Opinion issued June 30, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00736-CR
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ESSEABASI SAMUEL WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1455285
OPINION
Appellant, Esseabasi Samuel Williams, pleaded guilty to the offense of
engaging in a group criminal activity, concerning the fraudulent use of identifying
information, with an agreement that punishment would not exceed 30 years in
prison.1 Following a presentence investigation, the trial court found Appellant
guilty and sentenced him to 30 years in prison. In one issue on appeal, Appellant
asserts that the trial court erred in denying his motion to quash the indictment for
fraudulent use of identifying information based on his argument that Texas Penal
Code section 32.51 is facially unconstitutional.
We affirm.
Background
On January 22, 2015, Appellant was indicted for working with others to
fraudulently misuse identifying information. The indictment read as follows:
Esseabasi Samuel Williams, [Appellant], . . . on or about January 23,
2013, did then and there unlawfully, with intent to establish, maintain
and participate in a combination, and in the profits of a combination,
. . . commit the offense of Fraudulent Use of Identifying Information,
namely, in that he did unlawfully with the intent to defraud and harm
another, obtain, possess, and use . . . identifying information, namely,
the name, date of birth, and social security number of [names
omitted], hereafter called the Complainant, without the Complainant’s
consent.
Appellant filed a motion to quash the indictment, asserting Penal Code
section 32.51 is an overbroad, content-based restriction on speech.2 The trial court
denied Appellant’s motion. Following the denial, Appellant pleaded guilty, and
1
See TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).
2
Appellant also alleged, in his motion, that the statute is unconstitutionally vague
and violates the Dormant Commerce Clause, but he does not raise these issues on
appeal.
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was sentenced to 30 years in prison. Appellant timely filed his notice of appeal the
same day. Appellant now appeals. In one issue, Appellant challenges the trial
court’s denial of his motion to quash the indictment.
Motion to Quash the Indictment
A. Standard of Review
We review de novo a trial court’s ruling on a motion to quash an indictment.
See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Likewise, we
review the constitutionality of a criminal statute de novo. See Ex parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013).
B. Legal Principles
In assessing a constitutional challenge, the statute is presumed to be valid
and the challenging party bears the burden to prove its unconstitutionality. Id. at
15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). While a general
facial challenge requires the challenger to show the statute is unconstitutional in all
its applications, under the First Amendment’s “overbreadth” doctrine, a law may
be unconstitutional on its face even if it might have some legitimate applications.
State v. Johnson, 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015). The
overbreadth of a statute must prohibit a substantial amount of protected expression
relative to the statute’s plainly legitimate sweep. Ex parte Perry, 483 S.W.3d 884,
902 (Tex. Crim. App. 2016) (citing United States v. Williams, 553 U.S. 285, 292,
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128 S. Ct. 1830, 1838 (2008)). In addition, the danger that the statute will be
unconstitutionally applied must be realistic and not based on fanciful hypotheticals.
Id.
Additionally, when a criminal law restricts speech based upon content, the
usual presumption of validity is reversed, and the government must rebut the
presumption that a content-based restriction is invalid. Ex parte Lo, 424 S.W.3d at
15. If one must consider the content of the speech to decide if the speaker violated
the law, then the regulation is content-based. Id. at 15 n.12.
C. Analysis
Appellant asserts that the trial court erred in failing to quash his indictment
for fraudulent use of identifying information. He contends that Penal Code section
32.51(b), the statute upon which his conviction was based, is an overbroad,
content-based restriction on speech, and therefore violates the right to free
expression of personal views guaranteed by the First Amendment. See U.S.
CONST. amend. I; TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).
Appellant acknowledges that this Court recently rejected the same
arguments concerning Penal Code section 32.51 in Horhn v. State, 481 S.W.3d 363
(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).3 Consequently, we follow
3
The Texas Court of Criminal Appeals refused petition in Hohrn on April 27, 2016.
Horhn v. State, 481 S.W.3d 363 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).
4
Horhn and affirm the trial court’s denial of Appellant’s motion to quash the
indictment.
1. Penal Code section 32.51
Appellant argues that Penal Code section 32.51(b) is facially
unconstitutional. Section 32.51 provides as follows:
(b) A person commits an offense if the person, with the intent to harm
or defraud another, obtains, possesses, transfers, or uses an item of:
(1) identifying information of another person without the other
person’s consent;
(2) information concerning a deceased natural person, including
a stillborn infant or fetus, that would be identifying information
of that person were that person alive, if the item of information
is obtained, possessed, transferred, or used without legal
authorization; or
(3) identifying information of a child younger than 18 years of
age.
TEX. PENAL CODE ANN. § 32.51(b). The Penal Code further defines “identifying
information” to mean “information that alone or in conjunction with other
information identifies a person,” including name, date of birth, or government-
issued identification number, among other types of information. Id. § 32.51(a)(1).
