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State v. Rosseau

The trial court quashed multiple paragraphs of the indictment that were based on a "bigamy provision" that elevates the range of punishment for alleged sexual assault. Because the quashed provisions were alleged in the indictment, and thus are literally a portion of an indictment, Texas Code of Criminal Procedure Art. 44.01(a)(1) permits the state's appeal. Because the appellee failed to show that the bigamy provision is unconstitutional in every possible respect, the statute is not facially unconstitutional. The court of appeals' judgment is affirmed and the case is remanded to the trial court. Court of Criminal Appeals, No. PD-0233-12, 04-17-2013

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OPINION

This is a pretrial appeal. In his petition for discretionary review, Robert Louis Rosseau, appellee, challenges the judgment of the court of appeals that reversed the trial court’s order quashing a portion of the indictment. See State v. Rosseau, No. 04-10-00866-CR, 2011 WL 6207037, at *9 (Tex. App.–San Antonio Dec. 14, 2011) (not designated for publication). On appellee’s motion, the trial court quashed multiple paragraphs of the indictment, which were based on a "bigamy provision" that elevates the range of punishment for sexual assault whenever "the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under [Texas Penal Code] Section 25.01."*fn1 With respect to appellee’s jurisdictional challenge, we agree with the court of appeals that it had jurisdiction to address the State’s appeal of the trial court’s order granting the motion to quash. With respect to appellee’s argument that the bigamy provision at Texas Penal Code Section 22.011(f) is facially unconstitutional, we disagree with the court of appeals’s conclusion that appellee did not present a facial challenge, but agree with its alternative holding that appellee failed to show that the statute operates unconstitutionally in all its applications. We, therefore, affirm the judgment of the court of appeals.

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