In the Matter of M.P.--Appeal from 386th Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-01-00364-CV

Case Date: 12/31/2002

Plaintiff: Gregory Wayne Mandrell

Defendant: The State of Texas--Appeal from County Criminal Court No. 3 of Tarrant County

Preview:In the Matter of M.P.--Appeal from 386th Judicial
District Court of Bexar County
No. 04-01-00364-CV
In the Matter of M.P.,
A Juvenile
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-JUV-00481
Honorable Laura Parker, Judge Presiding
Opinion by: Paul W. Green, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. L pez, Justice
Paul W. Green, Justice
Delivered and Filed: December 31, 2002
AFFIRMED
Appellant, minor child M.P., was charged with the offense of engaging in delinquent conduct, specifically graffiti,
pursuant to Section 28.08 of the Texas Penal Code. The State filed notice of intent to seek an affirmative finding that
the offense was committed because of bias or prejudice under Texas Code of Criminal Procedure art.42.014 and Texas
Penal Code 12.47. Appellant pled not true and filed a motion to quash, challenging the constitutionality of the above-
cited statutes. The court denied the motion. Following a jury trial, appellant was convicted of engaging in delinquent
conduct. The trial court made a finding that appellant had selected the victim on the basis of race and sentenced him to
the Texas Youth Commission until his 21st birthday. Appellant now challenges the trial court's sentencing order,
claiming his due process rights were violated and reasserting his position that article 42.014 of the Texas Code of
Criminal Procedure (1) and 12.47 of the Texas Penal Code (2) are facially unconstitutional under both the United
States and Texas Constitutions.
Discussion
When reviewing an attack upon the constitutionality of a statute, the court begins with a presumption that the statute is
valid and the Legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex.
Crim. App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Ex parte Ports, 21 S.W.3d 444,
446 (Tex. App.--San Antonio 2000, pet. ref'd). The burden rests upon the individual who challenges the statute to
establish its unconstitutionality. Ports, 21 S.W.3d at 446. In the absence of contrary evidence, we will presume the
Legislature acted in a constitutionally sound fashion.
In Apprendi v. New Jersey, 530 U.S.466 (2000), the Supreme Court considered the constitutionality of the New Jersey
hate crimes statute. Under the statute a jury could convict a defendant of a second degree offense based on its finding,
beyond a reasonable doubt, that he unlawfully possessed a prohibited weapon. After a subsequent proceeding, the
statute permitted a trial judge to impose punishment for a first degree offense based on the judge's finding, by a
preponderance of the evidence, that the defendant's purpose for possessing the weapon was motivated by bias against a
characteristic of the victim. The Supreme Court held the New Jersey statute to violate due process, finding it
unconstitutional for a legislature to remove from the jury the assessment of facts (aside from a prior conviction) which
increase the prescribed range of penalties to which a criminal defendant is exposed. Apprendi, 530 U.S. at 490.
The effect of the statutes challenged in the case at hand is remarkably similar to the effect of the statute struck down in
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Apprendi. In fact, the Texas Court of Criminal Appeals has already found the challenged statutes to violate due
process under the United States and Texas Constitutions. (3) See Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App.
2001). However, the Court's holding in Boyd was predicated upon the manner in which the statute was applied to the
appellant in that case. The Court of Criminal Appeals found the statutes challenged in Boyd to be unconstitutional
because they increased the prescribed range of penalties to which the particular appellant was exposed without
submitting the issue to the jury. Boyd, 58 S.W.3d at 136. The Court did not, however, address the issue of whether the
statutes were facially unconstitutional. Because of the reasoning utilized in Apprendi and Boyd, the cases are not
analogous to the case at hand.
In a facial challenge, as opposed to an as-applied challenge, the challenging party contends that the statute, by its
terms, always operates unconstitutionally. Wilson v. Andrew, 10 S.W.3d 663, 670 (Tex. 1999); Tex. Workers' Comp.
Comm'n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). Although the standard regarding facial challenges to state
statutes has been the subject of debate within the United States Supreme Court, Washington v. Glucksberg, 521 U.S.
702, 739 (1997). (Stevens, J. concurring), several Texas courts have chosen to follow the standard set forth in United
States v. Salerno, 481 U.S. 739, 745 (1987). In Salerno, the Supreme Court found a facial challenge to be the most
difficult to succeed because the challenger must establish that no set of circumstances exists under which the act would
be valid. Id.; In re B.S.W., 87 S.W.3d 766, 771 (Tex. App.--Texarkana 2002, pet. filed).
The appellant in this case has failed to demonstrate that Texas Code of Criminal Procedure art. 42.014 and Texas Penal
Code 12.07 may never be applied in a constitutional fashion. For example, appellant has neglected to address the
situation in which a judge, rather than a jury, is the trier of fact. As the trier of fact, the judge would be entitled to
make the determination regarding whether appellant selected his victim on the basis of race. Because appellant has
failed to meet his burden with regard to the facial challenge, we overrule his sole issue and affirm the judgment of the
trial court.
PAUL W. GREEN, JUSTICE
Do Not Publish
1. At the time of appellant's offense and at the time of his trial, Article 42.014 provided:
In the punishment phase of the trial of an offense under the Penal code, if the court determines that the defendant
intentionally selected the victim primarily because of the defendant's bias or prejudice against a group, the court shall
make an affirmative finding of that fact and enter the affirmative finding in the judgment of that case. Article 42.014
has since been amended.
2. At the time of appellant's offense and at the time of his trial, 12.47 provided:
If the judge or jury, whichever assesses punishment in the case, makes an affirmative finding under Article 42.014,
Code of Criminal Procedure, in the punishment phase of the trial of an offense other than a first degree felony or a
Class A misdemeanor, the punishment for the offense is increased to the punishment prescribed for the next highest
category of offense. If the offense is a class A misdemeanor, the minimum term of confinement for the offense is
increased to 180 days. 12.47 has since been amended.
3. Although the wording of the version of 12.47 which the Court found unconstitutional in Boyd differs slightly from
the version applicable to appellant, the effect is the same.
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