ACCEPTED
01-14-00868-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/5/2015 4:19:04 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00868-CR
FILED IN
1st COURT OF APPEALS
ln the HOUSTON, TEXAS
Court of Appeals for the First District of Texas
2/5/2015 4:19:04 PM
At Houston CHRISTOPHER A. PRINE
Clerk
Cause No. 2014V-0074
ln the 155th District Court
Of Austin County, Texas
EX PARTE STUART WHEELER
APPELLEE'S BRIEF
Brandy N. Robinson
One East Main Street
Bellville, Texas 77418
(e7e) 865-5e33
Texas Bar No. 24051688
ORAL ARGUMENT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Appellee requests oral argument pursuant to Texas Rule of Appellate
Procedure 39.7.
2
IDENTITY OF PARTIES AND COUNSEL
Appellee: State of Texas
Trial and Appellate Counsel for the State:
Brandy N. Robinson
Assistant Criminal District Attorney
One East Main Street, 3'd Floor
Bellville, Texas 77418
(e7e) 865-5933
Trial and Appe!late Counsel for Applicant:
Mark W. Bennett
917 Franklin St., 4th FIoor
Houston, TX77002
Phil Baker
P.O. Box 628
La Grange, TX 78945
(e7e) e68-3783
Trial Judge: The Honorable Jeff Steinhauser
J
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT 2
IDENTITY OF PARTIES AND COUNSEL 3
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 6
STATEMENT OF THE CASE 9
ISSUE PRESENTED 10
The trial court properly denied habeas relief because the
section of Texas Penal Code S 33.021 by which Applicant is charged is
constitutional.
STATEMENT OF THE FACTS 11
SUMMARY OF THE ARGUMENT 12
RESPONSE TO POINT OF ERROR ONE ......14
The remaining subsections of Texas Penal Code S 33.021
should be upheld under a rational basis standard of review, as they restrict
unprotected criminal conduct rather than constitutionally protected speech.
Moreover, the statute is narrowly tailored to serve a compelling
governmental interest.
A. Strict Scrutiny Applies to Laws Restricting Speech,
Not Conduct
B. Subsection (b) Regulated Speech, but Subsection (c) Regulates
Conduct
C. Subsection (c) Restricts Criminal Solicitation
D. Subsection (d) Does Not Change the Standard of Review
Alternatively, Any Unconstitutional Portions of Subsection (d)
Should Be Struck
E. Section (C) Survives Rational Basis Review
4
F. Texas Penal Code S 33.021 ls Not Overly Broad
1. The Statute is Narrowly Tailored
2. The Statute Serues a Compelling Governmental lnterest
RESPONSE TO POINT OF ERROR TWO . ... .35
The remainder of Texas Penal Code S 33.021 survives any
vagueness challenge, as the plain meaning of the word "solicitation" in the
statute is facially clear.
A. Applicant Cannot Raise a New Vagueness Ground
on Appea!
B. Subsections (c) and (d) Are Not lmpermissibly Vague
RESPONSE TO POINT OF ERROR THREE... 40
The Dormant Commerce Clause does not apply to $ 33.021.
Alternatively, the statute survives the Dormant Commerce Clause
balancing test, as any potential burden on commerce does not outweigh
the legitimate local interest in preventing solicitation of minors for illegal
sexual acts.
A. The Dormant Commerce Clause Does Not Apply
B. Subsection (c) Does Not Restrict Commerce
C. Texas Penal Code S 33.021 Passes the Pike Test
PRAYER .44
CERTIFICATES OF COMPLIANCE AND SERVICE 45
5
Cases
Aaron y. Sfafe, 161 Tex. Crim. 156 (Tex. Crim. App. 1954)---- ----38
Am. Libran'es Assh v. Pataki,969 F. Supp. 160 (S.D.N.Y. 1gg7) -----------40
Broadrick v. Oklahoma,413 U.S. 601 (1973) 15, 29
Bynum y. Sfafe, 767 S.W.2d 769 (Tex. Crim. App. 1989) ----------28
Cameron v. Johnson, 390 U.S. 611 (1968)- ------36
Cardenas v. Sfafe, 640 S.W.2d 291 (Tex. Crim. App. 1982)---- ---24
Cerda v. State,750 S.W.2d 925 (Tex. App.-Corpus Christi 1988) --------38
Chaplinsky v.Sfafe of New Hampshire, 315 U.S. 568 (1942) -----20
Colten v. Kentucky, 407 U.S. 104(1972) ---------36
Connally v. Gen. Const. Co.,269 U.S. 385 (1926) --------36
Duncantell v. State,230 S.W.3d 835 (Tex. App.-Houston [14th Dist.]
2007)---- ----26
Ely v. Sfafe, 582 S.W.2d 416 (Tex. Crim. App. 1979) 12, 14,26
2013)---- -----passim
Ex Parte Lo,424 S.W.3d 10 (Tex. Crim. App.
Ex Parte Thompson,442 S.W.3d 325 (Tex. Crim. App. 2014) ----21
Ex Parte Zavala,421 S.W.3d227 (Tex. App.-San Antonio2013, pet.
ref d. )-- -----Passim
Frieling v. State,67 S.W.3d 462, (Tex. App.-Austin 2002) --20,34
Grayned v. City of Rockford, 408 U.S. 104 (1972) 36
ln re Shaw,204 S.W.3d 9 (Tex. App.-Texarkana 2006, pet. refd.) ""--27
Maloney v. Sfafe,294 S.W.3d 613 (Tex. App.--Houston [1't Dist.] 2009, pet.
refd. )--"-- ---passim
1987)
Mattias v. Sfafe, 731 S.W.2d 936 (Tex. Crim. App. ----------38
McBumey v. Young, 133 S. Ct. 1709 (2013)--------- -------43
6
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789 (1984) 26
New York v. Ferber,4s8 U.S. 747 (1982) ----20, 27 , 33, 34
Oregon Waste Sys., lnc. v. Dep't of Envtl. Quality of State of Or., 511 U.S.
