Affirmed and Majority and Concurring Memorandum Opinions filed March 

12, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00902-CR

DOUGLAS HARRY YOUNG, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 212th District Court 

Galveston County, Texas 

Trial Court Cause No. 16CR2784 

C O N C U R R I N G ME M O R A N D U M O P I N I O N

Although I concur in the judgment, I wish to express a concern with the 

underlying constitutional implications of appellant’s conviction. 

The People are guaranteed a limited number of fundamental and clearly 

established constitutional rights; the right to due process of law is indisputably on 
2

this preciously short list.1 Here, the putative victim of the aggravated sexual 

assault did not have a guardian and the record is devoid of any evidence that she 

has ever been the subject of a proceeding that adjudicated her to be incompetent; 

therefore, she is to be presumed competent for all relevant purposes as a matter of 

law.2

 Our decision today, however, effectively approves the jury’s determination 

that she is incompetent. I find this determination (and the implications thereof) 

constitutionally troubling. 

Specifically, the putative victim has now been deprived of (inter alia) the 

ability to have sexual relations without exposing her partners to the prospect of 

lengthy prison sentences even though the record lacks any evidence she was 

provided with either notice that her competence would be adjudicated or an 

opportunity to be heard. This outcome is particularly troubling because the alleged 

victim was not a party to the proceedings below; as a result, she appears to lack 

standing to contest the jury’s determination or its effects on her. 

 

1

See U.S. Const. amend. XIV, § 1; see also Tex. Const. art. I, § 19 (“No citizen of this 

State shall be deprived of life, liberty, property, privileges or immunities, or in any manner 

disfranchised, except by the due course of the law of the land.”) and MAGNA CARTA, ch. 39 (“No 

free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or 

exiled, or deprived of his standing in any other way, nor will we proceed with force against him, 

or send others to do so, except by the lawful judgment of his equals or by the law of the land.”). 

Cf. Benge v. Williams, 472 S.W.3d 684, 739 (Tex. App.—Houston [1st Dist.] 2014) (Jennings, J., 

dissenting from denial of en banc reconsideration) (“As illustrated by Dickens’s tale, if we, as 

lawyers and judges in the year 2015, want to preserve and protect the 800-year-old legacy of 

Magna Carta, we must be ever vigilant in the performance of our duties as stewards and 

‘guardians of the law.’”), aff’d, 548 S.W.3d 466 (Tex. 2018), and Turner v. Robinson, 534 

S.W.3d 115, 128 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). 

2

 Tex. Health & Safety Code Ann. § 592.021 (“Each person with an intellectual disability 

has the right to...presumption of competency.”). See also Tex. Health & Safety Code Ann. § 

592.011 (a) (“Each person with an intellectual disability in this state has the rights, benefits, and 

privileges guaranteed by the constitution and laws of the United States and this state.”) and Tex. 

Health & Safety Code Ann. § 591.002 (e) (“[P]ersons with an intellectual disability who have 

not been adjudicated incompetent and for whom a guardian has not been appointed by a due 

process proceeding in a court have the same rights and responsibilities enjoyed by all citizens of 

this state.”).
3

Although appellant summarily mentions that the alleged victim’s 

constitutional rights are affected by his conviction, these issues were not presented 

to the trial court below (thereby highlighting the implicated inequities). 

Additionally, appellant’s constitutional attack is expressly limited to Texas Code of 

Criminal Procedure § 38.072 (Hearsay Statement of Certain Abuse Victims); as a 

result, the constitutionality of the statutory scheme which authorizes Texas juries 

to effectively determine the competence of abuse victims was neither presented to 

the trial court nor properly briefed herein. Therefore, the alleged victim in this 

case had her rights effectively adjudicated without due process yet has no 

immediately apparent remedy therefor; this outcome is anathema under our system 

of laws.3

 

We are powerless to disturb a jury’s determination of properly submitted 

factual determinations (absent errors that are not presented herein); however, the 

instant case presents us with a statutory scheme that appears to effectively punish 

disabled people who voluntarily participate in the judicial process. While I believe 

it is beyond dispute that we as a society have a responsibility to care for those who 

are incapable of caring for themselves, the judiciary remains entrusted with the 

solemn obligation to ensure that the People’s clearly established constitutional 

rights remain clearly established. I therefore write separately simply to identify the 

constitutional threat presented herein in the hopes that (1) parties will both timely 

present these concerns to trial courts and properly brief them on appeal and (2) the 

 

3

See Marbury v. Madison, 1 Cranch 137, 163, 2 L. Ed. 60 (1803) (“‘[I]t is a general and 

indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at 

law, whenever that right is invaded.’”) (quoting 3 W. BLACKSTONE, COMMENTARIES *23). See 

also Bledsoe v. Int'l R.R. Co., 40 Tex. 537, 594 (1874).
4

Legislature will acknowledge and address the dangers presented by Texas statutes 

relating to the sexual assault of those who are disabled. 

 /s/ Meagan Hassan

 Justice 

Panel consists of Justices Christopher, Jewell, and Hassan (Christopher, J., 

majority). 

Do Not Publish — Tex. R. App. 47.2(b).