Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00325-CR
———————————
EX PARTE JOSHUA JERMAINE NELSON, Appellant
On Appeal from the 458th District Court
Fort Bend County, Texas
Trial Court Case No. 15-DCR-068407
MEMORANDUM OPINION
Appellant, Joshua Jermaine Nelson, appeals from the trial court’s denial of his
amended application for a writ of habeas corpus. In eight issues, appellant contends
that the trial court erred in denying him habeas relief.
We affirm.
Background
A Fort Bend County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about November 19, 2014, “did then and there, over the Internet, or
by electronic mail, or by a commercial online service, knowingly solicit [the
complainant], an individual who represented himself to be younger than [seventeen]
years of age or an individual whom [appellant] believed to be younger than
[seventeen] years of age, and not the spouse of [appellant], to meet [appellant] with
the intent that [the complainant would] engage in sexual contact or sexual
intercourse with [appellant].” Appellant pleaded not guilty to the felony offense of
online solicitation of a minor as alleged in the indictment.1
On April 22, 2019, appellant filed his amended application for a writ of habeas
corpus, asserting that he was entitled to habeas relief because the statute under which
he is indicted—Texas Penal Code section 33.021(c)—is unconstitutional and void.
Appellant asserted:
• “Section 33.021 is unconstitutionally overbroad on its face under the
First Amendment [to the United States Constitution] because it is a
content-based restriction that severely criminalizes a substantial
amount of speech protected under the First Amendment”;
• “Section 33.021 is unconstitutionally vague under the Fifth and
Fourteenth Amendments [to the United States Constitution] because
men of common intelligence must necessarily guess at its meaning
and differ as to its application”;
1
See TEX. PENAL CODE ANN. § 33.021(c), (f).
2
• “Section 33.021 violates the Dormant Commerce Clause [of the
United States Constitution] because it unduly burdens interstate
commerce by attempting to place regulations on the entirety of the
Internet”; and
• “Section 33.021 allows law enforcement to entrap persons such as
[appellant] and is therefore unconstitutional as applied.”
The trial court denied appellant’s amended application for habeas relief.
Standard of Review
We review a trial court’s ruling on a pretrial application for a writ of habeas
corpus for an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). In conducting our review, we view the facts in the light
most favorable to the trial court’s ruling and defer to the trial court’s implied findings
that the record supports. See Washington, 326 S.W.3d at 704 (citing Ex parte
Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006)). The applicant has the
burden to prove his claims by a preponderance of the evidence. Id. at 706; Ex parte
Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref’d). We will uphold
the trial court’s judgment on any theory of law applicable to the case. Ex parte
Evans, 410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref’d).
We review the constitutionality of a criminal statute de novo, as a question of
law. See Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex. 2013); Ex parte Wheeler, 478
S.W.3d 89, 93 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). Ordinarily, when
3
reviewing the constitutionality of a statute, we presume that the statute is valid and
that the Legislature has not acted unreasonably or arbitrarily. See Ex parte Lo, 424
S.W.3d at 14–15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex
parte Wheeler, 478 S.W.3d at 93. If a statute can be construed in two ways, one of
which sustains its validity, we apply the interpretation that sustains its validity.
Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d). The party challenging the statute carries the burden of establishing its
unconstitutionality. See Ex parte Lo, 424 S.W.3d at 15; Rodriguez, 93 S.W.3d at 69.
We must uphold the statute if we can determine a reasonable construction that will
render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel
Op.] 1979).
Habeas Relief
In his eight issues, appellant argues that the trial court erred in denying him
habeas relief because Texas Penal Code section 33.021(c) is “unconstitutionally
overbroad” in violation of the First, Fifth, and Fourteenth Amendments to the United
States Constitution and Article I, sections 8 and 19 of the Texas Constitution;
“unconstitutional on its face” in violation of the First Amendment to the United
States Constitution and Article I, section 8 of the Texas Constitution “as it is a
content-based [regulation] that severely criminalizes a substantial amount of
harmless speech between adults”; “unconstitutionally vague and overbroad” in
4
violation of the United States Constitution and the Texas Constitution;
unconstitutional in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and the “Due Course of Law provision
of the Texas Constitution” as it “fails to require the State to prove that [a]ppellant
had a culpable mental state . . . relating to the complain[ant’s] . . . age” and it “fails
to recognize the affirmative defense based upon [a]ppellant’s reasonable belief that
the complain[ant] . . . was [seventeen] years of age or older at the time of the alleged
offense”; and unconstitutional in violation of the Dormant Commerce Clause of the
United States Constitution. See U.S. CONST. art. I, § 8, cl. 3; U.S. CONST. amends.
