Texas Appeals Court Rejects Gay Man’s Challenge to “Dating Relationship” Felony Assault Statute

A Texas appeals court has rejected a gay man's argument that his felony conviction and 25-year-sentence for beating up his boyfriend under a "dating relationship" anti-violence statute violates the federal constitution.  Ruling unanimously in Ochoa v. State of Texas, 2010 WL 1910900 (Tex.App.-Hous., 1st Dist., Dec. 2, 2010), the court found that the statute unambiguously applied to same-sex dating relationships, and that the concept of a dating relationship was sufficiently described in the statute to meet due process requirements.

According to the opinion by Justice Elsa Alcala, Alfred Ochoa and William Crump met at a "local bar" where they would occasionally socialize, play pool, drink and talk, and after three years of a platonic relationship, drifted into a sexual relationship, during with Ochoa moved into Crump's house and shared his bedroom for nine days until the relationship broke up in acrimony and Ochoa's assault on Crump.  Although there was some dispute about whether they had a "romantic" relationship, there was no doubt that it had become "intimate" during that period, and that friends and associates treated them as "boyfriends" for that brief period of time. 

On the day when things went sour, Ochoa had loaned Crump $20.  Later that day, after both men had been drinking, Ochoa demanded repayment of his $20 so he could go out to buy some crack.  Crump refused, told Ochoa he was "done with him," and offered to walk him to the nearby bus stop so he could return to his own place.  As they walked, Ochoa again demanded return of his $20 and began to hit and kick Crump when Crump refused.  Crump fell into a ditch by the road and did not fight back.  A fire marshal who happened to be driving by stopped to assist Crump and got "a good look" at Ochoa as he ran off.  The police arrived, to find Crump bleeding from his nose and mouth, eyes swollen from the beating.  When Ochoa showed up at Crump's house the next day to "apologize," one of the other men living in the house called the police, who came and arrested Ochoa.

Ochoa was charged with intentionally and knowingly causing bodily injury to Crump, a person with whom he had a dating realtionship.  Ochoa pled not guilty and the case went to trial.  He was convicted, and after stipulating to two "enhancement paragraphs" was sentenced to 25 years in prison.  The relevant statute makes his crime a misdemeanor unless he was in a "dating relationship" with the victim, in which case it becomes a felony.  Under the statutes, Tex. Penal Code Ann.  sec. 22.01(b)(2), and Tex. Fam. Code Ann. sec. 71.0021(b), a "dating relationship" is a continuing relationship, between individuals, of a romantic or intimate nature.

Ochoa moved for a new trial, asking the court to lower the conviction to misdemeanor and conduct a new punishment hearing, arguing that it was inappropriate to apply the "dating relationship" provision to him.  Ochoa argued that it was unconstitutional to apply this provision to his situation, a same-sex relationship that included sex and briefly living together but was not "romantic."  The court denied the motion.

On appeal, Ochoa challenged the evidence that a "dating relationship" existed between him and Crump, arguing that the legislature did not intend the provision to apply to same-sex relationships.  He argued that the statute, by not making explicit that it applied to same-sex relationships, was ambiguous and thus subject to interpretation. Key to his argument was that at the time the statute was passed, homosexual sodomy was a crime in Texas.  (The sodomy statute was subsequently held unconstitutional as applied to consensual adult gay sex in private by the US Supreme Court in 2003.)  He argued that the legislature could not have intended to provide special protection to a person who consensually engaged in illegal conduct.

The court countered that the statute was gender neutral on its face, and strict construction of the language would show that the genders of the parties in the relationship would not be relevant.  The question was whether the relationship went on for some period of time and was either "romantic" or "intimate."  Since Ochoa did not deny that they had lived together nine days, shared a bed and had sex together, the evidence supported the finding that the relationship was "intimate."  The court rejected Ochoa's contention that the "rule of lenity" in construing criminal statutes – a "rule" that such statutes should not be applied where the statute's application to the facts is not free of ambiguity – required setting aside his conviction, noting that it was not clear that Texas followed this rule in construing its penal code and, furthermore, it only applied in cases of ambiguity and here the court had found the statute to be clearly applicable on its face.

The court also rejected Ochoa's argument that applying the statute to a same-sex couple would produce an "absurd result" because of the homosexual sodomy law in effect when the statute was passed.  "The two statutes are not in conflict," wrote Justice Alcala.  "Although the Texas Penal Code had criminalized sexual intercourse with the same sex when this statute was enacted, the Legislature could have reasonably determined that people in these relationships, whether legal at the time or not, needed special protection from an abuser.  Furthermore, as acknowledged by plaintiff's counsel at oral argument, a 'dating relationship' between individuals of a romantic or intimate nature need not include sexual intercourse.  The Texas Penal Code has never prohibited a dating relationship between people of the same sex; rather, it disallowed 'deviate sexual intercourse.'  Because 'dating relationships' do not necessarily include sexual intercourse, there is no conflict between the Legislature's criminalization of 'deviate sexual intercourse' and its protection of persons in same-sex dating relationships from domestic violence." 

The court also observed that people in same-sex relationships, no less than different-sex relationships, are exposed to the same "greater danger of one party repeatedly abusing another." "It was not absurd for the Legislature to protect a person involved in a same-sex dating relationship from that heightened danger," Justice Alcala asserted, proceeding to find no due process violation because there was no vagueness in the statute, as the definition of "dating relationship" was specific enough to preclude any argument by Ochoa that its application to him was uncertain or questionable.  The court concluded that the statute was specific enough to provide "fair notice for an ordinary reasonable person to have a reasonable opportunity to know that the conduct is prohibited," and that it provided adequate guidance for law enforcement to avoid the problems of inconsistent application that would occur with a statute that failed to meet these due process requirements. 

The court found that Ochoa had inadequately briefed the question of state constitutionality, finding in any case that there was no precedent supporting any argument that the Texas due process clause imposed a more demanding test than the federal 14th Amendment in evaluating whether a criminal law was unduly vague.  This argument was waived in any event, because Ochoa's attorney never raised the state constitution at the trial level.  The court also found no basis to fault the work of Ochoa's trial attorney, rejecting his ineffective assistance of counsel argument.  Thus, all objections to the verdict were rejected and the judgment of the Harris county District Court was affirmed.

The ruling, while straightforward and even a bit simple-minded on its face, is significant for marking the advance towards equality for same-sex relationships under Texas law.  Even though Texas does not provide any legal status for same-sex relationships, as such, this ruling confirms that same-sex couples in Texas are covered by the laws on domestic violence through the "dating relationship" provision, an important protection in that same-sex relationships, just like different-sex relationships, sometimes suffer from domestic violence.  Certainly same-sex partners who are physically beaten within the relationship should enjoy the same legal protection as different-sex partners.

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