the
right to confront the witness at trial as to the immunity agreement and its
conditions. Goff v. State, 931 S.W.2d 537, 549 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997).
Further, while a defendant has grounds to complain about the treatment of
a witness’s immunity when the government uses its immunity privilege to unfairly
4
A defendant has no absolute right to enter into a plea bargain. Gaal v.
State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (quoting Morano v. State,
572 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978)); see also Morano, 572
S.W.2d at 551 (“It is no more reasonable to argue that the State must enter into a
plea bargain with every defendant than to argue that every defendant must plead
guilty and enter into a plea bargain.”).
5
Although Colleps contends that the “willingness to immunize their
witnesses only after the extent of their criminal acts was revealed is indicative of
the degree of vindictiveness and disparate treatment meted out to [her],” we have
already addressed her selective- or vindictive-prosecution argument in our
resolution of her first issue.
9
skew the facts presented to the jury and breach the defendant’s right to due
process of law, see United States v. Bustamante, 45 F.3d 933, 943 (5th Cir.),
cert. denied, 516 U.S. 973 (1995), there is no indication that immunizing the
complainants here unfairly skewed any of the facts. Even if the recording had
not been admitted into evidence, there was ample evidence for the jury to find
beyond a reasonable doubt that Colleps had engaged in sexual activities with
five students, regardless of whether she gave permission to record, or was aware
of the recording of, one of their instances of group sex.6 We overrule Colleps’s
second issue.
V. Conclusion
Having overruled both of Colleps’s issues, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 3, 2014
6
Some of the complainants testified that they thought Colleps knew she
was being recorded although they agreed that her back was turned away from
the cell phone at the time.
10