I, V, XIV; TEX. CONST. art. I, §§ 8, 19.
Texas Penal Code section 33.021(c) defines the offense of online solicitation
of a minor as follows:
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.
TEX. PENAL CODE ANN. § 33.021(c). At the time of appellant’s indictment,
“[m]inor” was defined as “an individual who represents himself . . . to be younger
than [seventeen] years of age” or “an individual whom the actor believes to be
5
younger than [seventeen] years of age.”2 Act of June 18, 2005, 79th Leg., R.S. ch.
1273 § 1, 2005 Tex. Sess. Laws 1291 (amended 2015) (current version at TEX.
PENAL CODE ANN. § 33.021(a)(1)). And it was not “a defense to prosecution under
[section 33.021(c)] that . . . the actor did not intend for the meeting to occur.”3 Act
of June 18, 2005, 79th Leg., R.S. ch. 1273 § 1, 2005 Tex. Sess. Laws 1291 (amended
2015) (current version at TEX. PENAL CODE ANN. § 33.021(d)).
A. Waiver
In a portion of his fifth issue, as well as, his third, fourth, and seventh issues,
appellant argues that the trial court erred in denying him habeas relief because Texas
Penal Code section 33.021(c) violates certain provisions of the Texas Constitution.
Yet, appellant, in his amended application for a writ of habeas corpus, only argued
to the trial court that he was entitled to habeas relief because Texas Penal Code
section 33.021(c) “violates the First Amendment, the Due Process Clause, and the
Dormant Commerce Clause” of the United States Constitution. He did not assert
that section 33.021(c) violates the Texas Constitution.
2
The Legislature amended this definition, effective September 1, 2015, to define a
“[m]inor” as “an individual who is younger than [seventeen] years of age” or “an
individual whom the actor believes to be younger than [seventeen] years of age.”
Id. § 33.021(a)(1).
3
The Legislature deleted this language from the current version of the statute. See
TEX. PENAL CODE ANN. § 33.021(d). Section 33.021(d) now only states: “It is not
a defense to prosecution under [section 33.021(c)] that the meeting did not occur.”
Id.
6
To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires a
complaining party to make a specific objection or complaint and obtain a ruling on
it before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002); Ex parte James, Nos. 01-05-00282-CR,
01-05-00480-CR to 01-05-00485-CR, 2005 WL 1540791, at *3 (Tex. App.—
Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication)
(“[A]ppellant did not preserve th[e] issue for [appellate] review because he did not
raise th[e] complaint to the [trial] court in his applications for writs of habeas corpus
or at the hearing.”). And issues on appeal must track the arguments made in the trial
court. See Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet.
ref’d); see also Ex parte Letizia, No. 01-16-00808-CR, 2019 WL 610719, at *4 (Tex.
App.—Houston [1st Dist.] Feb. 14, 2019, pet. ref’d) (mem. op., not designated for
publication) (appellant did not preserve argument for appellate review because he
did not raise it in trial court in his application for writ of habeas corpus). “Where a
trial [complaint] does not comport with the issue raised on appeal, [an]
appellant . . . preserve[s] nothing for review.” Wright, 154 S.W.3d at 241; see also
Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (appellate court should
not address merits of issue not preserved for appeal); Ex parte Evans, 410 S.W.3d at
485 (declining to consider argument that appellant did not raise in application for
writ of habeas corpus in trial court); State v. Romero, 962 S.W.2d 143, 144 (Tex.