e3 (1ee4) 41
People v. Smith, 347 lll. App. 3d 446 (lll. App. Ct. 2004) -------------27, 35
Pike v. Bruce Church, |nc.,397 U.S. 137 (1970)----- ------41
Rath v. Sfafe, 33 S.W. 142 (Tex. Crim. App. 1895) 38
Rodiguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) 14
Rothstein v. State,267 S.W.3d 366 (Tex. App.-Houston [14th Dist.] 2008,
pet. refd.)---"-- ----36
Sanchez v. Sfafe, 995 S.W.2d 677 (Tex. Crim. App. 1999) 20
Sanfrkos v. State,836 S.W.2d 631 (Tex. Crim. App. 1992) ---15,27
Scoff v. Sfafe, 36 S.W.3d240 (Tex. App.-Houston [1"t Dist.] 2001, pet.
refd) 31
Sfafe v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013)--- -----27
Tarlton v. Sfafe, 93 S.W.3d 168 (Tex. App.-Houston [14tn Dist.] 2002, pet.
refd 26
Tisdale v. Sfafe, 640 S.W.2d 409 (Tex. App.-San Antonio 1982, pet.
refd 31
United Sfafes v. Ranso n, 942 F .2d 775 (10th Cir. 1991 31
United Sfafes v. Salerno,481 U.S. 739 (1987) --15
United Sfafes v. Williams, 553 U.S. 285 (2008) 19,28
Valdez v. Valdez, 930 S.W.2d 725 (Tex.App.-Houston [1st Dist.] 1996, no
pet.) --------- 36
Vill. of Hoffman Esfafes v. Flipside, Hoffman Estates, \nc.,455 U.S. 489
(1e82 28
7
wren v. Texas Employment com'n,915 s.w.2d 50G (Tex. App.--Houston
[14tn Dist.] 1995, no pet.) -----36
Statutes
(Vernon2012)-------- ---38
Tex. Pen. Code Ann. S 15.03 (c)
Tex. Pen. Code Ann. S 21.02 (Vernon) ------------21
Tex. Pen. Code Ann. S 21.11 (Vernon)---- -----21
Tex. Pen. Code Ann. S 22.011 (Vernon)----- -------------21
Tex. Pen. Code Ann. 522.021 (Vernon) ----------21
Tex. Pen. Code Ann. S 33.021(aX1)(A) (Vernon2012) 30
Tex. Pen. Code Ann. S 33.021(b) (Vernon2012)-------- --16
Tex. Pen. Code Ann. S 33.021(c) (Vernon2012)-------- -----passim
Tex. Pen. Code Ann. S 33.021(d) (Vernon2012)-------- --------22,33
Tex. Pen. Code Ann. S 2012)
43.02 (Vernon ----23
Texas Penal Code S 33.021 (Vernon 2012)---- -----passim
Texas Penal Code S 43.02(a) (Vernon 2012)--------- ------23
Rules
Tex. R. App. P. 9.4(i)(1) 45
Tex. R.App. P. 33.1 36
Tex. R. App. P. 33.1 (a) 36
8
STATEMENT OF THE CA$E
The State indicted Stuart Wheeler, hereinafter referred to as
"Applicant," under subsection (c) of Texas Penal Code S 33.021 for Online
Solicitation of a Minor in Cause No. 2013R-0031. (CR 14). The defense
filed its writ of habeas corpus. (CR 3). The trial court signed an order
denying habeas relief. (CR 57). Applicant then filed notice of appeal. (CR
s6).
9
ISSUE PRESENTED
The trial court properly denied habeas relief because the section of
Texas Penal Code S 33.021 by which Applicant is charged is constitutional.
10
Applicant challenges the pure facia! constitutionality of the statute, not
the constitutionality as applied. Therefore, a statement of facts is
inapplicable.
ll
SUMMARY OF THE ARGUMENT
The Texas Court of Criminal Appeals, in Ex Parte Lo,424 S.W.3d 10
(Tex. Crim. App. 2013), examined Texas' Online Solicitation of a Minor
statute, Texas Penal Code S 33.021. The Court held that subsection (b) of
S 33.021 was unconstitutionally overbroad. Ex Parte Lo, at 14. However,
the Court expressly stated that the remaining subsections were
constitutional. Ex Parte Lo, at 16-17. Under the rational basis standard of
review, Applicant has the burden to show the present statute has no
reasonable construction which would render it constitutional. Ely v. Sfafe,
582 S.W.2d 416,419 (Tex. Crim. App. 1979). As the Texas Court of
Criminal Appeals has already found a reasonable construction which would
render the statute constitutional, the statute must be upheld.
Further, Texas courts have specifically rejected Applicant's
arguments of overbreadth and vagueness as to the remainder of $ 33.021.
Ex parte Lo,424 S.W.3d 10; Maloneyv. Sfafe,294 S.W.3d 613,626-629
(Tex. App.-Houston [1st Dist.] 2009, pet. refd.); ex Parte Zavala,421
S.W.3d 227,231-232 (Tex. App.-San Antonio2013, pet. ref'd.). These
courts consistently held the remainder of the statute serves the compelling
interest of protecting children while being narrowly tailored to target only
predators using the internet to solicit children for illegal sex.
t2
Finally, Applicant has offered no legal basis for applying the Dormant
Commerce Clause to the present statute. However, if the Commerce
Clause applies, the statute should be upheld because the burden the
statute places on commerce, if any, does not outweigh the legitimate local
interest in protecting children from sexual solicitation.
l3
The remaining subsections of Texas Penal Code S 33.021 should be
upheld under a rational basis standard of review, as they restrict
unprotected criminal conduct rather than constitutionally protected speech.
Moreover, the statute is narrowly tailored to serve a compelling
governmental interest.
Standard of Review
A court reviewing the constitutionality of a statute must first determine
what standard of review applies. The standard of review dictates who
holds the burden of proof and how high that burden rests. The party
challenging the statut*here, Applicant-normally carries the burden to
establish unconstitutionality because statutes are typically presumed valid.
Ex parte Lo, 424 S.W.3d at 14-15i Maloney, 294 S.W.3d at
626 (citing Rodriguezv. Sfafe,93 S.W.3d 60,69 (Tex. Crim. App. 2002).
