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