Affirm and Opinion Filed June 13, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00029-CR
EX PARTE RAGHAVENDRA CHANAGOND
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-85405-2021
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Pedersen, III
Raghavendra Chanagond appeals the trial court’s January 19, 2023 “Order on
Defendant’s Application for Writ of Habeas Corpus Challenging section 33.021(c)
of the Texas Penal Code as Unconstitutional Under the First Amendment to the
United States Constitution” (the Order), which denied his pretrial petition for writ of
habeas corpus. Appellant is accused of violating section 33.021(c) of the Texas
Penal Code, which prohibits and punishes an actor who uses electronic
communications to solicit a minor to meet another person, including the actor, with
the intent that the minor will engage in certain sexual behavior. TEX. PENAL CODE
ANN. § 33.021(c). In two issues, appellant contends that this statute is an
unconstitutionally invalid content-based restriction on speech because: (1) it is
overbroad, and (2) it is not the least restrictive means of accomplishing any
legitimate interest and therefore fails to satisfy a strict scrutiny review. We affirm
the trial court’s Order denying relief.
Background
The indictment in this case charges that appellant did:
then and there, with the intent that Lee McMillian, representing himself
to be Ava, hereafter styled the complainant, whom [appellant] believed
to be a minor, would engage in sexual intercourse, and deviate sexual
intercourse, with [appellant], knowingly solicit over the Internet, and
by text message, and through a commercial online service the
complainant to meet [appellant].
See PENAL § 33.021(c). Appellant filed his “Pretrial Application for Writ of Habeas
Corpus Challenging section 33.021(c) of the Texas Penal Code as Unconstitutional
Under the First Amendment to the United States Constitution” (the Application),
arguing that section 33.021(c) is facially invalid.
The trial court held a hearing on the Application and, shortly thereafter, signed
the Order denying relief. This appeal followed.
Discussion
A defendant may seek a pretrial writ of habeas corpus to challenge the facial
constitutionality of a statute, i.e., to attack the validity of the statute itself. See Peraza
v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Whether a statute is facially
constitutional is a question of law that we review de novo. Salinas v. State, 464
S.W.3d 363, 366 (Tex. Crim. App. 2015). When an appellant challenges the
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constitutionality of a statute, we usually begin our review with the presumption that
the statute is valid and that the legislature has not acted unreasonably or arbitrarily.
Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013). In that usual situation,
the burden rests upon the appellant challenging the statute to establish its
unconstitutionality. Id. at 15. However, when the government seeks to restrict and
punish speech based upon its content, the usual presumption of constitutionality is
reversed. Id. “Content-based regulations (those laws that distinguish favored from
disfavored speech based on the ideas expressed) are presumptively invalid, and the
government bears the burden to rebut that presumption.” Id. Assigning the burden
in this case, therefore, requires that we determine whether section 33.021(c) is in fact
a content-based regulation on speech.
Nature of the Statute
Appellant argues that section 33.021(c) is a content-based restriction on
speech that “restricts communications (text messages, electronic messages) based on
their content (whether they ‘solicit’).”1 We do not write on a blank slate on this issue.
The court of criminal appeals has stated that section 33.021(c) does not restrict
speech, rather “it is the conduct of requesting a minor to engage in illegal sexual acts
that is the gravamen of the offense.” Lo, 424 S.W.3d at 16–17 (emphasis in original).
1
Appellant argues further that this restricted speech does not fall within any of the categories the
United States Supreme Court has historically recognized as protected. Because we disagree with his premise
that this statute restricts speech, we need not address this argument.
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As the court reasoned, section 33.021(c) is a solicitation statute, the likes of which
have been routinely upheld, because offers to engage in illegal transactions—such
as sexual assault of a minor—are categorically excluded from First Amendment
protection. Id. We have previously followed this ruling, concluding that section
33.021(c) addresses not protected speech, but conduct and, where communications
are involved, unprotected speech. Ex parte Griffin, No. 05-22-00718-CR, 2022 WL
5113138, at *2 (Tex. App.—Dallas Oct. 5, 2022, pet. ref’d). And we have agreed
with the court of criminal appeals that “[t]his sort of conduct enjoys little
constitutional protection, and statutes forbidding such conduct have routinely been
upheld against First Amendment challenges.” Id. (citing Lo, 424 S.W.3d at 16.).
Because we conclude that section 33.021(c) regulates only conduct and unprotected
speech, we presume its validity, and we place the burden of demonstrating
unconstitutionality on appellant. See Lo, 424 S.W.3d at 15.
Overbreadth
In appellant’s first issue, he contends that section 33.021(c) is overbroad
because it “forbids speech that is not an offer to engage in criminal activity.” Again,
we have concluded that conduct is at issue in this statute, not protected speech. But
“[a] law may be invalidated as overbroad if ‘a substantial number of its applications
are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6 (2008)).
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Section 33.021’s plainly legitimate sweep involves protecting the physical and
psychological well-being of minors, which is unquestionably a compelling
government interest. New York v. Ferber, 458 U.S. 747, 756–57 (1982) (“The
prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance.”).
A party challenging a statute as overbroad must demonstrate from its text and
from actual fact that a substantial number of instances exist in which the statute
cannot be applied constitutionally. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim.
App. 2016.2 Appellant’s challenge argues that the statute forbids solicitations that
do not include offers to engage in criminal activity. Appellant imagines two
circumstances in which an adult could solicit lawful sexual conduct from a minor:
1. Sue, a 20-year-old woman texts her 16-year-old sister Ann, “Your boyfriend
[who is also 16] is dreamy. Why don’t you get together and … do it.”
