AFFIRM; and Opinion Filed September 10, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00923-CR
COREY THOMAS FREEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80780-2011
OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
Corey Thomas Freeman waived his right to a jury trial and was convicted by the trial
court of online solicitation of a minor. In three points of error on appeal, he challenges the
constitutionality of the online solicitation of a minor statute and claims the trial court erred in
overruling his motion to suppress. We affirm the trial court’s judgment.
I. FACTUAL BACKGROUND
Evidence adduced at appellant’s trial showed appellant communicated in an internet chat
room with a person identified by the screen name of “brook_chick13,” who stated in
communications to appellant that she was a thirteen-year-old girl. Their conversations, over the
span of several months, gradually escalated in sexual explicitness. During the correspondence,
appellant mentioned wanting to take the girl’s clothes off, kissing her, pulling off her pants and
licking her, and “sliding into” her—all the while being reminded by her that she was only
thirteen years old. In actuality, appellant was communicating with a male police officer.
The officer sent appellant a few photographs of the “fictitious Brook.” At trial, the
officer explained that he used photographs of a small, young-looking detention officer and that
none of the photographs was sexually explicit. After taking appellant into custody and advising
him of his Miranda rights, the officer questioned appellant about his online conversations with
“Brook.” Appellant “couldn’t explain why he was chatting with a 13-year old.” When asked if
he recalled appellant “ever saying that he didn’t really believe it was a 13-year-old,” the officer
stated that he did not recall such a statement. Appellant told the officer that he does chat with
minors “but when he discovers they’re a minor he stops the chat.” Under cross-examination, the
officer opined that a person would violate the law if he solicited a person who originally told him
she was fifteen years old and then later said she was actually twenty-five years old, or vice versa.
He further stated it was possible to charge a person with online solicitation of a minor after
having represented to the person that the solicited minor was around thirteen years old but
providing the person with a photograph of a twenty-five-year-old woman. Appellant did not
testify in his defense.
II. CONSTITUTIONALITY OF ONLINE SOLICITATION OF A MINOR STATUTE
In his initial argument under his first two points of error, 1 appellant challenges on its face
one theory of criminal liability in the online solicitation of a minor statute, claiming it violates
the Texas and United States Constitutions because it makes sexually explicit communications
with a recipient who represents himself or herself to be under seventeen years old a strict liability
offense. He claims this deprives him of a mistake-of-fact defense.
1
We consider the substance of appellant’s arguments, not what he labeled them. Thus, in his first two points of
error we discern two challenges to the constitutionality of Texas’s online solicitation of a minor statute: substantive
due process and overbreadth in violation of the First Amendment.
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The Texas Legislature has defined the elements of online solicitation of a minor, in
relevant part, as follows:
A person who is 17 years of age or older commits an offense if, with the intent to
arouse or gratify the sexual desire of any person, the person, over the Internet, by
electronic mail or text message or other electronic message service or system, or
through a commercial online service, intentionally:
(1) Communicates in a sexually explicit manner with a minor….
TEX. PENAL CODE ANN. § 33.021(b) (West 2011). “Sexually explicit” is defined in the statute as
“any communication, language, or material, including a photographic or video image,” that
pertains to or describes “sexual conduct.” Id. § 33.021(a)(3); see also id. § 43.25(a)(2) (defining
“sexual conduct”).
The definition of “minor” is the source of appellant’s constitutional challenge. “Minor”
is defined in the statute as,
(A) an individual who represents himself or herself to be younger than 17 years of
age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
Id. § 33.021(a)(1) (emphasis added). In statutes, “or” separates words or phrases in an alternate
relationship, signifying that either of the separated words or phrases may be employed without
the other. Jones v. State, 175 S.W.3d 927, 932-33 (Tex. App.—Dallas 2005, no pet.). 2
2
The State relies on Lo v. State, 393 S.W.3d 290, 293 (Tex. App.—Houston [1st Dist.] 2011, pet. granted), to
argue that the statute is not a strict liability statute because it has a scienter element that requires proof of “intent to
direct the communications or materials to a minor.” Id. at 298. Neither the State’s argument nor the Lo opinion
explains whether they intend in their use of the term “minor” both alternatives in the statutory definition of “minor.”
Thus, neither the State’s argument nor the Lo opinion explains whether the sender of sexually explicit material can
be convicted only on evidence that the recipient represented that he or she was younger than seventeen, or whether a
conviction requires additional proof that the sender believed (or knew) the recipient was younger than seventeen.