Generally, if there is a reasonable construction that renders the statute
constitutional, the court must uphold it. Ely v. Sfafe, 582 S.W.2d 416, 419
(Tex. Crim. App. 1979).
Furthermore, Applicant must meet a higher burden, as he is
challenging the facial constitutionality of (c) and (d) of $ 33.021, rather than
t4
its constitutionality as applied. An applicant challenging the validity of a
statute on its face must show the statute is unconstitutional in every
application. United Sfafes v. Salerno,481 U.S. 739,745 (1987). To meet
this heavy burden, Applicant must show that no set of circumstances exist
under which the statute is valid . Santikos v. Sfafe, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992).
A. Strict Scrutiny Applies to Laws Restricting Speech,
Not Conduct
A "strict scrutiny" standard of review is inappropriate here because it
applies to statutes that regulate speech solely based on content. lf the
statutory provision regulates speech solely due to content, then the statute
will be "presumed invalid," and the State must rebut that presumption. Ex
Parte Lo, 424 S.W.3d at 15. By contrast, if the statute punishes conduct
instead of speech, the courts use a "rational basis" standard of review.
This means the court must review the statute de novo with the presumption
that the law is valid, and the sole concern is whether the statute has a
rational relationship to a legitimate state purpose. Ex Parte Lo, 424 S.W.3d
at 14-15. See Broadrick v. Oklahoma,413 U.S. 601, 615 (1973).
l5
B. Subsection (b) Regulated Speech,
but Subsection (c) Regulates Conduct
Applicant argues that subsection (c) regulates speech and must be
examined under the strict scrutiny standard; however, the Texas Court of
Criminal Appeals clearly stated subsection (c) regulates conduct instead of
speech. Ex Parte Lo, 424 S.W.3d at 15-16. Applicant tries to categorize
both the constitutional and unconstitutional subsections of $ 33.021
together and claims they both regulate constitutionally protected speech.
However, when the Court examined S 33.021in Ex Parte Lo, the Court
made an adamant distinction between subsection (b), which
unconstitutionally sought to regulate speech based solely on content, and
subsection (c), which constitutionally sought to regulate criminal conduct.
Ex Parte Lo, 424 S.W.3d at 15-16.
The plain text of the statute demonstrates the distinction between
speech and conduct. Subsection (b) prohibits communicating in a sexually
explicit manner with a minor or distributing sexually explicit material to a
minor. Tex. Pen. Code Ann. S 33.021(b) (Vernon2012). The content of
the communication, rather than the purpose for which it was done, was key.
As Subsection (b) banned communication and distribution of
communicative material based solely on its sexually explicit nature, it
t6
restricted speech based on content. Subsection (c) instead prohibited
using language to commit the criminal conduct of solicitation. Subsection
(c) prohibits a person who knowingly solicits a minor to meet another
person with the intent that the minor will engage in sexual contact, sexua!
intercourse, or deviate sexual intercourse. Tex. Pen. Code Ann. $
33.021(c) (Vernon2012). This subsection seeks to regulate the criminal
act of soliciting a minor for sex, regardless of whether the language used to
do so is sexually explicit.
The Court in lo found subsection (bFthe "sexually explicit
com mun ication" su bsection-reg u ! ated constitutiona ly protected speech
I
and did not survive strict scrutiny. Under a strict scrutiny standard, the
State must prove that the statute is necessary to serve a compelling state
interest and that the statute is narrowly drawn to use the least restrictive
means to promote that interest. Ex Parte Lo,424 S.W.3d at 19. The Court
found subsection (b) unconstitutional, stating, "The statute bars explicit
descriptions of sexual acts, but it also bars any electronic communication or
distribution of material that "relates to" sexual conduct. That bar would
encompass many modern movies, television shows, and "young adult"
books, as we!! as outright obscenity, materia! harmful to a minor, and child
pornography." Ex Parte Lo,424 S.W.3d at 17-20. The Court found that
t7
while protecting children from sexual exploitation is a competling state
interest, subsection (b)'s prohibition on communication prohibited
substantial innocent speech as well, and thus, was not narrowly tailored to
promote that interest.
C. Subsection (c) Restricts Criminal Solicitation
The Texas Court of Criminal Appeals distinguished subsection (cF
the "solicitation" subsection-from (b) by stating it properly prohibits the
conduct of soliciting a child for illegal activity. Ex Parte Lo, 424 S.W.3d at
16. Applicant essentially claims that since both subsections can be
violated by using words, they both must be "speech" for the purposes of a
First Amendment analysis. However, the Court soundly rejected that
reasoning, stating, "Thus, it is the conduct of requesting a minor to engage
in illegal sexual acts that is the gravamen of the offense." /d. The
solicitation law does not regulate the nature or type of speech a defendant
uses to communicate with a minor; rather, the law prohibits defendants
from attempting to procure a child for sex through the internet, no matter
the content of language used. Statutes seeking to regulate conduct fall
under the "rational basis" standard.
Furthermore, criminal solicitation falls into a category of speech
outside the realm of First Amendment constitutional protection. Applicant
l8
argues that the Court should bypass the strict scrutiny standard altogether
and solely apply a categorica! approach to determine constitutionality of the
statute. lf the court were to do so, the statute would still stand because
criminal solicitation has long fallen outside the hallows of constitutionally
protected speech. The Texas Court of Criminal Appeals, referring to
subsection (c) stated, "Such solicitation statutes exist in virtually all states
and have been routinely upheld as constitutional because "offers to engage
in illega! transactions [such as sexual assault of a minor] are categorically
excluded from First Amendment protection." Ex parte Lo, 424 S.W.3d at
16; citing United Sfafes v. Williams, 553 U.S. 285,297 (2008).
The United States Supreme Court has traditionally held that certain
types of speech are categorically unprotected by the First Amendment. ln
Chaplinsky v. Sfafe of New HampshtTe, the Court held, "...it is well
understood that the right of free speech is not absolute at all times and
under all circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or'fighting'
words-those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. lt has been well observed that such
t9
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality." Chaplinsky v. Sfafe of New Hampshire,315 U.S. 568, 571-572
(1942). Essentially, words that are used to incite criminal acts, such as
sol icitation, are trad itional ly un protected.