2. Twenty-year-old Bob’s and 16-year-old Steve’s families have been close for
decades. The two men have known each other since childhood. They have
fallen in love, and their families approve of their relationship but, respecting
the law, they refrain from consummating the relationship. A week before
Steve’s birthday, Bob emails him, “I can’t wait to see you next Saturday and
finally make love to you.”
2
Ordinarily, our overbreadth analysis begins with the text of the statute. See United States v. Williams,
553 U.S. 285, 293 (2008) (“The first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the statute covers.”).
On its face, this statute prohibits and punishes an actor who uses electronic communications to solicit a
minor, to meet another person, including the actor, with the intent that the minor will engage in certain
sexual behavior. Lo, 424 S.W.3d at 16. In this case, appellant does not challenge the meaning or reach of
any particular term within the statute or its purpose to protect minors from sexual predators.
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The first example posits a situation in which an adult might encourage a minor
to meet with someone with whom the minor could lawfully consent to sex, i.e.,
someone within three years of age of the minor. See PENAL § 33.021(e) (“It is a
defense to prosecution under this section that at the time conduct described by
Subsection (c) was committed: . . . the actor was not more than three years older than
the minor and the minor consented to the conduct.”). We can—for purposes of this
opinion only—consider that such a scenario could fall literally within the reach of
section 33.021(c). However, such a “solicitation” would necessarily be directed
toward the minor by an adult who knew the minor well enough to know both her age
and the age of her boyfriend; indeed, appellant’s scenario involves a communication
between sisters. This type of solicitation could not trigger law enforcement
involvement as appellant’s solicitation did: he allegedly contacted Detective
McMillan believing the detective was a young girl. Appellant’s first hypothetical
solicitation would be addressed to a specific, known person. Given the remote
possibility that such a communication would be brought to the attention of law
enforcement, we are confident that the overbreadth problem would be cured through
case-specific analysis of the fact situation, and the statute’s sanctions would not be
applied. See Ferber, 458 U.S. at 773–74.
Appellant’s second example envisions an adult asking a minor to meet him
for sex at a later date, after the minor could lawfully consent to sex with the adult.
This scenario is concerning in a way the first scenario was not, because—as the State
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points out—section 33.021(c) is violated when the solicitation is made. “The intent
expressed in the bill analyses, the committee hearings, and the floor debate was that
the crime of solicitation of a minor on the internet is complete at the time of the
internet solicitation, rather than at some later time if and when the actor actually
meets the child.” Lo, 424 S.W.3d at 23. Accordingly, appellant’s second
hypothetical does not describe conduct that is lawful. While his precise scenario of
the minor’s being days away from his seventeenth birthday may mean that the
likelihood of prosecution is remote, we do not consider it an example of section
33.021(c)’s improperly sweeping up lawful conduct within its plainly legitimate
reach.
Regardless, a statute will not be susceptible to an overbreadth challenge
merely because it is possible to imagine some unconstitutional applications. United
States v. Williams, 553 U.S. 285, 303 (2008). We consider section 33.021(c) an
example of a state statute “whose legitimate reach dwarfs its arguably impermissible
applications.” See Ferber, 458 U.S. at 773. “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, 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.” Ex parte Ingram, 533 S.W.3d 887, 900 (Tex.
Crim. App. 2017).
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We conclude appellant has not established that section 33.021(c) is
impermissibly broad when judged in relation to its plainly legitimate sweep. We
overrule appellant’s first issue.
Strict Scrutiny
In his second issue, appellant contends that section 33.021(c) fails review
under the standard of strict scrutiny. This issue contemplates application of certain
first principles of constitutional law. The First Amendment prohibits the enactment
of laws “abridging the freedom of speech.” U.S. CONST. amend. I. Thus, a
government may not restrict expression because of its message, ideas, subject matter,
or content. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). When a law
does regulate protected speech, and that regulation is challenged, we review the
regulation under varying standards of constitutional scrutiny; if the restriction is
imposed on the content of protected speech, it is invalid unless the government can
demonstrate that it passes strict scrutiny. Brown v. Entm’t Merchants Ass’n, 564 U.S.
786, 799 (2011). To survive a strict scrutiny review, the regulation must be justified
by a compelling government interest and be narrowly drawn to serve that interest.
Id.
Appellant contends specifically that section 33.021(c) is not narrowly drawn
to serve a compelling government interest. But we do not reach the question of how
narrowly drawn the statute is because, as we concluded above, section 33.021(c)
does not impose any regulation on protected content-based speech. Instead, it is a
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regulation on conduct and unprotected speech that is categorically excluded from
First Amendment protection. Lo, 424 S.W.3d at 16–17. Accordingly, the concept of
strict scrutiny is simply not relevant to our review.
We overrule appellant’s second issue.
Conclusion
We affirm the trial court’s January 19, 2023 Order denying appellant’s
Application for a writ of habeas corpus.
/Bill Pedersen, III//
230029f.u05 BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE RAGHAVENDRA On Appeal from the 199th Judicial
CHANAGOND District Court, Collin County, Texas
Trial Court Cause No. 199-85405-
No. 05-23-00029-CR 2021.
Opinion delivered by Justice
Pedersen, III. Justices Goldstein and
Smith participating.
Based on the Court’s opinion of this date, the January 19, 2023 Order of the
trial court is AFFIRMED.
Judgment entered this 13th day of June, 2023.
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