Lastly, the court in Lo addressed different challenges to the constitutionality of the online solicitation of a minor
statute, not appellant’s claims concerning the definition of “minor” in section 33.021(a)(1)(A) that we must address
here. Id. at 293-99 (challenging statute based on overbreadth, vagueness and Dormant Commerce Clause).
Accordingly, we cannot determine whether either the State or the Lo opinion addresses appellant’s interpretation of
the statute when stating that it is not a strict liability statute.
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Appellant does not challenge the constitutionality of section 33.021(a)(1)(B), which
requires the sender of the sexually explicit material to believe the recipient is younger than
seventeen years old. Appellant challenges only the constitutionality of section 33.021(a)(1)(A),
which requires proof that the recipient “represent[ed] himself or herself to be younger than 17
years of age” together with the other elements of the offense but does not require—as section
33.021(a)(1)(B) does—proof that “the actor believe[d the recipient] to be younger than 17 years
of age.” Appellant claims the absence of requiring proof of an accused’s belief about the age of
the recipient makes the statute a strict liability offense as to section 33.021(a)(1)(A). We will not
assume with appellant that section 33.021(a)(1)(A) is properly characterized as a strict liability
offense. See Lo, 393 S.W.3d at 294 (“Section 33.021(b) includes scienter requirement that
applies to each element of the offense” including intent to transmit sexually explicit material to
minor). But we will assume for the purposes of analyzing appellant’s constitutional challenges
that the sub-element of the offense in section 33.021(a)(1)(A) requires the State to prove only
that the recipient of sexually explicit communications represented to the sender that the recipient
was younger than seventeen and that a mistake of fact about the age of the recipient is not a
defense to section 33.021(a)(1)(A).
A. Texas’s Online Solicitation of a Minor Statute Does Not Violate on its Face the Right
to Due Process or Due Course of Law
Central to each constitutional challenge appellant makes is his contention that section
33.021(a)(1)(A) criminalizes sexually explicit communication to a recipient who represents the
recipient is younger than seventeen years old, whether or not the sender actually believes the
recipient is younger than seventeen years old. Appellant complains that aspect of Texas’s online
solicitation of a minor statute violates the rights to due course of law under the Texas
Constitution and due process under the federal constitution.
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Appellant did not argue or brief at trial or on appeal that the due course of law provision
in the Texas Constitution offers more protection than the Fifth and Fourteenth Amendments, so
we will evaluate his claims under the Due Process Clause only. See Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009). In his argument under the United States Constitution,
appellant asserts that his due process rights were violated because the State did not have to prove
beyond a reasonable doubt that he had a culpable mental state concerning the victim’s age. He
claims the absence of that requirement deprived him of a mistake of fact defense, thus infringing
on his due process rights.
Appellant’s burden in making a facial challenge to the statute is to prove the statute
operates unconstitutionally in every application and could never be constitutionally applied to
any defendant under any set of facts or circumstances. State v. Rosseau, 396 S.W.3d 550, 557
(Tex. Crim. App. 2013). For that reason, a “facial challenge to a statute is the most difficult
challenge to mount successfully because the challenger must establish that no set of
circumstances exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631,
633 (Tex. Crim. App. 1992).
We presume that statutes are valid and that the legislature has not acted unreasonably or
arbitrarily. Ex parte Morales, 212 S.W.3d 483, 489 (Tex. Crim. App. 2006). The person
challenging the statute bears the burden of establishing its unconstitutionality. Id. We will
uphold a statute if we can determine a reasonable construction that will both render it
constitutional and carry out the legislative intent behind the statute. Id.
Substantive due process generally protects against the arbitrary exercise of governmental
powers, unrestrained by established principles of private rights. See Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998). The substantive component of the Due Process Clause
provides heightened protection against government interference with fundamental rights or
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liberty interests. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The legislature has
the authority “to exclude elements of knowledge and diligence from [an offense’s] definition.”
Lambert v. California, 355 U.S. 225, 228 (1957). A party’s substantive due process rights are
not violated by a statute as long as any rational basis exists for the challenged action. See
Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955); Sullivan v. State, 986 S.W.2d 708,
714 (Tex. App.—Dallas 1999, no pet.). When no fundamental right or liberty interest is
involved, the State need only show a rational basis for its actions to survive a substantive due
process challenge. See Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995); Sullivan,
986 S.W.2d at 714.
Appellant’s brief seems to assert that his claims are entitled to the strict scrutiny applied
to infringement of a fundamental right. He states that freedom of speech is a fundamental right,
therefore this Court should apply a heightened standard of review in the substantive due process
analysis. But appellant’s sole argument about infringement of his right to speech is that the
statute is overly broad. An overbreadth attack on a criminal statute is recognized only as a First
Amendment challenge. United States v. Salerno, 481 U.S. 739, 746 (1987); Schall v. Martin,
467 U.S. 253, 268 n.18 (1984). Accordingly, we consider appellant’s overbreadth challenge in
the next section of this opinion and here determine that appellant did not make any argument for
application of a higher standard of review than the rational relationship test.
