In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00158-CR
EX PARTE CHRISTOPHER CORNWALL, APPELLANT
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2015-406,640, Honorable William R. Eichman II, Presiding
October 19, 2017
OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, Christopher Cornwall, appeals from an order denying his pretrial
application for writ of habeas corpus. By his application, appellant raised various facial
challenges to the constitutionality of the pre-2015 version of subsection (c) of the
“Online Solicitation of a Minor” statute. We will affirm the trial court’s order.
Background
Because this is an interlocutory appeal of the denial of a pretrial writ of habeas
corpus, none of the facts have yet been determined by a trier of fact. However, the
facts of the case are immaterial to the constitutional issues being raised by appellant.
Procedurally, appellant was indicted on July 21, 2015, for the offense of online
solicitation of a minor that was alleged to have occurred on May 14, 2015. In April of
2017, appellant filed a pretrial writ of habeas corpus challenging the facial
constitutionality of the pre-2015 version of section 33.021(c) of the Texas Penal Code.
Appellant’s application contended that the statute is unconstitutional because: (1) it is
an overbroad, content-based regulation on expression that impermissibly criminalizes
constitutionally protected speech; (2) it is a content-based regulation of speech that
impermissibly prohibits protected as well as unprotected speech; and (3) it violates his
due process and Sixth Amendment rights because it is too vague to give due notice of
what is prohibited and prohibits him from presenting a defense negating his culpable
mental state. After a brief hearing, the trial court denied appellant’s application.
Appellant timely filed notice of appeal of the denial.
On appeal, appellant contends that section 33.021(c) is facially unconstitutional.
In his brief, he contends that the statute is overbroad, constitutes a content-based
regulation of speech, and violates his due process and Sixth Amendment rights.
Analysis
The Statute
Before September 1, 2015, section 33.021 provided, as relevant in this case:
(a) In this section:
(1) “Minor” means:
(A) an individual who represents himself or herself to be younger
than 17 years of age; or
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(B) an individual whom the actor believes to be younger than 17
years of age.
***
(c) A person commits an offense if the person, over the Internet, by
electronic mail or text message or other electronic message service
or system, or through a commercial online service, knowingly
solicits a minor to meet another person, including the actor, with the
intent that the minor will engage in sexual contact, sexual
intercourse, or deviate sexual intercourse with the actor or another
person.
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of
the offense.
See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049,
4050 (amended 2007, 2015) (current version at TEX. PENAL CODE ANN. § 33.021 (West
2016)).1
Standard of Review
Whether a statute is facially unconstitutional is a question of law that we review
de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). A facial challenge to
a statute’s constitutionality must be based on a claim that the statute always operates
unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App.
2006). As such, as the reviewing court, we are tasked with considering the “statute only
1
In March of 2015, the Legislature revised the statute by, inter alia, eliminating subsections (d)(2)
and (d)(3), as well as removing the “represents” language from the definition of “minor” found in
subsection (a). Acts of May 22, 2015, 84th Leg., R.S., ch. 61, 2015 Tex. Gen. Laws 1036.
References to “section 33.021” in this opinion will be to the version of this provision that was in
effect prior to the 2015 amendment.
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as it is written, rather than how it operates in practice.” State ex rel. Lykos v. Fine, 330
S.W.3d 904, 908 (Tex. Crim. App. 2011).
We presume that the challenged statute is valid and that the Legislature has not
acted arbitrarily or unreasonably. Ex parte Lo, 424 S.W.3d at 15 (citing Rodriguez v.
State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). Generally, the burden to establish the
statute’s unconstitutionality is on the party challenging the statute. Id. When the statute
does not depend upon the content of speech or is conduct-based, we construe the
statute’s plain language, unless the language is ambiguous or would lead to absurd
results the Legislature could not have intended. Delacruz v. State, No. 07-15-00230-
CR, 2017 Tex. App. LEXIS 6018, at *7 (Tex. App.—Amarillo June 29, 2017, no pet.)
(mem. op., not designated for publication). Under this review, we must uphold the
statute if we can determine a reasonable construction that will render it constitutional.
Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d).
However, when a statute seeks to restrict and punish speech based on its
content, it is the government that bears the burden to prove that the statute is
constitutional. Id. Stated another way, content-based regulations (laws that distinguish
favored from disfavored speech based on the ideas expressed) are presumptively
invalid and the burden is on the government to rebut that presumption. Ashcroft v.
ACLU, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004); Ex parte Lo, 424
S.W.3d at 15. We are required to apply the “most exacting scrutiny to regulations that
suppress, disadvantage, or impose differential burdens upon speech because of its
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content.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129
L.Ed.2d 497 (1994).
Overbreadth
Appellant contends that section 33.021(c) is unconstitutionally overbroad
because it criminalizes speech between an adult and a “minor” without requiring the
adult to intend to meet the “minor” and without requiring the “minor” to be legally
underage. This contention has recently been expressly addressed by the Texas Court
of Criminal Appeals in Ex parte Ingram, No. PD-0578-16, 2017 Tex. Crim. App. LEXIS
588, at *9-23 (Tex. Crim. App. June 28, 2017).
