Schlittler, David

PD-1505-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/20/2015 10:42:43 AM
Accepted 4/20/2015 10:51:00 AM
ABEL ACOSTA
April 20, 2015 Cause Number PD-1505-14 CLERK

David Schlittler
vs.
The State of Texas

State’s Brief

On Discretionary Review
Of Appeal No. 12-13-00269-CR
In the Twelfth Court of Appeals of Texas
Judges Worthen, Griffith, and Hoyle, Presiding

And in Cause Number 30390
From the 3rd District Court of Anderson County, Texas
Judge Deborah Oakes Evans, Presiding

Melinda Fletcher
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.367.9407
Fax 866.923.9253
mfletcher@sputexas.org
 Table of Contents

Index of Authorities .................................. 3
Issues Presented ...................................... 6
Statement of Facts .................................... 7
Summary of the Argument .............................. 10
Argument ............................................. 12

Response to Both Grounds for Review: At the time of
this offense, Schlittler had no right to
communicate with or to parent his son from prison:
he had previously been legally barred from doing
so. ................................................. 12

Response to First Ground for Review: Penal Code §
38.111 does not violate Schlittler’s constitutional
right to Due Process. ............................... 14

Response to Second Ground for Review: Penal Code §
38.111 does not violate Schlittler’s constitutional
right to Equal Protection. .......................... 19

Prayer ............................................... 24
Certificate of Compliance ............................ 25
Certificate of Service ............................... 25

PD-1505-14 State’s Brief pg. 2
 Index of Authorities

Federal Constitution

Due Process ...................................... passim

Equal Protection ................................. passim

Fourth Amendment ..................................... 14

Federal Case Law

Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780,
28 L. Ed. 2d 113 (1971) .......................... 15

Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) .. 20

Denver Area Educ. Telecomm. Consortium, Inc. v. FCC,
518 U.S. 727, 116 S. Ct. 2374, 135 L. Ed. 2d 888
(1996) ........................................... 21

Kadrmas v. Dickinson Public Schools, 487 U.S. 450,
108 S.Ct. 2481, 101 L.Ed.2d 399 (1988) ........... 19

Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157,
111 L.Ed.2d 666 (1990) ........................... 21

New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348,
73 L.Ed.2d 1113 (1982) ........................... 22

Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691,
109 L.Ed.2d 98 (1990) ............................ 21

Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549,
54 L. Ed. 2d 511 (1978) .......................... 17

PD-1505-14 State’s Brief pg. 3
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982) ...................... 16, 17

Smith v. Organization of Foster Families, 431 U.S. 816,
97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) .............. 17

Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054,
147 L. Ed. 2d 49 (2000) ...................... 15, 20

United States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 813, 120 S.Ct. 1878,
146 L.Ed.2d 865 (2000) ........................... 21

Washington v. Glucksberg, 521 U.S. 702,
117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ........... 15

Texas State Case Law

Barker v. State, 335 S.W.3d 731
(Tex. App.—Houston [14th Dist.] 2011,
pet. ref'd) ...................................... 20

Cannady v. State, 11 S.W.3d 205
(Tex. Crim. App. 2000) ........................... 19

Dinkins v. State, 894 S.W.2d 330
(Tex. Crim. App. 1995) ........................... 20

Henderson v. State, 962 S.W.2d 544 (Tex.Crim.App.1997),
cert. denied, 525 U.S. 978, 119 S.Ct. 437,
142 L.Ed.2d 357 (1998) ....................... 20, 22

In re M.A.H., 20 S.W.3d 860
(Tex.App.-Fort Worth 2000, no pet.) .............. 20

PD-1505-14 State’s Brief pg. 4
Lucas v. Texas Dept. of Protective & Regulatory
Services, 949 S.W.2d 500 (Tex. App.—Waco 1997),
disapproved of on other grounds by In re J.F.C.,
96 S.W.3d 256 (Tex. 2002) ........................ 18

Villareal v. State, 935 S.W.2d 134
(Tex. Crim. App. 1996) ........................... 14

Texas Code of Criminal Procedure

Article 62.001 ................................... 12, 13

Texas Penal Code

§ 38.111 ......................................... passim

PD-1505-14 State’s Brief pg. 5
 Cause Number PD-1505-14

David Schlittler
vs.
The State of Texas

To the Honorable Judges of the Court of Criminal Appeals:

Respondent, the State of Texas, respectfully

presents this brief on the merits in support of the trial

court’s rulings, and the lower appellate court’s rulings,

determining that Penal Code § 38.111 is not

unconstitutional, as applied to Schlittler.

