Cause Number PD-1505-14

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

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

CLERK
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