The United States Supreme Court expounded on how this might
appty to crimes against children when it reviewed an anti-pornography
statute in New York v. Ferber. The Court stated, "When a definable class of
material, such as that covered by S 263.15, bears so heavily and
pervasively on the welfare of children engaged in its production, we think
the balance of competing interests is clearly struck and that it is permissible
to consider these materials as without the protection of the First
Amendment." (Emphasis added). New Yorkv. Ferber,458 U.S. 747,763'
764 (1982). Clearly, certain types of speech, particularly expression used
to facilitate crimes against children, fall into a category unprotected by the
United States Constitution.
The Texas courts, too, have historically found certain types of speech
unprotected. Solicitation of prostitution, bribery, and extortion have all been
found to be speech without constitutional protection, as they constitute
20
criminal conduct. See Fn'eling v. Sfafe, G7 S.W.3d 462, (Tex. App.-Austin
2002, pet. ref d .); sanchez v. sfafe, gg5 s.w .2d o7T ,688 (Tex. crim. App.
1999). ln Ex Pafte Thompson,442 S.W.3d 325, 338 (Tex. Crim. App.
2014), the Texas Court of Criminal Appeals explained the basic reasoning
behind what merits constitutional protection versus what does not, stating,
"When the intent is to do something that, if accomplished, would be
unlawful and outside First Amendment protection, such as the intent to
threaten or intimidate, such an intent might help to eliminate First
Amendment concerns." Texas Penal Code S 33.021 (c) specifically
requires the defendant have "the intent that the minor will engage in sexual
contact." Tex. Pen. Code Ann. S 33.021(c) (Vernon2012). Under Texas
Iaw, it is unlawfu! for a minor to engage in sexua! conduct with an adult.
Tex. Pen. Code Ann. SS 21 .02, 21.11,22.011, 22.021 (Vernon). Therefore,
the unlawful intent required by the statute eliminates the First Amendment
protection concerns the Applicant attempts to raise.
D. Subsection (d) Does Not Change the Standard of Review
Subsection (d)'s addendums, when read in context with subsection
(c), do not change the applicable standard of review. Applicant argues that
subsection (c) does not criminalize solicitation when read in conjunction
with subsection (d). Subsection (d)(1) states that it is not a defense if a
2t
meeting did not occur, subsection (d)(2) states that it is not a defense if the
actor did not intend for a meeting to occur, and subsection (dX3) states it is
not a defense if the actor is engaging in fantasy at the time of the offense.
Tex. Pen. Code Ann. S 33.021(d) (Vernon 2012). The court in Zavala
directly rejected the claim that any of these three subsections significantly
altered subsection (c), but subsection (dX3) wi!! be discussed in greater
depth during the State's analysis on overbreadth. Regarding subsections
(dX1) and (dX2), the Zavala court found that the crime under subsection (c)
is committed and completed at the time of the actual internet solicitation;
therefore, when read in context, subsections (d)(1) and (dX2) apply to a
defendant's conduct and mental state after the offense was committed, not
at the time of the solicitation. Zavala,421 S.W.3d at 232.
By examining the legislative history, the Zavala court reasoned that
rather than negating the intent requirement of subsection (c), subsections
(dX1) and (dX2) merely prevent the defendant from using his intent and
actions after the crime as a defense. The statute explicitly states that
subsection (dX3) applies to the mental state during the commission. Tex.
Pen. Code Ann. S 33.021(d) (Vernon2012). This contrasts with (d)(1) and
(dX2). A plain reading of subsection (dX1) shows it applies to whether a
meeting actually occurred after the solicitation took place. /d As the
22
legislature chose not to apply the same at-thetime-of-the-offense language
to (dX2) that it applied to (dX3), (dX2) instead can be read along with (d)(1)
to apply to what occurs after the elements of the offense have already been
completed. Therefore, subsection (dX2) does nothing to alter or negate
subsection (c)'s intent requirement.
Subsection (c), along with subsection (d), can best be analogized to
the Iaw against solicitation for prostitution. The Iaw against prostitution,
Texas Penal Code S 43.02(a), reads, in part, that a person commits a crime
when he or she knowingly, "offers to engage, agrees to engage, or
engages in sexual conduct for a fee" or knowingly "solicits another in a
public place to engage with the person in sexual conduct for hire." Tex.
Pen. Code Ann. S 43.02 (Vernon 2012). Similarly, subsection (c) of the
online solicitation statute requires a defendant to knowingly make an offer,
or solicitation, to a minor to engage in sexual conduct. Tex. Pen. Code
Ann. S 33.021(c) (Vernon 2012). Under the prostitution statutue, the State
could either charge that a defendant offered, agreed, or solicited the illega!
sexual conduct, or the State could charge the defendant actually engaged
in the sexual conduct. Whether the State charged the defendant with
solicitation or with actually engaging in prostitution created an enormous
difference in the State's burden of proof.
23
ln Cardenas v. Sfafe, the Texas Court of Criminal Appeals discussed
this crucial distinction. The Court explained, "The information reflects that
appellant was charged with "knowingly offer and agree" to engage in sexual
conduct, to-wit: sexual contact-a type of sexual conduct. The intent that
must accompany future sexual contact need not accompany the offer or
agreement to engage in sexual conduct." Cardenas v. Sfafe,640 S.W.2d
291,292 (Tex. Crim. App. 1982). The Court elaborated, "lf appellant had
been charged with engaging in sexual contact instead of
with offering or agreeing to engage in sexual contact, Victory, supra, would
be controlling because "with intent to arouse or gratify the sexual desire of'
some person would be an accompanying mental state to the act alleged."
ln Cardenas, then, the State merely had to prove the mens rea necessary
to make the offer, and the State did not have to prove the elements, and
mens rea, of actually committing the sexual act.
