Quincee English v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00092-CR
___________________________
QUINCEE ENGLISH, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1705897
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion on Rehearing by Chief Justice Sudderth
MEMORANDUM OPINION ON REHEARING
We withdraw our July 27, 2023 opinion and judgment and substitute the
following in its place.
The State charged Appellant Quincee English with solicitation of prostitution.
See Tex. Penal Code Ann. § 43.021(a) (“A person commits an offense if the person
knowingly offers or agrees to pay a fee to another person for the purpose of engaging
in sexual conduct with that person or another.”).1
English moved to quash the indictment,2 raising facial and as-applied
constitutionality challenges to Penal Code Section 43.021 and complaining that the
way the statute “is worded and the way it is applied and enforced only prosecutes
men.”3 To his motion, he attached documents purporting to show that in the cases
1
Solicitation of prostitution as charged in this case is a state-jail felony. See Tex.
Penal Code Ann. § 43.021(b) (stating that the offense is a state-jail felony unless other
conditions—not applicable here—are met that enhance the offense to a third- or
second-degree felony); see also id. § 12.35(a)–(b) (stating that the punishment range for
a state-jail felony is not more than 2 years or less than 180 days and up to a $10,000
fine).
In his motion to quash, English claimed that the Arlington Police Department
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had used an internet advertisement “to try to induce young males, with pornographic
photos and the promise of sex, to become brand new felons by violating [Section]
43.021” and that “[a] female police officer, who was apparently not the same person
in the photo accompanying the ad, included her phone number with the ad and
waited for interested men to contact her.”
3
English raised his challenges under both the state and federal constitutions’
“guarantees of equal protection and due process.” However, as pointed out by the
State, English makes no due-process arguments on appeal.
2
filed and accepted in Tarrant County since Section 43.021’s September 1, 2021
effective date, “there has not been one female charged under the statute.” After the
trial court denied the motion, English made an open plea of guilty and received four
years’ deferred adjudication community supervision and a $200 fine.
In a single issue, English complains that the trial court erred by denying his
motion. See Dillehey v. State, 815 S.W.2d 623, 626 (Tex. Crim. App. 1991) (stating that
a defendant may appeal a pretrial-motion ruling despite receiving deferred
adjudication and without an adjudication of guilt). In our July 27, 2023 opinion, we
held that English could not make an as-applied challenge in his pretrial motion4 and
4
An as-applied challenge should be brought during or after trial on the merits
so that the trial court and reviewing courts have the case’s particular facts and
circumstances to determine whether the statute has been applied to the defendant in
an unconstitutional manner. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910, 912
(Tex. Crim. App. 2011) (orig. proceeding) (“Courts must evaluate the statute as it has
been applied in practice against the particular challenger.”); see also London v. State, 490
S.W.3d 503, 507–08 (Tex. Crim. App. 2016) (stating that to prevail on an as-applied
challenge, “it is incumbent upon the appellant to show that the statute operates
unconstitutionally as applied to him in his situation” and that “[b]ecause such inquiries
can often require factual development . . . an as-applied challenge should not generally
be raised prior to trial”); State v. Empey, 502 S.W.3d 186, 189 (Tex. App.—Fort Worth
2016, no pet.) (stating that a pretrial motion to quash an indictment may be used only
for a facial—and not for an as-applied—challenge). See generally Diruzzo v. State, 581
S.W.3d 788, 798 (Tex. Crim. App. 2019) (stating that a motion to quash is an
acceptable vehicle for a facial challenge to an indictment); 42 George E. Dix & John
M. Schmolesky, Tex. Practice, Criminal Practice & Procedure § 26:30.50 (3d ed. 2022)
(noting that an as-applied challenge is “inappropriate for resolution by a pretrial
challenge to the charging instrument”).
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that he had failed to meet the facial-challenge requirements.5 In his motion for
rehearing, English concedes that he “agrees with [our] rationale,” but he complains
that he raised neither a facial challenge nor an as-applied challenge on appeal. Instead,
he contends that what he asserted was “solely, a selective prosecution claim” on
appeal.
In support of his contention, English points out that he used “some iteration”
of the phrase “selective prosecution” 25 times in his appellate brief. We do not
dispute the accuracy of his count but point out that, in contrast to his appellate brief,
English used that phrase or some iteration of it exactly zero times in his motion to
quash in the trial court.6 Cf. Tex. R. App. P. 33.1 (stating the prerequisites for
5
We must presume Section 43.021 is constitutional, see Allen v. State, 614 S.W.3d
736, 740 (Tex. Crim. App. 2019), and to successfully challenge its facial
constitutionality, English had to establish that no set of circumstances existed under
which the statute would be valid. See id. at 741; Peraza v. State, 467 S.W.3d 508, 514–
16 (Tex. Crim. App. 2015) (stating that the defendant must establish that the statute
always operates unconstitutionally in all possible circumstances and that only statutory
applications that actually authorize or prohibit conduct are considered). Further, we
consider the statute as it is written rather than how it may operate in practice, Peraza,
467 S.W.3d at 515, and Section 43.021’s gender-neutral language does not
discriminate against any suspect class or implicate a fundamental right. See Robles v.