Issues Presented

Response to Both Grounds for Review: At the time of

this offense, Schlittler had no right to communicate with

or to parent his son from prison: he had previously been

legally barred from doing so.

Response to First Ground for Review: Penal Code §

38.111 does not violate Schlittler’s constitutional right

to Due Process.

PD-1505-14 State’s Brief pg. 6
 Response to Second Ground for Review: Penal Code §

38.111 does not violate Schlittler’s constitutional right

to Equal Protection.

Statement of Facts

The trial court denied Schlittler’s written motions

to declare Penal Code § 38.111 unconstitutional, both

facially and as applied to him, for violation of Due

Process and Equal Protection. (RR Supp: 6-8) Afterwards,

the trial court made the following Findings of Fact:

• Schlittler is currently serving a sentence for

Aggravated Sexual Assault of a Child, B.M. (CR

1:82, see also SX 1)

• B.S. is Schlittler’s son. (CR 1:82)

• B.S. is the half brother of Schlittler’s victim,

B.M. (CR 1:92)

• B.S. and B.M. have the same biological mother.

(CR 1:82)

PD-1505-14 State’s Brief pg. 7
 • B.S.’s mother did not consent to Schlittler

contacting their son, B.S. (CR 1:82)

• In 2007, an Order on Suit to Modify Parent-Child

Relationship was entered. (CR 1:82)

• The Order includes that “David Charles

Schlittler is ordered to refrain from any

contact with the child (B[]. S[].), direct or

indirect or through anyone acting in concert

with David Charles Schlittler, including without

limitation, indirect communication through

Bonita Rolston; and through any means,

including, but not limited to telephonic,

Instant Messaging, Email, Chatroom, Text

Messaging, written communication, or in person

communication except for those periods of

possession listed below…” (CR 1:82-83)

• Schlittler has no periods of possession while he

is incarcerated.

• The Order is in place until B.S. turns 18 years

of age. (CR 1:83)

PD-1505-14 State’s Brief pg. 8
 • The indictment alleges that Appellant contacted

B.S. through Bonita Rolston. (CR 1:82)

The trial court concluded that Texas Penal Code §

38.111 does not violate the Texas Constitution, the

United States Constitution, the Texas Family Code, or

Schlittler’s fundamental rights or liberty interests as

they pertain to B.S. (CR 1:83) The trial court also

concluded that there is a compelling state interest to

protect B.S. that overrides Schlittler’s right to

communicate with his son. (CR 1:83)

At trial, B.S.’s mother testified that she had

obtained the modified conservatorship order that

restricted Schlittler’s contact with his son, B.S. (RR

3:87-89, 96-97) B.S. was 13 years old at the time of the

prohibited contact. (RR 3:98) The mother has not

consented to Schlittler contacting B.S. (RR 3:100)

While in prison, Schlittler sent a series of message

to B.S., through Bonita Ralston, telling B.S. how much

he was loved, and asking him to convince his sister,

B.M., to recant her lie about Schlittler molesting her.

PD-1505-14 State’s Brief pg. 9
(RR 3:30, 33-34) The mother of the children reported the

contacts to her local police department and to her family

law attorney. (RR 3:101) The attorney reported the

contacts to the prison officials. (RR 3:101)

Summary of the Argument

Schlittler asserts that Penal Code § 38.111 is

unconstitutional as applied to him, because it violates

his rights to Due Process and Equal Protection. The

overriding flaw in Schlittler’s arguments is the

assertion that he has a fundamental right to communicate

with and parent his child from prison. This right was

taken away from Schlittler by a family law court, prior

to his commission of this criminal offense.

Appellant’s first ground for review should be denied

because § 38.111 does not operate to violate Schlittler’s

constitutional right to Due Process. The statute is

narrowly tailored to serve the compelling state interest

of protecting minor sexual assault victims from undue

trauma. Schlittler only lost his right to communicate

PD-1505-14 State’s Brief pg. 10
with his son after Schlittler pled guilty to sexually

assaulting the son’s young sister. Further, the facts of

this case show the necessity of the statute: Schlittler

communicated with his son in an effort to get the son to

put pressure on the sexual assault victim to recant her

story.

Appellant’s second ground for review should be denied

because Penal Code § 38.111 is narrowly tailored to serve

a compelling state interest, and does not violate

Schlittler’s right to Equal Protection. Section 38.111

applies only to those convicted of certain crimes, and

then only to those whose victims were young. If a person

is in prison for molesting his own child, the state has

a compelling interest in protecting all of his children

from his influence. This does not violate the right to

Equal Protection.

