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Fleming v. State

In four points, appellant argues that the Texas Penal Code �22.021, is unconstitutional under the federal due process and the Texas due course of law provisions because of its failure to require the State to prove that he had a culpable mental state ("mens rea") relating to the alleged victim's age when engaging in the conduct alleged; and its failure to recognize an affirmative defense based on his reasonable belief that the alleged victim at the time was 17 years of age or older. The Fort Worth Court of Appeals concluded that �22.021 is neither arbitrary nor capricious and that it furthers the legitimate government interest of protecting children. Thus, the court overruled each of appellant's four points. Fort Worth Court of Appeals, No. 2-09-215-CR, 08-10-2010

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OPINION

Appellant Mark Fleming entered a negotiated plea of guilty to aggravated sexual assault of a child younger than fourteen years of age.*fn1 The trial judge sentenced Fleming to ten years’ confinement, suspended imposition of the sentence, and placed him on ten years’ community supervision. Among the conditions of punishment, Fleming must register as a sex offender. We will affirm. In four points, Fleming argues that the Texas Penal Code provision under which he was convicted, section 22.021, is unconstitutional under the federal due process and the Texas due course of law provisions because of its: failure to require the State to prove that [Fleming] had a culpable mental state (“mens rea”) relating to the alleged victim’s age when engaging in the conduct alleged; and . . . its failure to recognize an affirmative defense based on [Fleming's] reasonable belief that the alleged victim at the time was 17 years of age or older.*fn2

We disagree.

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