State, 585 S.W.3d 591, 595–96 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d)
(stating that strict scrutiny did not apply to due-process complaint about prostitution
statute when the appellant failed to show a fundamental right to engage another adult
in consensual sexual conduct for a fee); see also State v. Rosseau, 396 S.W.3d 550, 557 n.7
(Tex. Crim. App. 2013) (stating that where no suspect classification or fundamental-
right violation is involved, a difference in treatment need be only rationally related to a
valid public purpose to withstand equal-protection scrutiny).
In his motion to quash, English argued that “[t]he way the . . . new statute is
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worded and the way it is applied and enforced only prosecutes men”; that “the statute,
4
presenting a complaint for appellate review); Montelongo v. State, 623 S.W.3d 819, 822
(Tex. Crim. App. 2021) (stating that to avoid forfeiting a complaint on appeal, a party
must let the trial judge know what he wants and why he thinks he is entitled to it, and
he must do so clearly enough for the judge to understand him at a time when the
judge is in a position to do something about it); Mendez v. State, 138 S.W.3d 334, 342
(Tex. Crim. App. 2004) (stating that most complaints, whether constitutional,
statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)).
Having now conceded that he agrees with the rationale underlying our original
memorandum opinion as to why the facial and as-applied challenges raised in his
motion to quash should be overruled, and having forfeited his selective prosecution
claim by failing to assert it in his motion to quash, the result here remains unchanged.7
on its face, and the enforcement and application of the statute, are violations of”
equal protection and due process; that “the way the statute is written and applied must
cause unjust and illegal discrimination”; and that “[t]he statute violates equal
protection and due process the way it is enforced and applied.”
7
We do note, however, that had he preserved a selective prosecution complaint
for appeal, this, too, would have failed. To establish a prima facie case of selective
prosecution, the defendant must show (1) the government has singled him out for
prosecution even though the government has not proceeded against others similarly
situated to him based on the type of conduct for which he is charged, and (2) the
government’s discriminatory selection of him for prosecution is either in bad faith or
is invidious, i.e., based on an impermissible consideration such as sex. See Gawlik v.
State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); Ex parte Quintana, 346 S.W.3d 681,
685 (Tex. App.—El Paso 2009, pet. ref’d); see also Wright v. State, No. 02-22-00035-CR,
2023 WL 2703223, at *9 (Tex. App.—Fort Worth Mar. 30, 2023, pet. ref’d) (mem.
op., not designated for publication) (“A defendant must come forward with
‘exceptionally clear evidence’ that the prosecution was initiated for an improper
5
We overrule English’s sole issue, deny his motion for rehearing, and affirm the
trial court’s order.
reason.” (quoting Nelloms v. State, 63 S.W.3d 887, 893 (Tex. App.—Fort Worth 2001,
pet. ref’d)).
On rehearing, English refers us to Ex parte Aparicio, No. 04-22-00263-CR, 2023
WL 4095939, at *10 (Tex. App.—San Antonio June 21, 2023, pet. filed), to support
his selective prosecution argument. But this case is like Aparicio only in that both
defendants are male. While the defendant in Aparicio brought forth affirmative
evidence of the State’s policy to prosecute men and not women for criminal trespass
offenses, see id. at *1–13, in his brief English points to documents that purport to
show that from the date of his offense on September 29, 2021, to May 3, 2022, “the
Tarrant County Criminal District Attorney’s Office failed to prosecute a single woman
for solicitation of prostitution but prosecuted 154 men.” In the trial court, English
argued that the documents showed 198 cases prosecuted against men. Once again, we
will not quibble over numbers, as these numbers—whether 154 or 198—miss the
mark.
Unlike the defendant in Aparicio, English offered no evidence showing how
many men and women were arrested for that offense during the same period or
whether there was an internal policy to arrest and prosecute men, but not women, for
the offense. Cf. id. at *1–9. And although English contended in his appellate brief
that the only evidence presented to the trial court “proved that the State singled out
men for prosecution,” the evidence proved no such thing. See Robles, 585 S.W.3d at
597 (“When the claim of selective prosecution is asserted on the basis of sex, the
defendant must make a threshold showing that the government declined to prosecute
similarly situated suspects of the opposite sex.”). Rather, his documentation showed
that men were prosecuted, but not that they were singled out in comparison to
similarly situated women committing the same offenses or that the State had such a
policy of purposeful discrimination. See United States v. Armstrong, 517 U.S. 456, 470,
116 S. Ct. 1480, 1489 (1996) (holding no selective prosecution claim was shown when
the defendants’ evidence did not identify similarly situated individuals who were not
black and who could have been, but were not, prosecuted for the offenses for which
the defendants had been charged); Carreras v. State, 936 S.W.2d 727, 730 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d) (“There was no evidence that females anywhere
were prosecuted when males allegedly doing the same thing were not prosecuted
under similar circumstances.”).
6
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 24, 2023
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