The opinions of the lower courts should be affirmed.

PD-1505-14 State’s Brief pg. 11
 Argument

Response to Both Grounds for Review: At the time of this
offense, Schlittler had no right to communicate with or to
parent his son from prison: he had previously been legally
barred from doing so.

The unusual facts of this case make it impossible

for Schlittler’s constitutional rights to communicate

with son from prison to be violated. Yet he asserts that

Penal Code § 38.111, as applied to him, violated his

rights to Due Process and Equal Protection. His arguments

fail.

The relevant parts of Penal Code § 38.11 read:

(a) A person commits an offense if the person,
while confined in a correctional facility after
being charged with or convicted of an offense
listed in Article 62.001(5), Code of Criminal
Procedure, contacts by letter, telephone, or any
other means, either directly or through a third
party, a victim of the offense or a member of
the victim's family, if:
(1) the victim was younger than 17 years of
age at the time of the commission of the offense
for which the person is confined; and
(2) the director of the correctional
facility has not, before the person makes
contact with the victim:

PD-1505-14 State’s Brief pg. 12
 (A) received written and dated consent
to the contact from:
(i) a parent of the victim;
(ii) a legal guardian of the
victim;
(iii) the victim, if the victim is
17 years of age or older at the time of
giving the consent; or
(iv) a member of the victim's
family who is 17 years of age or older;
and
(B) provided the person with a copy of
the consent.
At the time of this offense, Schlittler was serving

time in prison for Aggravated Sexual Assault of a Child,

B.M. (CR 1:82, SX 1) Aggravated Sexual Assault of a Child

is an offense listed in Article 62.001 (5), Code of

Criminal Procedure. Therefore, Penal Code § 38.111

applied to him. It was undisputed that Schlittler had

contact with his son, B.S., who is the brother of is

victim, B.M. (RR 3:39-40; RR 4:42-46) It is also

undisputed that Schlittler knew he was court-ordered to

have no contact. (RR 3:39-40)

Schlittler had already lost the fundamental right to

communicate with his son, except when he had possession

of his son. (CR 1:82-83) Having lost this fundamental

PD-1505-14 State’s Brief pg. 13
right, no law could have thereafter violated this right

of Schlittler’s. See Villareal v. State, 935 S.W.2d 134,

138 (Tex. Crim. App. 1996) en banc (holding a person

asserting a violation of his Fourth Amendment right

against unreasonable search must first prove that he has

the expectation to privacy; if there is no expectation

of privacy, there can be no constitutional violation of

the right to unreasonable search).

Both of Schlittler’s arguments must fail because he

did not have the rights that he asserts were violated,

as they pertain to these facts. Even if he did have the

rights, the State will show that his rights were not

violated by Penal Code § 38.111.

Response to First Ground for Review: Penal Code § 38.111
does not violate Schlittler’s constitutional right to Due
Process.

“[A] statute ... may be held constitutionally invalid

as applied when it operates to deprive an individual of

a protected right although its general validity as a

PD-1505-14 State’s Brief pg. 14
measure enacted in the legitimate exercise of state power

is beyond question.” Boddie v. Connecticut, 401 U.S. 371,

379, 91 S. Ct. 780, 787, 28 L. Ed. 2d 113 (1971). The

interest of parents in the care, custody, and control of

their children is perhaps the oldest of the fundamental

liberty interests recognized by the United States Supreme

Court. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.

Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000).

State infringement on a fundamental right is subject

to a “strict scrutiny” analysis and is permitted only if

narrowly tailored to serve a compelling state interest.

See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721,

117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (due process).

Schlitter concedes that protecting a minor sexual assault

victim from undue trauma is a compelling state interest.

(See pp. 22-23 of Schlittler’s brief.) Schlittler argues,

however, that § 38.111 is not narrowly tailored, but is

overly broad. The State disagrees.

Section 38.111(a)(1), as applied to Schlittler,

prevents him from contacting his son only because his son

PD-1505-14 State’s Brief pg. 15
is a member of the victim’s family. In fact, Schlittler’s

illegal contact with his son was aimed at tormenting

Schlittler’s victim. Schlittler’s intent was to use his

son to badger his victim and to “put pressure on her” to

tell her counselor that Schlittler never assaulted her.

(RR 3:30, 33) Therefore, even as § 38.111 is applied to

Schlittler, the statute was narrowly tailored to prevent

his victim from undue trauma.