Subsections (d)(1) and (dX2) essentially codify this same concept as
it applies to the Online Solicitation statute. The State can charge a
defendant with Online Solicitation under S 33.021, or, if the defendant
engaged in actual illegal sexual contact, the State could charge the
defendant under sections of the penal code covering the acts committed. lf
the State charged the defendant with engaging in actual sexual abuse, the
24
State would have to prove up the requisite mens rea for said abuse under
that statute. On the other hand, if the defendant is solely charged with
solicitation, subsections (dX1) and (dX2) put a defendant on notice that the
State will not have to prove anything at all regarding the defendant's intent
or conduct after the solicitation has occurred; rather the State will meet its
burden merely by proving the defendant intended to engage in the
solicitation, regardless of what happened after the fact.
Alternatively, Any Unconstitutional Portions of Subsection (d)
Should Be Struck
lf the court were to find that any portion of subsection (d) could not be
read consistently with subsection (c), then legislative intent is best served
by upholding the constitutionality of subsection (c) and striking out any
potentially inconsistent subsections. The Iegislative intent behind S 33.021
was to permit law enforcement officers to find and catch sexual predators
before the predator makes actual contact with, and harms, a
child. See Criminal Justice Comm., Senate Research Ctr., Bill Analysis,
Tex. H.B.2228,79th Leg., R.S. (July 27,2005). The Texas Court of
Criminal Appeals addressed S 33.021, saying, "Looking at the present
statute, the compelling interest of protecting children from sexual predators
is well served by the solicitation-of-a-child prohibition in subsection (c)." Ex
25
Parte Lo,424 S.W.3d at23. Should any impermissible conflict be found,
the court should uphold subsection (c), which properly serves the
!egislative interest.
Arouments and Authorities
E. Section (C) Survives Rational Basis Review
Subsection (c) of $ 33.021 survives constitutional analysis under a
Rational Basis standard of review. Subsection (c) prohibits conduct that
has no First Amendment free speech protection; therefore, the court must
analyze it de novo under a "rational basis" standard of review and presume
the statute is valid . Ex Parte Lo, 424 S.W.3d at 14; Maloney,294 S.W.3d
at 626. lf a reasonable construction exists that renders the statute
constitutional, the court must uphold it. Ely, 582 S.W.2d 419 Tarlton v.
Sfafe, 93 S.W.3d 168, 175 (Tex.App.-Houston [14th Dist.] 2002, pet.
refd); Duncantell v. State,230 S.W.3d 835, 843 (Tex. App.-Houston [14th
Dist.l 2007, pet. refd).
The "rational basis" standard of review places the burden on the
Applicant, not the State. Applicant expresses concern that an adult
engaging in innocent roleplay could feasibly be targeted under the law.
Brief for Appellant, at 5-6. However, "[T]he mere fact that one can
conceive of some impermissible applications of a statute is not sufficient to
26
render it susceptible to an overbreadth challenge." Members of City Council
of City of Los Angeles v. Taxpayers for Vincent,466 U.S. 789,800 (1984).
The presumption of validity means that to prevail, Applicant must prove that
subsection (c) could never be constitutionally applied to any defendant
under any set of facts or circumstances. Sfafe v. Rosseau, 396 S.W.3d
550, 557 (Tex. Crim. App. 2013); Santikos v. Sfafe, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992). Applicant provided no evidence or argument to
that effect.
Texas courts have already determined that subsection (c) has a
rational relationship to a Iegitimate state purpose. As our First Court of
Appeals stated, "The prevention of sexual exploitation and abuse of
children addressed by the Texas online solicitation of a minor statute
constitutes a government objective of surpassing importance." Maloney,
294 S.W.3d at 628; citing New York v. Ferber,458 U.S. 747,773 (1982); ln
re Shaw,204 S.W.3d 9, 15 (Tex. App.-Texarkana 2006, pet.
ref'd.); People v. Smith,347 lll. App. 3d446 (lll. App. Ct. 2004). The Court
of Crimina! Appeals, referring to S 33.021(c), stated, "Looking at the
present statute, the compelling interest of protecting children from sexual
predators is well served by the solicitation-of-a-child prohibition in
subsection (c)." Ex Parte Lo,424 S.W.3d at23. Subsection (c), which
27
penatizes soliciting minors for illegal sex acts, clearly has a rational
relationship to the legitimate state purpose of protecting children from
sexual exploitation and abuse.
F. Texas Penal Code S 33.021 ls Not Overly Broad
Subsection (c) of Texas Penal Code S 33.021 triumphs over any
overbreadth argument. Our First Court of Appeals has already upheld the
facial constitutionality of subsection (c) against a First Amendment-based
overbreadth challenge, and the Court of Criminal Appeals applauded the
reasoning. Maloney,294 S.W.3d at625-29; Ex Parte Lo,424 S.W.3d at
15-16. A statute is impermissibly overbroad if, in addition to prohibiting
acts that may be constitutionally prohibited, it includes speech or conduct
protected by the First Amendment. Bynum v. Sfafe, 767 S.W .2d 769, 772
(Tex. Crim. App. 1989); see also Vill. of Hoffman Esfafes v. Flipside,
Hoffman Esfafes, lnc., 455 U.S. 489 , 494 (1 982). As discussed above,
solicitation of another to perform a crimina! act is not speech protected by
the First Amendment. Williams, 553 U.S., at297. As subsection (c) only
prohibits speech or conduct that is unprotected by the First Amendment, it
cannot run afoul of the overbreadth doctrine.
Moreover, as subsection (c) regulates conduct, not mere speech,
Applicant must meet an even heavier burden to prove the statute is
28
overbroad. As the First Court of Appeals pointed out, "When conduct and
not merely speech is involved, any overbreadth of a statute must "not only
be real, but substantial as well, judged in relation to the statute's plainly
legitimate sweep." Broadrick,413 U.S. at 61 5; Maloney, 294 S.W.3d at
627. Applicant alleges that subsection (c) criminalizes a substantial
amount of constitutionally protected speech by forbidding fantasies. Brief
for Appellant, at 11-12. However, this argument has been considered and
rejected by both the First and Fourth Courts of Appeals
Subsection (c) is narrowly drawn to regulate those who would use the
internet to obtain minor victims for sexual misconduct. The "substantial
amount of protected speech" Applicant claims will be prohibited by the
current statute is fantasy role-playing, or "ageplay." Brief for Appellant, at
13. The Maloney court examined this reasoning and rejected it. Maloney
succinctly stated, "More importantly, S 33.021 does not make it a criminal
offense simply to engage in a fantasy, as appellant seems to suggest.