The legislature has a legitimate interest in protecting all children from sexual predators,
see Sullivan, 986 S.W.2d at 715, and the statute does so by allowing for the prosecution of those
who solicit someone whom they believe to be a child or someone who represents themself to be
a child. Courts have recognized that strict liability offenses that protect the health and safety of
children satisfy substantive due process as rationally related to the government’s legitimate
interest. See United States v. Ransom, 942 F.2d 775, 776–77 (10th Cir. 1991) (holding absence
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of mens rea element of the victim’s age in a federal statutory rape statute did not violate
appellant’s due process rights because it protected the health and safety of children); Scott v.
State, 36 S.W.3d 240, 241 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding absence of
requirement that actor know victim’s age in sexual assault statute did not violate Scott’s due
process rights).
Furthermore the definition of “minor” in section 33.021(a)(1)(A) provides an accused
some inherent protection through its statutory requirement of communication between the
recipient and the accused of the constitutionally critical information: the recipient’s age. While
invalidating a child pornography statute, the United States Supreme Court specifically
recognized an exception to the presumption of the requirement of mens rea to comply with
substantive due process where there is communication between the accused and the minor:
[T]he presumption [of mens rea] expressly excepted “sex offenses, such as rape,
in which the victim’s actual age was determinative despite defendant’s reasonable
belief that the girl had reached the age of consent” . . . . [because] the perpetrator
confronts the underage victim personally and may reasonably be required to
ascertain that victim’s age. The opportunity for reasonable mistake as to age
increases significantly once the victim is reduced to a visual depiction,
unavailable for questioning by the distributor or receiver [of child pornography].
United States v. X–Citement Video, Inc., 513 U.S. 64, 72 n.2 (1994) (emphasis added) (quoting
Morissette v. United States, 342 U.S. 246, 251 n.8 (1952)). In the Texas statute under
consideration, the legislature imbedded in the definition of “minor” the requirement that the
recipient communicate to the accused sender the recipient’s age. See TEX. PENAL CODE ANN.
§ 33.021(a)(1)(A). Further, in an online solicitation scenario the recipient is available for
continued questioning by the sender as the sender attempts to groom the recipient for a sexual
encounter. A defendant cannot fall within the scope of the statute without having received from
the recipient the constitutionally critical information that the recipient is younger than seventeen
years old. Thus, Texas’s online solicitation of a minor statute aligns with the majority rule in the
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United States that in certain sex crimes against minors the defendant’s knowledge of the age of
the victim is not an essential element of the offense and that this exclusion does not violate due
process. See Scott, 36 S.W.3d at 242 (compilation of federal and state opinions regarding
statutory rape).
For these reasons, we conclude that Texas’s online solicitation of a minor statute does not
violate the substantive due process clauses of the Fifth and Fourteenth Amendments when the
evidence that the person solicited was a “minor” is that the recipient represented himself or
herself to be younger than seventeen years old (section 33.021(a)(1)(A)) even absent a showing
that the sender believed the recipient was younger than seventeen years old (section
33.021(a)(1)(B)). Appellant had the burden to prove the statute operates unconstitutionally in
every application and could never be constitutionally applied to any defendant under any set of
facts or circumstances. Rosseau, 396 S.W.3d at 557. In appellant’s own case, appellant solicited
sexual contact from a person who told him she was thirteen years old, and appellant never
asserted he had reason to believe he was communicating with an adult instead. Appellant
neglected to challenge every application of the statute and could not demonstrate the
unconstitutionality of the only application he did challenge. He has therefore failed to meet his
burden in proving the statute violated substantive due process on its face. We overrule
appellant’s first argument under his first and second points of error.
B. Texas’s Online Solicitation of a Minor Statute is not Overly Broad in Violation of
the First Amendment
Appellant also challenges Texas’s online solicitation of a minor statute as interfering with
the fundamental right to freedom of speech by being overly broad. 3 Although his argument is
3
In an unspecified connection with his complaint about overbreadth, appellant mentions once (each) that the
statute is vague, arbitrary, and violates the right to privacy. Appellant provides no argument, citation to the record,
or citation to any supporting authority regarding any of these matters. Failure to cite applicable authority or provide
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sparse at best, he appears to argue the statute is overbroad because it criminalizes conduct even if
the actor was mistaken about whether the recipient of his sexually explicit material was younger
than seventeen years old. Consequently, he argues, it deprives defendants of the defense of
mistake of fact if the recipient was actually seventeen years old or older and criminalizes conduct
constituting protected speech among consenting adults.