In parental termination cases, the state can only

satisfy Due Process and intrude on the fundamental right

of a parent to maintain a family if the state proves the

allegations by clear and convincing evidence. See

Santosky v. Kramer, 455 U.S. 745, 767-68, 102 S. Ct.

1388, 1402, 71 L. Ed. 2d 599 (1982) (noting approval of

clear and convincing evidence in termination cases

involving mental illness). In Schlittler’s case, he pled

guilty to the criminal offense of aggravated sexual

assault of his step-daughter. Criminal cases require

proof beyond a reasonable doubt, which is the highest

burden of proof. Schlittler’s fundamental right to parent

PD-1505-14 State’s Brief pg. 16
his son was intruded on only after the state proved beyond

a reasonable doubt that he sexually assaulted the son’s

sister. This satisfies the Due Process burden as

described by Santosky.

Schlitter asserts the authority of Quilloin v.

Walcott which held that the Due Process clause would be

offended “[i]f a State were to attempt to force the

breakup of a natural family, over the objections of the

parents and their children, without some showing of

unfitness and for the sole reason that to do so was

thought to be in the children's best interest.” Quilloin

v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 555, 54 L.

Ed. 2d 511 (1978) (quoting Smith v. Organization of

Foster Families, 431 U.S. 816, 862–863, 97 S.Ct. 2094,

2119, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in

judgment)). Schlittler was proven to be an unfit parent

of both B.S. and B.M. when he pled guilty to sexually

assaulting his step-daughter. (RR 3:86-87) See Lucas v.

Texas Dept. of Protective & Regulatory Services, 949

S.W.2d 500, 503 (Tex. App.—Waco 1997), disapproved of on

PD-1505-14 State’s Brief pg. 17
other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002)

(“A parent's abusive conduct directed toward one child

will suffice to support termination as to other

children.”). He was also declared to be an unfit parent

when his rights to possession of his son were restricted

to supervised visits only, and his rights to

communication with his son were restricted, except when

Schlittler has possession of the boy. (RR 3:88-89, 96-

97)

Further, Schlittler’s family was broken up by his

own criminal actions and by his ex-wife’s civil actions.

(RR 3:87, 96-97) The State did not attempt to break up

his family by enacting Penal Code § 38.111. Rather, §

38.111 sought to safeguard the family against actions

exactly like those taken by Schlittler. He indirectly

tormented his victim and further eroded the victim’s

family unity. (RR 3:100) Schlittler also put his son into

a lose-lose situation when Schlittler asked the boy to

go around his own mother and get his sister to recant her

allegations against Schlittler.

PD-1505-14 State’s Brief pg. 18
 Texas Penal Code § 38.111 is narrowly tailored to

serve a compelling state interest, and so it meets the

standards required by the Due Process clause. It only

applies to persons who have been proven beyond a

reasonable doubt to be sexual offenders, and it protects

only their young victims. As to Schlittler, it did not

apply to him until he was proven beyond a reasonable

doubt to be a sexual offender and it should have operated

to protect Schlittler’s victim from his indirect

influence through her brother.

Response to Second Ground for Review: Penal Code §
38.111 does not violate Schlittler’s constitutional right to
Equal Protection.

A statute is evaluated under “strict scrutiny” if it

interferes with a “fundamental right” or discriminates

against a “suspect class.” Cannady v. State, 11 S.W.3d

205, 215 (Tex. Crim. App. 2000) (citing to Kadrmas v.

Dickinson Public Schools, 487 U.S. 450, 458, 108 S.Ct.

2481, 101 L.Ed.2d 399 (1988) and Henderson v. State, 962

PD-1505-14 State’s Brief pg. 19
S.W.2d 544, 572 (Tex.Crim.App.1997), cert. denied, 525

U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998)).

Schlittler asserts that § 38.111 violates Equal

Protection because it applies only to sex offenders, not

to other prisoners. “Neither the Supreme Court nor this

Court has recognized criminal defendants in general as

constituting a suspect class.” Dinkins v. State, 894

S.W.2d 330, 342 (Tex. Crim. App. 1995). Additionally,

federal and state courts have specifically found that

convicted sex offenders are not a suspect class. Cutshall

v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999); Barker

v. State, 335 S.W.3d 731, 736 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref'd); In re M.A.H., 20 S.W.3d 860,

866 (Tex.App.-Fort Worth 2000, no pet.). This portion

of Schlittler’s argument fails for lack of authoritative

support.