Rather, S 33.021 unambiguously provides that a person is prohibited from
knowingly soliciting a minor over the internet, or through other electronic
media, to meet him or another person with the intent that the minor will
engage in sexual contact, sexual intercourse, or deviate sexua! intercourse
with him or another person." Tex. Penal Code Ann. S 33.021 (c); Maloney,
29
294 S.W.3d at 628-629. The statute does not criminalize the act of fantasy
unless a defendant is engaging in fantasy while also intending to solicit a
minor for sex.
1. The Statufe is Narrowly Tailored
First, the statute's definition of "minor" is narrowly drawn to serve the
State's interest. Applicant argues that the statute defines "minor" too
broadly because it includes "an individua! who represents himself or herself
to be younger than 17 years of age." Tex. Pen. Code Ann.
533.021(aX1XA) (Vernon 2012). Applicant claims this would penalize
adults who are merely engaging in a mutual fantasy with other adults. Brief
for Appellant, at 13-15. However, a plain reading of the statute would not
criminalize two adults who agree that one of them will pretend to be a minor
during their conversations. ln a truly innocent "ageplay" scenario, the
person solicited would first represent herself to be an adult but then agree
to pretend to be a minor. By contrast, in an illegal solicitation, the person
solicited has represented themselves as someone under the age of
seventeen
The statute, as written, prevents a defendant from relying on the
defense that even though a minor represented herself as a child, he
thought she was older. The reasoning behind this is analogous to the
30
reasoning behind strict liability laws regarding sexual abuse. ln Scoff v.
Sfafe, the First Court of Appeals explained why statutory rape laws are
constitutional, stating, "The statute rationally furthers a legitimate
governmental interest. lt protects children from sexual abuse by placing the
risk of mistake as to a child's age on an older, more mature person who
chooses to engage in sexual activity with one who may be young enough to
fall within the statute's purview." Scoff v. Sfafe, 36 S.W.3d240 (Tex.
App.-Houston [1"t Dist.] 2001, pet. ref'd.); citing United Sfafes v. Ranson,
942F.2d775,776-77 (10th Cir. 1991). Likewise, here, a defendant bears
the risk when soliciting a person who has clearly represented himself or
herself to be younger than seventeen.
Next, the potential, if any, for abuse of the statute to restrict innocent
behavior remains exceptionally low. The instant issue can be analogized
again to the Texas law prohibiting solicitation of prostitution. ln Tisdale v.
Sfafe, the San Antonio Court of Appeals faced a similar overbreadth
challenge to the prostitution statute. There, the defendant listed five
separate innocent interactions which could theoretically be prosecuted
under the Texas prostitution law. Tisdale v. State, 640 S.W.2d 409,
414 (Tex. App.-San Antonio 1982, pet. refd.). The court found it
persuasive that the defendant was unable to provide any cases
3l
demonstrating an actual abuse of the statute, and the court held it was
clearly possible to narrowly interpret the statute in order to protect innocent
interests. /d. Likewise, Applicant has failed to provide any case-specific
examples of overreaching by the State to prosecute harmless fantasy
between adults.
Finally, Subsection (d)(3), when read in proper context with
subsection (c), does not unnecessarily regulate pure fantasy behavior. The
Fourth Court of Appeals in Zavala found Applicant's "fantasy" argument
unpersuasive. Whether or not "ageplay" is prevalent is irrelevant, as the
statute does not criminalize adults seeking to sexually pretend with other
adults. Subsection (c) penalizes adults knowingly seeking children for
sexual activity. The defendant in Zavala attempted to argue that by
disallowing fantasy as a defense, the legislature had criminalized engaging
in fantasy. Ex Parte Zavala,421 S.W.3d at 231-232. Ihe Zavala court
responded, "The crime of soliciting a minor under S 33.021(c) is committed,
and is completed, at the time of the request, i.e., the solicitation. The
requisite intent arises within the conduct of soliciting the minor, and must
exist at the time of the prohibited conduct of solicitation." Ex Parte Zavala,
421 S.W.3d at 232. That mens rea of knowing solicitation of a minor must
exist at the time of the solicitation; if it does not, then the crime has not
32
been committed. Again, the fact that a defendant was also engaged in
fantasy at the time of the solicitation will not excuse him. The statute is
sufficiently limited to target those who are actively seeking children for
sexual abuse.
As Maloney, Lo and Zavala clearly held, subsection (c) is narrowly
tailored to protect children from sexual abuse, and subsection (d) merely
provides that an accused who has actively sought to solicit a child for sex
may not defend against the charge by later arguing that he changed his
mind orwas just engaging in a fantasy. Tex. Pen. Code Ann. S 33.021(d)
(Vernon 2012); Maloney,294 S.W.3d at628-629; Ex Parte Lo,424 S.W.3d
at 16-17,21; Ex Parte Zavala,421 S.W.3d at 232. The FirstCourt of
Appeals concluded that any slight potential for overbreadth of $ 33.021 is
not prohibitive when judged in relation "to its plainly legitimate sweep."
Maloney,294 S.W.3d at628. A constitutional overbreadth challenge
cannot prevail.
2. The Statufe Seryes a Compelling Governmental lnterest
The protective sweep of $ 33.021 (c) promotes a state interest that
far outweighs the potential for improper application. Applicant has
conceded that the online solicitation statute promotes a compelling state
interest. Brief forAppellant, at17. ln Neur Yorkv. Ferber, the United
33
States Supreme Court explained that a statute which could prohibit
constitutionally protected speech or conduct can still be upheld when the
statute's legitimate reach dwarfs all potentially impermissible applications.
New York v. Ferber,458 U.S. 747 , 773-774 (1982).
The public interest in protecting children from being solicited online
for sexual abuse is clearly high. The defendant in Frieling v. State argued
that the Texas prostitution statute was overbroad because it swept innocent
conduct, such as joking or merely pretending to agree to prostitution under
its umbrella of prohibition. Frieling v. Sfafe, 67 S.W.3d 462, 473-474 (Tex.