A statute is impermissibly overbroad if it includes within its coverage speech or conduct
protected by the First Amendment in addition to properly prohibiting activities that are not
protected. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); see also Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). We hesitate to
strike down a statute on its face because of the far-reaching effect, so we do so only “as a last
resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). We will not invalidate a statute for
overbreadth merely because it is possible to imagine some unconstitutional application. In re
Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). The United States Supreme Court
requires substantial overbreath before invalidating on its face a statute regulating conduct.
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme Court has recognized that,
particularly when conduct and not merely speech is involved, the overbreadth of a statute must
“not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate
sweep.” Id. It is at the point of substantial overbreadth that the quantity of protected speech and
conduct within the statute— “at best a prediction”—justifies invalidating a statute on its face. Id.
Applying this substantial overbreadth test to cases involving the sexual exploitation of
children, the Supreme Court compared the scope of protected First Amendment material reached
substantive analysis waives an issue on appeal and we decline to make appellant’s arguments for him. See TEX. R.
APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2712 (2012).
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by a statute to the legitimate scope of the statute. Thus in Ferber, the Supreme Court upheld a
child pornography statute, dismissing the concerns about pictures used in medical textbooks as
amounting to no more than a tiny fraction of materials within the statute’s scope. Ferber, 458
U.S. at 773-74. The court explained it was a “paradigmatic case of a state statute whose
legitimate reach dwarfs its arguably impermissible applications” and that “whatever overbreadth
exists should be cured by thorough case-by-case analysis of the fact situations to which its
sanctions . . . may not be applied.” Id.
Preventing sexual exploitation and abuse of children “constitutes a government objective
of surpassing importance.” Id. at 757. The legislature has a legitimate purpose in protecting all
children from sexual predators, see Sullivan, 986 S.W.2d at 715, and the online solicitation of a
minor statute in this case does so by allowing for the prosecution of those who solicit someone
whom they believe to be a child or someone who represents themself to be a child. The Texas
Legislature narrowly tailored this statute to apply only to sexually explicit communication and a
recipient who has represented himself or herself to be younger than seventeen years old (section
33.021(a)(1)(A)) or whom the sender believes is younger than seventeen years old (section
33.021(a)(1)(B)). See TEX. PENAL CODE ANN. § 33.021(a)(1), (b).
By including in the definition of a “minor” an individual who represents himself or
herself to be younger than seventeen years old, the statute permits police officers to discover and
convict those adults who would communicate in a sexually explicit manner with children—and
possibly attempt escalating sexual contact—before the offenders can make contact with actual
children. The legislature articulated that the purpose of the bill that became section
33.021(a)(1)(A) was to permit law enforcement to intercept sexual predators while they were still
“grooming” the child before they injured the child:
Usually individuals go through a series of “grooming” steps when soliciting sex
with a child through the Internet. This process begins with befriending a child
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online, developing trust, then engaging in sexually explicit conversation, and
finally meeting with the child. By criminalizing online sexually explicit
communication with a child, the bill would allow law enforcement to stop an
offender before the offender could injure the child. It also would serve as a
deterrent to potential offenders.
House Research Org., Bill Analysis for House Criminal Jurisprudence Comm., C.S.H.B. 2228
(April 11, 2005) (available at: www.hro.house.state.tx.us/pdf/ba79r/hb2228.pdf#navpanes=0).
Thus, the legislative history indicates Texas’s online solicitation of a minor statute is a direct
outgrowth of Texas’s surpassing interest in protecting the health and safety of its children. At
the same time, the legislature balanced that interest by providing “a deterrent to potential
offenders,” that is requiring either notice from the recipient that the recipient was younger than
seventeen years old or an actual belief by the offender that the recipient was younger than
seventeen years old. Under either set of facts—notice or belief—an offender has all the
information necessary to conform his conduct to the law. To paraphrase the Supreme Court, one
would hardly be surprised to learn that communicating sexually explicit material to a child
younger than seventeen years old is not an innocent act. Cf. United States v. Freed, 401 U.S.
601, 607, 609 (1971) (“One would hardly be surprised to learn that possession of hand grenades
is not an innocent act.”).