The Penal Code also defines “harm” as meaning “anything reasonably regarded as
loss, disadvantage, or injury. . . .” Id. § 1.07(a)(25) (Vernon Supp. 2015).
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2. Section 32.51(b) Does Not Implicate the First Amendment and Is
Not Unconstitutional as Decided in Horhn
In Horhn, this Court held that Penal Code section 32.51(b) does not
implicate the free speech guarantees of the First Amendment. Horhn, 481 S.W.3d
at 373–74. Initially, we explored the distinction between expressive conduct, such
as photographs and visual recordings, and non-communicative conduct, such as
harassing people by telephone. Id. While expressive conduct implicates the First
Amendment, non-communicative conduct does not. Id. at 373–75. Here, we are
concerned with how prohibited conduct fits into this schema.
Prohibited conduct can be divided into conduct intended to communicate
and conduct intended to harm or harass. Id. Conduct is intended to communicate,
and implicates the First Amendment protections, “if (1) there was an intent to
convey a particularized message, and (2) the likelihood was great that the message
would be understood by those who viewed it.” Id. at 373 (citing Ex parte
Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014)). In other words,
prohibited conduct implicates the First Amendment if the statute proscribes
conduct intended to communicate an understandable message. Id. If, conversely,
the defendant intends their conduct to harm or harass, then the statute focuses on
the non-communicative part of the interaction, or the manner of communication,
even if the conduct includes spoken words. Id. at 374–75 (citing Scott v. State, 322
S.W.3d 662, 669–70 (Tex. Crim. App. 2010), abrogated on other grounds by
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Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). Statutes prohibiting the
harmful manner of communication do not implicate the First Amendment. Id. at
375.
In Horhn, we ultimately held that Penal Code section 32.51 regulates non-
communicative conduct, which is not protected by the First Amendment. Id. at
375–76. Considering the statute’s language, we held that section 32.51 requires
the specific intent to harm or to defraud and does not specifically reference spoken
words or other communicative conduct. Id. “The type of conduct prohibited by
section 32.51(b)—obtaining, possessing, transferring, or using identifying
information with the intent to harm or defraud—is conduct that is ‘essentially non-
communicative, even if the conduct includes spoken words.’” Id. (quoting Scott v.
State, 322 S.W.3d at 670); see TEX. PENAL CODE ANN. § 32.51(b). The statute
focuses on conduct not to target acts of expression, but to address the harms
resulting from identity theft. Id. at 366, 375. Thus, we concluded that the
regulated conduct is essentially non-communicative and does not implicate First
Amendment protections. Id. at 375–76. We further conclude, even if section
32.51(b) did regulate communicative conduct, however, that conduct would not be
protected by the First Amendment because it invades another’s privacy interests to
harm them. Id. at 375.
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Appellant argues that section 32.51(b) unconstitutionally criminalizes the
use of identifying information in political attacks and for leverage in negotiations.
See TEX. PENAL CODE ANN. § 1.07(a)(25) (defining harm as “anything reasonably
regarded as a loss, disadvantage, or injury.”). He provides the following examples
of conduct that would be prohibited: releasing a birth certificate to prove a
candidate’s ineligibility for office; using voter registration records to prove an
opponent voted in the other party’s primary; providing criminal or bankruptcy
records to the news media; and using a person’s criminal record for concessions in
a divorce proceeding. Contrary to Appellant’s assertion, however, the Court of
Criminal Appeals has recognized that the statute’s purpose is to prevent identity
theft because it is included within the Fraud subchapter of the Texas Penal Code.
Jones v. State, 396 S.W.3d 558, 562–63 (Tex. Crim. App. 2013). The statute’s
purpose is not to criminalize the use of identifying information in political attacks
or for leverage in negotiations. See id. Thus, these examples do not meet the intent
requirement of the statute, which is to harm or to defraud another. See id.; see also
Horhn, 481 S.W.3d at 376.
Because in Horhn, we concluded that section 32.51(b) does not implicate the
First Amendment, we likewise concluded that the “statute is not overbroad because
it does not reach ‘a substantial amount of constitutionally protected conduct.’” Id.
at 376 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
8
489, 494, 102 S. Ct. 1186, 1191 (1982); Garcia v. State, 212 S.W.3d 877, 889
(Tex. App.—Austin 2006, no pet.)). We also held that “because section 32.51(b)
does not implicate the First Amendment it is not a content-based restriction on
speech.” Id. (citing Ex parte Thompson, 442 S.W.3d at 334).
Because he raises the same arguments rejected in Horhn, we conclude that
Appellant failed to show that section 32.51(b) is facially unconstitutional. Horhn,
481 S.W.3d at 376; see also Ex parte Lo, 424 S.W.3d at 15; Rodriguez, 93 S.W.3d
at 69. We hold that the trial court did not err in denying Appellant’s motion to
quash the indictment.
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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