App.-Austin 2002, pet. ref'd.). However, the Frieling court found that the
public interest in restricting prostitution substantially outweighed the
defendant's overbreadth concerns. Likewise, Applicant argues that the
present statute fails because someone who merely pretends to solicit
minors could be prosecuted under the present statute. The governmental
interest in protecting children from sexual abuse certainly equals, and likely
far exceeds, the governmental interest in regulating prostitution.
Likewise, the United States Supreme Court in New York v. Ferber,
stated the mere potential for impermissible application alone will not make
a statute facially invalid when the governmental interest is high. Ferber,
458 U.S. at773-74. The Ferbercase examined whether New York's child
34
pornography statute was overbroad. The court noted that the statute could
hypothetically restrict innocent images such as medical and social texts;
however the court found that the interest of protecting children from abuse
completely dwarfed any potentially impermissible application. Ferber, 458
U.S. at 773.
ln People v. Smith, the lllinois Appellate Court, Third District, upheld
a similar indecent solicitation of a child statute, rejecting the overbreadth
argument. Smith,347 lll. App. 3d 446. The Smifh court concluded that
while some misapplication of the statute could potentially occur, the
legitimate goal of the statute-to prevent sexual exploitation and abuse of
children-far surpassed any potential unlaMul applications. /d. The court
found that situations where the State may abuse the statute to try to punish
innocent conduct would be exceedingly rare. /d. Likewise, Applicant here
has failed to show that the rare potentia! for improper application outweighs
the substantial State interest involved.
The remainder of Texas Penal Code 533.021 survives any
vagueness challenge, as the plain meaning of the word "solicitation" in the
statute is facially clear
35
A. Applicant Cannot Raise a New Vagueness Ground
on Appeal
Texas Pena! Code S33.021(c) has survived past challenges for
vagueness. Ex Parte Zavala,421 S.W.3d at 232; Maloney,294 S.W.3d at
628-629. To find a statute is unconstitutionally vague, the court must find
that men of common intelligence must necessarily guess at the statute's
meaning . Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
See Grayned v. City of RocWord, 408 U.S. 104, 108-1 14, (1972); Colten
v. Kentucky, 407 U.S. 104, 110-1 11 (1972); Cameron v. Johnson, 390
U.S. 61 1,616 (1968). Applicant's sole argument in his brief to the trial
court was a summary conclusion that men of ordinary intelligence must
guess at the meaning of the word "solicitation." Application for Writ of
Habeas Corpus and Brief in Support, at 7-8.
Applicant now argues the entirety of Texas Penal Code $33.021 is
vague due to Applicant's perceived inconsistencies in the meanings of
subsection (c) and subsection (d). Brief for Appellant, at 18-20. Texas
Rule of Appellate Procedure 33.1(a) requires Applicant to give the grounds
for his complaint to the trial court with sufficient specificity to make the trial
court aware of the complaint in order to preserve his grounds for appellate
36
review. Tex. R. App. P. 33.1 (Vernon). Applicant cannot now raise new
grounds for vagueness that he did not raise at the trial court level. Valdez
v. Valdez,930 S.W.2d725 (Tex. App.-Houston [1't Dist.] 1996, no pet.);
Wren v. Texas Employment Com'n,915 S.W.2d 506 (Tex. App.-Houston
114'n Dist.l 1995, no pet). Applicant's present objection must comport with
his former objection at trial in order to be preserved for review. Rothstein v.
Sfafe,267 S.W.3d 365 (Tex. App.-Houston [14fi' Dist.] 2008, pet. refd.).
At trial, Applicant solely objected to the plain meaning of one word. Now,
he objects to multiple subsections on the ground that they cannot be read
consistently. This new objection was not preserved.
B. Subsections (c) and (d) Are Not lmpermissibly Vague
Alternatively, Texas courts have addressed similar concerns before in
other solicitation offenses and have had no trouble interpreting the State's
burden. The meaning of solicitation in Texas Penal Code 533.021 does not
differ substantially from any of Texas's other solicitation offenses.
Applicant claims that the court's reasoning in Zavala only illustrates the
vagueness within the statute. Brief for Appellant, at 18-20. However,
Applicant fundamentally misinterprets the distinction made by the Zavala
court-a distinction made frequently regarding solicitation crimes. The
defendant's actions and intent after the solicitation occurred are irrelevant.
37
The State need only prove the defendant possessed the requisite mens rea
when the solicitation occurred.
ln all cases that involve an offer to commit criminal activity, there are
two mens reas potentially at issue: the mens rea necessary to commit the
solicitation, and the mens rea to commit the actual crime being solicited.
The State must prove the former, not the latter. For example, Texas courts
have held that the offense of bribery is completed when the offer or
agreement is made, and it is no defense that the action for which one was
bribed was never undertaken. Rath y. Sfafe, 33 S.W. 229 (Tex. Crim. App.
1895); Aaron v. Sfafe,275 S.W.2d 693,695 (Tex. Crim. App. 1955); Cerda
y. Sfafe,750 S.W.2d925,927 (Tex.App.-Corpus Christi 1988, pet. ref'd.).
Likewise, the Texas Penal Code Statute for Criminal Solicitation states it is
no defense if the actor could not have actually committed the crime herself,
or if the person she solicited was not criminally responsible for the crime.
Tex. Pen. Code Ann. S 15.03(c) (Vernon2012). ln both of these examples,
the State must prove the solicitation, or offer, but the State is not required
to prove an additional mens rea or commission after the fact.
Texas courts have treated solicitation for prostitution cases similarly.
ln Maftias v. Sfafe ,731 S.W.2d 936, 937 (Tex. Crim. App. 1987), the Texas
Court of Criminal Appeals held that a person could be guilty of knowingly
38
offering to engage in prostitution even if she does not possess the intent to
actually consummate the sexual conduct. The State must prove the
defendant knowingly offered to consummate, but the State need not prove
that the defendant actually intended to consummate the act after the
solicitation was complete. Likewise, subsections (c) and (d) of Texas Penal
Code S 33.021 can be read to give a similar meaning. At the time of the
solicitation, the defendant must knowingly solicit the minor with the intent
that the minor will engage in sexual conduct. However, it is no defense if
there was no consummation or if the defendant lacked intent to
consummate after the solicitation occurred.