7
App.—Houston [1st Dist.] 1997, no pet.). Because appellant did not argue in his
amended application for a writ of habeas corpus that he was entitled to habeas relief
because Texas Penal Code section 33.021(c) violates certain provisions of the Texas
Constitution, we hold that appellant has not preserved for our review his third,
fourth, and seventh issues, as well as, the portion of his fifth issue in which asserts
that section 33.021(c) is “unconstitutionally vague and overbroad under . . . [the]
Texas Constitution[].”4 See TEX. R. APP. P. 33.1(a); Ex parte Perez, 536 S.W.3d
877, 880 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“In reviewing an order
denying habeas relief, an intermediate court of appeals only reviews issues that were
properly raised in the habeas petition and addressed by the trial court.”); Ex parte
Bui, 983 S.W.2d 73, 76 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see also
Ex parte Moy, 523 S.W.3d 830, 834 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d) (only addressing constitutional challenges to Texas Penal Code section 33.021
raised in appellant’s pretrial application for writ of habeas corpus).
In his sixth issue, appellant argues that the trial court erred in denying him
habeas relief because Texas Penal Code section 33.021(c) is unconstitutional in
violation of the Due Process Clause of the Fourteenth Amendment to the United
4
We note that our sister appellate court has rejected on the merits the exact arguments
raised by appellant in his third, fourth, and seventh issues, as well as, the
aforementioned portion of his fifth issue. See Ex parte Victorick, No.
09-13-00551-CR, 2014 WL 2152129, at *1–7 (Tex. App.—Beaumont May 21,
2014, pet. ref’d) (mem. op., not designated for publication).
8
States Constitution as it “fails to require the State to prove that [a]ppellant had a
culpable mental state . . . relating to the complain[ant’s] . . . age” and “fails to
recognize the affirmative defense based upon [a]ppellant’s reasonable belief that the
complain[ant] . . . was [seventeen] years of age or older at the time of the alleged
offense.” Appellant did not raise this argument in his amended application for a writ
of habeas corpus filed in the trial court. We therefore hold that appellant has also
not preserved his sixth issue for our review.5 See TEX. R. APP. P. 33.1(a); Ex parte
Perez, 536 S.W.3d at 880; Ex parte Bui, 983 S.W.2d at 76; see also Ex parte Moy,
523 S.W.3d at 834.
B. Content-Based Regulation
In his second issue, appellate argues that the trial court erred in denying him
habeas relief because Texas Penal Code section 33.021(c) violates the First
Amendment to the United States Constitution “as it is a content-based [regulation]
that severely criminalizes a substantial amount of harmless speech between adults
that is protected under the First Amendment.” See U.S. CONST. amend. I. We
address this issue first because it determines our standard of review.
The First Amendment to the United States Constitution, which prohibits laws
“abridging the freedom of speech” and applies to the States through the Fourteenth
5
In any event, our sister appellate court has rejected on the merits the exact argument
raised by appellant in his sixth issue. See id. at *7.
9
Amendment, limits the government’s power to regulate speech based on its
substantive content. Id.; Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)
(content-based regulation punishes speech based on its content); Ex parte Moy, 523
S.W.3d at 835. Content-based regulations distinguish favored from disfavored
speech based on the idea or message expressed. Ex parte Lo, 424 S.W.3d at 15; Ex
parte Moy, 523 S.W.3d at 835. And such regulations operate to restrict particular
viewpoints or public discussion of an entire topic or subject matter. Ex parte Moy,
523 S.W.3d at 835. In these situations, the usual presumption of constitutionality
does not apply; the content-based regulation is presumed invalid, and the State bears
the burden of rebutting this presumption. Ex parte Lo, 424 S.W.3d at 15; Ex parte
Moy, 523 S.W.3d at 835; Ex parte Wheeler, 478 S.W.3d at 93. This is because
regulations that suppress, disadvantage, or impose differential burdens upon speech
because of its content are subject to the most exacting scrutiny. Ex parte Lo, 424
S.W.3d at 15; Ex parte Wheeler, 478 S.W.3d at 93. That said, if a regulation
punishes conduct rather than speech, a court applies a more deferential level of
review, considering whether the regulation has a rational relationship to a legitimate
state purpose. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
The Court of Criminal Appeals has stated that Texas Penal Code section
33.021(c) regulates “the conduct of requesting a minor to engage in illegal sexual
acts.” Ex parte Lo, 424 S.W.3d at 16–17 (emphasis added); see also Mahmoud v.