The right to parent is a fundamental right. Troxel,

530 U.S. at 65, 120 S. Ct. at 2060. Therefore, Penal Code

§ 38.111 should be upheld only if it is narrowly tailored

to promote a compelling government interest. See, e.g.,

PD-1505-14 State’s Brief pg. 20
United States v. Playboy Entm't Group, Inc., 529 U.S.

803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The

State asserts that it is.

Penal Code § 38.111 is narrowly tailored in that it

criminalizes contact only with sexual assault victims who

were younger than 17 years of age at the time of the

commission of the offense for which the person is

confined. Tex. Penal Code § 38.111 (a)(1). The Supreme

Court has consistently held that a state has a compelling

interest in protecting the well-being of its children.

See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC,

518 U.S. 727, 743, 116 S. Ct. 2374, 2386, 135 L. Ed. 2d

888 (1996) (compelling interest in protecting children

from indecent speech); Maryland v. Craig, 497 U.S. 836,

853, 110 S.Ct. 3157, 3167, 111 L.Ed.2d 666 (1990)

(protecting child's psychological well-being

sufficiently important in some cases to outweigh a

defendant's right to face-to-face confrontation);

Osborne v. Ohio, 495 U.S. 103, 110, 110 S.Ct. 1691, 1696–

1697, 109 L.Ed.2d 98 (1990) (state's interest in

PD-1505-14 State’s Brief pg. 21
protecting victims of child pornography). “The Court has

sustained laws aimed at protecting children even when

those laws have operated in the sensitive area of

constitutionally protected rights.” Henderson v. State,

962 S.W.2d 544, 562 (Tex. Crim. App. 1997), (quoting New

York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 3354–

3355, 73 L.Ed.2d 1113 (1982)).

This Court wrote:

Children are deemed to warrant protection
because of their inexperience, lack of social
and intellectual development, moral innocence,
and vulnerability. These characteristics apply
with the greatest force to the youngest
children. Moreover, the fact that crimes
directed toward young children are necessarily
targeted at the most innocent and vulnerable
members of society makes such crimes among the
most morally outrageous.
Henderson at 562.

In addition to the general concerns listed by this

Court, as applied to Schlittler, § 38.111 should have

operated to avoid disruption of the multi-dimensional

myriad of family dynamics in a family with young children

that was torn apart by Schlittler’s crime. Schlittler’s

contact with his son “about crushed” the relationship

PD-1505-14 State’s Brief pg. 22
between the boy and his mother. (RR 3:100) The

communications undermined the mother’s authority and

rights, and they taught the boy that the rules do not

apply to him and his father. (RR 3:100) The

communications served to indirectly harass Schlittler’s

sexual victim by pressuring her to change her story

regarding the sexual abuse to which Schlittler pled

guilty. (RR 3:30, 33-34, 86-87) And the communications

placed the boy in a lose-lose situation in that he either

had to betray his father or his mother and sister. The

need for the State to protect these particular children,

the victim of the sexual assault and her brother, is

evident. It is also compelling.

In conclusion, Penal Code § 38.111 as applied to

Schlittler does not violate the Equal Protection clause

of the United States Constitutuion. It is narrowly

tailored to serve a compelling state interest.

Schlittler’s second ground for review should be

overruled.

PD-1505-14 State’s Brief pg. 23
 Prayer

The State prays that this Honorable Court withdraw

its grant of review as improvidently granted. The facts

of this particular case show that a family law court had

stripped Schlittler over his fundamental right to

communicate with his son from prison, even before §

38.111 came into play. Section 38.111 could not have

operated to deny him rights that he did not have.

Alternatively, the State prays that this Honorable

Court affirm the judgment of the trial court and the

lower appellate court.

Respectfully Submitted,

/s/ Melinda Fletcher

Melinda Fletcher
Appellate Attorney
SBN 18403630

Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105

Phone 806.367.9407
Fax 866.923.9253
mfletcher@sputexas.org

PD-1505-14 State’s Brief pg. 24
 Certificate of Compliance

I hereby certify that, according to Microsoft Word,

this brief contains a total of only 3,613 words. The

length of this document is in compliance with the Texas

Rules of Appellate Procedure.

/s/ Melinda Fletcher

Melinda Fletcher

Certificate of Service

I hereby certify that a true and correct copy of the

foregoing Brief for the State was served on Kenneth Nash,

the attorney for Schlittler, via electronic mail on this

the 20th day of April, 2015.

/s/ Melinda Fletcher

Melinda Fletcher

PD-1505-14 State’s Brief pg. 25