Previous attacks on subsections (c) and (d) for vagueness have
failed. The defendant in Maloney unsuccessfully argued that the statute
was vague, claiming it could be read to prohibit lawfu! fantasy as well as
true solicitation. The Maloney court stated that the solicitation portion of
533.021(c) was unambiguous. Maloney,294 S.W.3d aL628-629. Later,
the defendant in Zavala argued that the internal Ianguage within the statute
left confusion as to the intent required for solicitation. Ex Parte Zavala, 421
S.W.3d at231. The Fourth Court of Appeals found the plain language
meaning of solicitation was sufficiently clear. Ex Parte Zavala,421 S.W.3d
39
at231-232. The plain meaning of "solicitation" within S 33.021 (c) survives
any challenge for vagueness.
ilr Rtr.qPoNstr To Po NT Otr FRI?OR TI.{Rtrtr
The Dormant Commerce CIause does not apply to $ 33.021.
Alternatively, the statute survives the Dormant Commerce Clause
balancing test, as any potentia! burden on commerce does not outweigh
the legitimate local interest in preventing solicitation of minors for illegal
sexual acts.
A. The Dormant Gommerce Clause Does Not Apply
Applicant has presented no law stating the Dormant Commerce
Clause applies to online solicitation of a minor; in fact, the case Applicant
cited as persuasive authority does not address the issue at all. The court in
American Libraries Assocration v. Pataki, specifically excluded the issue of
soliciting or luring children on the internet. The court plainly noted,
"[P]laintiffs do not challenge the sections of the statute that criminalize ...
and prohibit adults from luring children into sexual contact by
communicating with them via the internet." Am. Libraries Assh v. Pataki,
969 F. Supp. 160, 179 (S.D.N.Y. 1997). Contrary to Applicant's assertions,
that court never indicated the dormant Commerce Clause should be
applied to statutes prohibiting solicitation of minors on the internet.
40
Texas Penal Code S 33.021 does not violate the dormant commerce
Clause. Applicant claims the statute violates the clause by attempting to
place regulations on all internet users. Brief for Appellant, at20. However,
attempting to regulate internet activity is not the proper legal test that must
be applied to a state statute.
To evaluate a state statute under the dormant Commerce Clause, a
court must first determine whether the statute facially discriminates against
interstate commerce. Oregon Waste Sys., lnc. v. Dep't of Envtl. Quality of
Sfafe of Or., 511 U.S. 93, 99 (1994). lf the statute treats commerce within
the state differently from commerce between states, then the statute is
deemed "virtually per se invalid." /d. !f it does not, the court must apply the
balancing test from Pike v. Bruce Church to determine whether the local
benefits outweigh the burdens on interstate commerce. Pike v. Bruce
Church, \nc.,397 U.S. 137, 142 (1970). Under the Pike test, the court must
determine if there is a legitimate local public interest and whether "the
burden imposed ... is clearly excessive in relation to the putative local
benefits." /d.
B. Subsection (c) Does Not Restrict Commerce
The plain Ianguage of Texas Penal Code S 33.021 does not address
commerce at all. Tex. Pen. Code Ann. S 33.021 (Vernon 2012).
4l
Commerce is the exchange of goods and services on a large scale
involving transportation between cities, states and nations. Black's Law
Dictionary (9th ed. 2009), available af Westlaw BLACKS. Appellant makes
no suggestion as to how prohibiting solicitation of minors for sex falls under
the heading of commerce. Even if the statute did touch the broadest
possible concept of commerce, Applicant has given no example of how
Texas Penal Code S 33.021 treats those using the internet within the state
to solicit children differently from those outside of the state. As the statute
does not treat commerce within the state differently than commerce
between the states, the Pike test applies
C. Texas Penal Gode S 33.021 Passes the Pike Test
The state in the present case has not only a legitimate local public
interest, but a compelling interest in protecting children from sexual
predators, and the Texas Court of Criminal Appeals has already held that
interest is well served by the prohibition in subsection (c). Ex Parte Lo, 424
S.W.3d at23. Further, there is neither evidence nor argument from
Applicant that any purported burden on interstate commerce would be
clearly excessive as balanced against the Iocal benefits of protecting the
children of Texas from sexual abuse.
42
Finally, the Dormant commerce clause is a ' judge-made" doctrine
and Supreme Court Justice Clarence Thomas, in a concurring opinion,
noted of the so-called Dormant Commerce Clause that it, "has no basis in
the text of the Constitution, makes little sense, and has proved virtually
unworkable in application, and, consequently, cannot serve as a basis for
striking down a state statute." McBurneyv. Young, 133 S. Ct. 1709, 1721
(2013).
IV. CONCLUSION
Soliciting minors for sexual abuse has historically fallen into a
category wholly outside the protections of the First Amendment of the
Constitution. Texas Penal Code S 33.021 (c) serves the compelling state
interest of protecting children from sexual abuse while being narrowly
drawn to meet those needs. The subsection is neither overbroad, nor
vague, and it is not prohibited by the Dormant Commerce Clause. The
State moves the court to uphold the constitutionality of the statute and
DENY Applicant any and all relief.
43
V. PRAYER
Appellee respectfully prays this Honorable Court to deny Applicant's
application for habeas relief.
tuffi
Respectfully su bm itted,
Brandy Robinson
Texas Bar No. 24051688
Austin County Courthouse
One East Main Street, 3'd Floor
Bellville, Texas 77418
(e7e) 865-5e33
44
l, Brandy Robinson, hereby certify that in compliance with Rule of
Appellate Procedure 9.4(iX1), according to Microsoft Word's word counting
function, this document contains contains 8,175 words.
Date: 2 -
ra binson
CERTIFICATE OF SERVICE
l, Brandy Robinson, hereby certify that a true and correct copy of the
foregoing instrument has been served upon the Appellant by sending the
same through the United States mail to his attorney, Mark Bennett, via
email at mb@ivi3.com.
Date: 2-5_/5
Robinson
45
Ex Parte Stuart Oland Wheeler
Combined Opinion