10
State, No. 09-17-00483-CR, 2019 WL 1461067, at *2 (Tex. App.—Beaumont Apr.
3, 2019, pet. ref’d) (mem. op., not designated for publication) (“[S]ection 33.021(c)
is a conduct-based statute and does not criminalize protected speech . . . .”);
Delacruz v. State, No. 07-15-00230-CR, 2017 WL 2822513, at *3–4 (Tex. App.—
Amarillo June 29, 2017, no pet.) (mem. op., not designated for publication); Ex parte
Moy, 523 S.W.3d at 835–36; Salgado v. State, 492 S.W.3d 394, 396–97 (Tex.
App.—Beaumont 2016, no pet.); Alvarez v. State, No. 11-15-00201-CR, 2016 WL
859363, at *2 (Tex. App.—Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not
designated for publication); Chapman v. State, No. 11-15-00215-CR, 2016 WL
859366, at *1–2 (Tex. App.—Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not
designated for publication); State v. Paquette, 487 S.W.3d 286, 288–89 (Tex.
App.—Beaumont 2016, no pet.); Ex parte Fisher, 481 S.W.3d 414, 417–19 (Tex.
App.—Amarillo 2015, pet. ref’d); Ex parte Victorick, No. 09-13-00551-CR, 2014
WL 2152129, at *2–4 (Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op.,
not designated for publication); Ex parte Zavala, 421 S.W.3d 227, 231–32 (Tex.
App.—San Antonio 2013, pet. ref’d). And the court has explained that section
33.021(c) is a solicitation statute and such statutes have been routinely upheld
because an offer to engage in an illegal transaction such as the sexual assault of a
minor is categorically excluded from First Amendment protection. Ex parte Lo, 424
S.W.3d at 16–17; see also Ex parte Moy, 523 S.W.3d at 835–36.
11
We have also held that section 33.021(c) regulates only conduct and
unprotected speech; it does not punish speech based on its content alone. See Ex
parte Wheeler, 478 S.W.3d at 93–94 (gravamen of offense of solicitation is conduct
of soliciting sexual conduct from minors); Maloney v. State, 294 S.W.3d 613, 625–
29 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding section 33.021(c) is
conduct-based, not content-based); see also Ex parte Spies, No. 01-14-00925-CR,
2016 WL 1449343, at *2–4 (Tex. App.—Houston [1st Dist.] Apr. 12, 2016, no pet.)
(mem. op., not designated for publication); Ex parte Moy, 523 S.W.3d at 835–36.
And appellant concedes as much in his brief. We therefore conclude that because
Texas Penal Code section 33.021(c) does not constitute a content-based regulation,
we must presume Texas Penal Code section 33.021(c)’s validity and, as a result,
appellant bears the burden of proving the unconstitutionality of the statute. See Ex
parte Wheeler, 478 S.W.3d at 93–94; see also Ex parte Moy, 523 S.W.3d at 835–36;
Maloney, 294 S.W.3d at 626. Within this framework we address appellant’s
remaining arguments. See, e.g., Ex parte Victorick, 2014 WL 2152129, at *4.
We overrule appellant’s second issue.
C. Overbreadth
In his first issue and a portion of his fifth issue, appellant argues that the trial
court erred in denying him habeas relief because Texas Penal Code section 33.021(c)
12
violates the First Amendment to the United States Constitution as it is
“unconstitutionally overbroad.” See U.S. CONST. amend. I.
A statute is facially invalid under the First Amendment’s overbreadth doctrine
if it prohibits a “substantial” amount of protected speech “judged in relation to the
statute’s plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18 (quoting Virginia
v. Hicks, 539 U.S. 113, 118–19 (2003)); see also Broadrick, 413 U.S. at 615; Ex
parte Wheeler, 478 S.W.3d at 94. “Thus, the overbreadth doctrine prohibits the
government from ‘banning unprotected speech if a substantial amount of protected
speech is prohibited or chilled in the process.’” Wagner v. State, 539 S.W.3d 298,
310 (Tex. Crim. App. 2018) (quoting Ashcroft v. Free Speech Coalition, 535 U.S.