Speech attempting to orchestrate the sexual abuse of children is no more constitutionally
protected than speech attempting to arrange any other type of crime. United States v. Hornaday,
392 F.3d 1306, 1311 (11th Cir. 2004). Communication used as an integral part of conduct in
violation of a criminal statute is only rarely protected by the constitutional freedom of speech.
See United States v. Stevens, 130 S. Ct. 1577, 1586 (2010). Appellant, therefore, does not have a
constitutionally protected right of speech to communicate sexually explicit material to a recipient
who represents to appellant that the recipient is younger than seventeen years old or whom
appellant believes is younger than seventeen years old.
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Appellant’s complaint about the definition of the term “minor” is that it precludes a
mistake of fact defense. He argues that the statute would have permitted the State to convict
him even if he had been told at one point that “Brook” was twenty-five years old and received a
photograph of “Brook” depicting a twenty-five-year-old woman. In the record before us, the
testimony from law enforcement officers established that they have never enforced the statute in
a situation hypothecated by appellant: where the recipient inconsistently represented him or
herself to be both younger and older than seventeen years old. Appellant’s hypothetical is
merely an imagination of some unconstitutional application without an evidentiary basis. He
fails to demonstrate any quantum of constitutionally protected speech endangered by the statute
in comparison to the lawful reach of the statute. See In re Shaw, 204 S.W.3d at 15. Such
speculation amounts to at best some miniscule fraction of the communications within the scope
of section 33.021(a)(1), (b). See Ferber, 458 U.S. at 773-74. This does not indicate “a realistic
danger that the statute itself will significantly compromise recognized First Amendment
protections of parties not before the Court for it to be facially challenged on overbreadth
grounds.” Vincent, 466 U.S. at 801. To the extent appellant has succeeded in demonstrating any
overbreadth, the overbreadth of section 33.021(b) in conjunction with section 33.021(a)(1)(A) is
not substantial when compared “to its plainly legitimate sweep.” Maloney v. State, 294 S.W.3d
613, 628 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Accordingly, we conclude that
Texas’s online solicitation of a minor statute does not violate the First Amendment. We overrule
appellant’s second argument in his first and second points of error.
III. MOTION TO SUPPRESS
In his third point of error, appellant complains the trial court erred when it denied his
motion to suppress the evidence collected as the result of the State’s petition for a court order to
obtain electronic communication records from an internet service provider. He specifically
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complains that the petition wrongly lists the relevant offense as “online harassment,” rather than
online solicitation of a minor. Below the title of the offense, however, the petition specifies that
the officer is investigating a case “in which an unknown person is soliciting a minor online from
this IP address to engage in sexual contact with the minor.” Appellant raised this complaint with
the trial court, but the court overruled his motion to suppress.
Article 18.21, section 5 of the Texas Code of Criminal Procedure provides that a court
“shall issue an order authorizing disclosure of contents, records, or other information of a wire or
electronic communication held in electronic storage if the court determines that there is a
reasonable belief that the information sought is relevant to a legitimate law enforcement
inquiry.” TEX. CODE CRIM. PROC. ANN. art. 18.21, § 5(a) (West Supp. 2012). We review the
trial court’s admission of evidence under an abuse of discretion standard and uphold the trial
court’s ruling as long as it falls within the “zone of reasonable disagreement.” See Jones v. State,
111 S.W.3d 600, 606 (Tex. App.—Dallas 2003, pet. ref’d). The petition before us, along with
the officer’s testimony, makes clear that the “online harassment” reference was merely a
typographical error, that the petition specifically identified the offense being investigated, and
that the officer was justified in pursuing an order disclosing the records from the internet service
provider. We conclude the trial court did not abuse its discretion in denying appellant’s motion
to suppress. We overrule appellant’s third point of error.
IV. CONCLUSION
In conclusion, even if section 33.021(a)(1)(A) of Texas’s online solicitation of a minor
statute deprives an accused of a mistake-of-fact defense as to the age of the recipient, the statute
does not violate appellant’s substantive due process rights and is not overly broad in violation of
the First Amendment. We also conclude that the trial court did not abuse its discretion in
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denying appellant’s motion to suppress the evidence collected from his internet service provider.
Accordingly, we affirm the trial court’s judgment.
/David W. Evans/
DAVID EVANS
JUSTICE
Publish
TEX. R. APP. P. 47
120923F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
COREY THOMAS FREEMAN, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-12-00923-CR V. Trial Court Cause No. 401-80780-2011.
Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 10th day of September, 2013.
/David W. Evans/
DAVID EVANS
JUSTICE
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