The Court determined that whether an adult may be prosecuted for speech
without a concurrent intent to meet the minor is not a cognizable issue in a pretrial
application for writ of habeas corpus. This is so because, in the context of a pretrial
habeas proceeding, “constitutional attacks on free-standing anti-defensive issues are
not cognizable on appeal.” Id. at *2. Appellant’s contention that section 33.021(c)
criminalizes speech when the speaker has no intention to meet the minor is based on
the freestanding anti-defensive issues contained in subsections (d)(2) and (d)(3).
These anti-defensive issues are not cognizable because they cannot be “law applicable
to the case” unless and until some evidence at trial raises the anti-defensive issue and,
in a pretrial habeas proceeding challenging the facial constitutionality of a statute, no
evidence has been presented. Id. at *7-8.
Appellant also contends that the pre-2015 definition of “minor” is substantially
overbroad because it prohibits “age-play” between two consenting adults. The definition
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of “minor” is “an individual who represents himself or herself to be younger than 17
years of age.” § 33.021(a)(1)(A). The Texas Court of Criminal Appeals has construed
the word “represents” to mean that the individual “states his age as a fact, to be
accepted as true.” Ex parte Ingram, 2017 Tex. Crim. App. LEXIS 588, at *13. Then, in
specifically addressing appellant’s “age-play” contention, the Court stated,
When a statute that is designed to protect children against predatory
practices proscribes mostly speech that is not protected by the First
Amendment but incidentally encompasses unusual situations that are
protected by the First Amendment,[2] the correct approach is to uphold the
statute against an overbreadth challenge and deal with the unusual
situations on an “as applied” basis when they arise. We reject appellant’s
contention that the definition of “minor” renders the online solicitation
statute unconstitutionally overbroad.
Id. at *23.
The Texas Court of Criminal Appeals held that the pre-2015 version of section
33.021(c) is not unconstitutionally overbroad. Id. As an intermediate appellate court,
we are bound to follow the precedent of the Texas Court of Criminal Appeals. Ervin v.
State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see TEX.
CONST. art. V, § 5(a) (Court of Criminal Appeals is final authority for criminal law in
Texas).
Restriction on Speech or Conduct
Appellant also contends that section 33.021(c) is a content-based restriction on
speech and that, as such, it fails strict scrutiny because it criminalizes protected as well
2
The specific “unusual situation” addressed by the Court was when an undercover police officer
who was over the age of 17 represents herself to be 16 but, unbeknownst to her, the defendant knows
that the officer is over 17 and also knows that she is unaware of his knowledge of her age. Id. at *22-23.
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as unprotected speech. However, the Texas Court of Criminal Appeals has concluded
that section 33.021(c) imposes a restriction on the conduct of inducing a child to engage
in illegal sexual acts. See Ex parte Ingram, 2017 Tex. App. LEXIS 588, at *16-19; Ex
parte Lo, 424 S.W.3d at 16-17.3 The First Amendment does not apply to speech that
attempts to induce a child to engage in illegal sexual activity. Ex parte Ingram, 2017
Tex. Crim. App. LEXIS 588, at *17-18. Freedom of speech does not extend to speech
used as an integral part of conduct that violates a valid criminal statute, such as the
online solicitation of a minor statute involved in this case. Id. at *18.
Due Process and Sixth Amendment
Appellant also contends that section 33.021(c) violates due process because it is
too vague to provide adequate notice of what speech or expressive conduct violates the
statute. Appellant’s contention is premised on the interplay between subsection (c) and
the anti-defensive issues found in subsections (d)(2) and (d)(3). Additionally, appellant
contends that subsections (d)(2) and (d)(3) violate the Sixth Amendment by preventing
a defendant from presenting a defense as to his culpable mental state. As to both of
these contentions and as we have previously discussed, challenges to the facial
constitutionality of a statute that rely on anti-defensive issues are not cognizable in a
pretrial habeas corpus proceeding. Id. at *2. These freestanding anti-defensive issues
are not “law applicable to the case” until trial evidence raises them and, as such, a
constitutional challenge involving them cannot be presented before trial. Id. at *7.
3
This Court has, likewise, concluded that section 33.021(c) is aimed at conduct rather than the
content of speech. Delacruz, 2017 Tex. App. LEXIS 6018, at *6-7; Ex parte Fisher, 481 S.W.3d 414, 419
(Tex. App.—Amarillo 2015, pet. ref’d).
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Conclusion
As the Texas Court of Criminal Appeals has addressed and rejected the
constitutional challenges raised by appellant’s habeas corpus proceeding, we affirm the
trial court’s denial of appellant’s application for writ of habeas corpus.
Judy C. Parker
Justice
Publish.
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Ex Parte Christopher Cornwall
Combined Opinion