234, 255 (2002)); Ex parte Sauder, 564 S.W.3d 203, 212–13 (Tex. App.—Houston
[1st Dist.] 2018, pet. ref’d). An overbreadth claimant bears the burden of
demonstrating from the text of the statute and from actual fact that substantial
overbreadth exists. Hicks, 539 U.S. at 122. This burden is a heavy one: the
overbreadth doctrine is “strong medicine” to be employed sparingly and only as a
last resort. Ex parte Sauder, 564 S.W.3d at 213 (internal quotations omitted); Ex
parte Moy, 523 S.W.3d at 836. A statute will not be invalidated for overbreadth just
because it is possible to imagine some unconstitutional application. Ex parte Sauder,
564 S.W.3d at 213; Ex parte Wheeler, 478 S.W.3d at 94.
13
In his amended application for a writ of habeas corpus, appellant asserted that
section 33.021(c) is overbroad under the First Amendment because it “forbids a
substantial amount of speech that is protected under the First Amendment.” But we
and our sister appellate courts have rejected appellant’s overbreadth argument and
have held that Texas Penal Code section 33.021(c) is not unconstitutionally
overbroad. See Ex parte Wheeler, 478 S.W.3d at 94–95; Maloney, 294 S.W.3d at
625–28; see also Mahmoud, 2019 WL 1461067, at *1–4; Sturdivant v. State, No.
11-16-00172-CR, 2018 WL 3061402, at *1–2 (Tex. App.—Eastland June 21, 2018,
pet. ref’d) (mem. op., not designated for publication); Swenson v. State, No.
09-16-00142-CR, 2017 WL 6062128, at *1 (Tex. App.—Beaumont Dec. 6, 2017,
no pet.) (mem. op., not designated for publication); Delacruz, 2017 WL 2822513, at
*1, *3–4; Ex parte Rodriguez-Gutierrez, No. 04-16-00805-CR, 2017 WL 2791317,
at *1, *3 (Tex. App.—San Antonio June 28, 2017, no pet.) (mem. op., not designated
for publication); Ex parte Moy, 523 S.W.3d at 836–38 (rejecting same overbreadth
argument made by appellant in this case); Ganung v. State, 502 S.W.3d 825, 826–
28 (Tex. App.—Beaumont 2016, no pet.); Parker v. State, No. 03-15-00755-CR,
2016 WL 3974612, at *1–2 (Tex. App.—Austin July 19, 2016, pet. ref’d) (mem.
op., not designated for publication); Ex parte Ingram, No. 04-15-00459-CR, 2016
WL 1690493, at *4–5 (Tex. App.—San Antonio Apr. 27, 2016) (mem. op., not
designated for publication), aff’d, 533 S.W.3d 887 (Tex. Crim. App. 2017); Salgado,
14
492 S.W.3d at 395–97; Leax v. State, Nos. 09-14-00452-CR, 09-14-00453-CR, 2016
WL 1468042, at *1–2 (Tex. App.—Beaumont Apr. 13, 2016) (mem. op., not
designated for publication), aff’d, 541 S.W.3d 126 (Tex. Crim. App. 2017); Elzarka
v. State, No. 09-15-00078-CR, 2016 WL 1468173, at *1–3 (Tex. App.—Beaumont
Apr. 13, 2016, no pet.) (mem. op., not designated for publication); Mower v. State,
No. 03-14-00094-CR, 2016 WL 1426517, at *2–4 (Tex. App.—Austin Apr. 7, 2016,
no pet.) (mem. op., not designated for publication); Ex parte Goetz, No.
09-15-00409-CR, 2016 WL 1267867, at *1–2 (Tex. App.—Beaumont Mar. 30,
2016, pet. dism’d) (mem. op., not designated for publication); Ex parte Mahmoud,
No. 09-15-00424-CR, 2016 WL 1267882, at *1–2 (Tex. App.—Beaumont Mar. 30,
2016, pet. ref’d) (mem. op., not designated for publication); Alvarez, 2016 WL
859363, at *1, *3; Chapman, 2016 WL 859366, at *1, *3; Radford v. State, No.
11-15-00108-CR, 2016 WL 859478, at *1, *3 (Tex. App.—Eastland Mar. 3, 2016,
pet. ref’d) (mem. op., not designated for publication); Paquette, 487 S.W.3d at 288–
91; Ex parte Fisher, 481 S.W.3d at 416, 419–20; Ex parte Victorick, 2014 WL
2152129, at *1–6 (rejecting appellant’s exact overbreadth argument).
Relying on our previous analysis and that of our sister appellate courts, we
hold that section 33.021(c) is not unconstitutionally overbroad and the trial court did
not err in denying appellant habeas relief on this basis.
15
We overrule appellant’s first issue and the aforementioned portion of his fifth
issue.
D. Vagueness
In another portion of his fifth issue, appellant argues that the trial court erred
in denying him habeas relief because Texas Penal Code section 33.021(c) violates
the Fifth and Fourteenth Amendments to the United States Constitution as it is
“unconstitutionally vague.” See U.S. CONST. amends. V, XIV.
Under the void-for-vagueness doctrine, a statute will be invalidated if it fails
to give a person of ordinary intelligence a reasonable chance to know what conduct
is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006);
Ex parte Moy, 523 S.W.3d at 838; Ex parte Wheeler, 478 S.W.3d at 96. A statute is
not unconstitutionally vague just because the words or terms employed in the statute
are not defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App.
1988); Ex parte Moy, 523 S.W.3d at 838; Ex parte Wheeler, 478 S.W.3d at 96. When
a statute uses words that it does not otherwise define, we will give the words their
plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999);
Ex parte Moy, 523 S.W.3d at 838; Ex parte Wheeler, 478 S.W.3d at 96.
In his amended application for a writ of habeas corpus, appellant asserted that
section 33.021(c) is unconstitutionally vague because it “forbids ‘solicitation’ that is
not intended to result in a meeting” and “[m]en of common intelligence must
16
necessarily guess at its meaning and differ as to its application.”6 Again, we and our
sister appellate courts have rejected appellant’s vagueness argument and have held
that Texas Penal Code section 33.021(c) is not unconstitutionally vague. See Ex
parte Wheeler, 478 S.W.3d at 96; Maloney, 294 S.W.3d at 625, 628–29; see also
Sturdivant, 2018 WL 3061402, at *1, *2; Swenson, 2017 WL 6062128, at *1; Ex
parte Rodriguez-Gutierrez, 2017 WL 2791317, at *1, *3; Ex parte Moy, 523 S.W.3d
at 838–39 (rejecting same vagueness argument made by appellant in this case);
Ganung, 502 S.W.3d at 826–28; Parker, 2016 WL 3974612, at *1–2; Ex parte
Ingram, 2016 WL 1690493, at *4, *6–7; Salgado, 492 S.W.3d at 395–97; Leax,
2016 WL 1468042, at *1–2; Elzarka, 2016 WL 1468173, at *1–3; Mower, 2016 WL
1426517, at *2, *4–5; Ex parte Goetz, 2016 WL 1267867, at *1–2; Ex parte
Mahmoud, 2016 WL 1267882, at *1–2; Alvarez, 2016 WL 859363, at *1, *3;
Chapman, 2016 WL 859366, at *1, *3; Radford, 2016 WL 859478, at *1, *3;
Paquette, 487 S.W.3d at 288–90; Ex parte Fisher, 481 S.W.3d at 416, 420–21; Ex
6
To the extent that appellant, on appeal, attempts to raise any additional arguments
related to the purported vagueness of Texas Penal Code section 33.021(c), we hold
that they are not preserved for our review because appellant did not raise them in
his amended application for a writ of habeas corpus. See TEX. R. APP. P. 33.1(a);
Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.—Houston [1st Dist.] 2017, no
pet.); Ex parte Bui, 983 S.W.2d 73, 76 (Tex. App.—Houston [1st Dist.] 1998, pet.
ref’d); see also Ex parte Moy, 523 S.W.3d 830, 834, 838 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d) (appellant did not preserve certain arguments related
to purported vagueness of Texas Penal Code section 33.021(c)).
17
parte Victorick, 2014 WL 2152129, at *1–6 (rejecting appellant’s exact vagueness
argument); Ex parte Zavala, 421 S.W.3d at 231–32.
Relying on our previous analysis and that of our sister appellate courts, we
hold that section 33.021(c) is not unconstitutionally vague and the trial court did not
err in denying appellant habeas relief on this basis.
We overrule this portion of appellant’s fifth issue.
E. Dormant Commerce Clause
In his eighth issue, appellant argues that the trial court erred in denying him
habeas relief because Texas Penal Code section 33.021(c) violates the Dormant
Commerce Clause of the United States Constitution. See U.S. CONST. art. I, § 8, cl.
3.
The Constitution of the United States empowers Congress to regulate
commerce among the states. Id. Along with the express grant of authority to
Congress, the United States Supreme Court has interpreted the Commerce Clause as
an implicit restriction on the States’ power to regulate interstate commerce even
without any conflicting federal regulation. United Haulers Ass’n v. Oneida–
Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). A state statute
violates this implicit restriction, known as the Dormant Commerce Clause,7 if it
7
See Ex parte Bradshaw, 501 S.W.3d 665, 678 n.11 (Tex. App.—Dallas 2016, pet.
ref’d) (explaining “[t]he clause is ‘dormant’ because it is nowhere to be found in the
express language of Article I, [s]ection 8 of the [United States] Constitution”).
18
discriminates on its face against interstate commerce by providing differential
treatment of in-state and out-of-state economic interests that benefits the former and
burdens the latter. Id.; see also Comptroller of Treasury of Md. v. Wynne, 135 S. Ct.
1787, 1794 (2015) (“Under our precedents, the [D]ormant Commerce Clause
precludes States from discriminat[ing] between transactions on the basis of some
interstate element.” (second alteration in original) (internal quotations omitted)).
The United States Supreme Court has established a balancing test to determine
whether a burden on interstate commerce imposed by a statute is excessive in
relation to putative local benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970); Ex parte Wheeler, 478 S.W.3d at 97. When the statute regulates
evenhandedly to effectuate a legitimate local public interest, and its effects on
interstate commerce are only incidental, it will be upheld unless the burden imposed
on this commerce is excessive in relation to the putative local benefits. Huron
Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443 (1960); Ex parte Wheeler,
478 S.W.3d at 97. If a legitimate local purpose is found, then the question becomes
one of degree. Ex parte Wheeler, 478 S.W.3d at 97. And the extent of the burden
that will be tolerated depends on the nature of the local interest involved and whether
the purpose could be promoted as well with a lesser impact on interstate activities.
Pike, 397 U.S. at 142; Ex parte Wheeler, 478 S.W.3d at 97.
19
In his amended application for a writ of habeas corpus, appellant asserted that
section 33.021(c) violates the Dormant Commerce Clause because “it unduly
burdens interstate commerce by attempting to place regulations on the entirety of the
Internet.” We and our sister appellate courts have rejected appellant’s argument and
have held that section 33.021 does not violate the Dormant Commerce Clause. See
Ex parte Wheeler, 478 S.W.3d at 96–97; see also Sturdivant, 2018 WL 3061402, at
*1–2; Swenson, 2017 WL 6062128, at *1; Delacruz, 2017 WL 2822513, at *1, *5;
Ex parte Rodriguez-Gutierrez, 2017 WL 2791317, at *1, *4; Ex parte Moy, 523
S.W.3d at 839–40 (rejecting same dormant-commerce-clause argument made by
appellant in this case); Parker, 2016 WL 3974612, at *2–3; Ex parte Ingram, 2016
WL 1690493, at *4, *7; Leax, 2016 WL 1468042, at *1–2; Ex parte Goetz, 2016
WL 1267867, at *1–2; Ex parte Mahmoud, 2016 WL 1267882, at *1–2; Alvarez,
2016 WL 859363, at *1, *4; Chapman, 2016 WL 859366, at *1, *4; Radford, 2016
WL 859478, at *1, *4; Paquette, 487 S.W.3d at 288, 291; Ex parte Fisher, 481
S.W.3d at 416, 421–22.
Relying on our previous analysis and that of our sister appellate courts, we
hold that Texas Penal Code section 33.021(c) does not violate the Dormant
Commerce Clause of the United States Constitution and the trial court did not err in
denying appellant habeas relief on this basis.
We overrule appellant’s eighth issue.
20
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
21
Ex Parte Joshua Jermaine Nelson
Combined Opinion