Ex parte Ingram
533 S.W.3d 887
| Tex. Crim. App. | 2017Background
- Appellant was indicted (May 2013) under the pre-2015 Texas Penal Code § 33.021(c) for online solicitation of a minor by electronic communications with intent that the minor engage in sexual activity.
- The pre-2015 statute defined “minor” to include (A) an individual who "represents" themselves to be under 17 and (B) an individual whom the actor believes to be under 17; § 33.021(d) stated certain facts "are not a defense," including that the actor did not intend the meeting to occur or was engaged in a fantasy.
- Appellant filed a pretrial habeas facial constitutional challenge: attacking subsections (d)(2)–(3) as negating mens rea, impairing the right to present a defense, causing vagueness, and contributing to overbreadth; also challenged the “represents” definition as capturing consensual adult role-play and raised a Dormant Commerce Clause claim.
- Trial court denied habeas relief; the court of appeals affirmed; the Texas Court of Criminal Appeals (majority) likewise affirmed, rejecting the constitutional challenges.
- The majority held: (1) challenges to freestanding anti-defensive provisions (like (d)(2)–(3)) are not cognizable in pretrial habeas because they are not "law applicable to the case" until evidence at trial raises them; (2) construing “represents” narrowly (a factual assertion of age that a reasonable listener would take as a fact) avoids overbreadth; (3) the statute does not violate the Dormant Commerce Clause.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Cognizability of attacks on § 33.021(d)(2)–(3) ("anti-defensive" provisions) | Subsections (d)(2)–(3) unconstitutionally negate mens rea, impair right to present a defense, and create vagueness/overbreadth; review available pretrial | Such provisions are freestanding anti-defensive issues not yet "law applicable" until trial evidence raises them; pretrial habeas is inappropriate | Not cognizable on pretrial habeas; challenges must await trial record (majority) |
| Construction of “represents” in definition of "minor" | "Represents" is broad enough to cover adults role-playing as minors, producing overbreadth and First Amendment problems | "Represents" should be narrowly construed as asserting age as a fact (intent + reasonable-listener perception), avoiding capture of consensual adult role-play | "Represents" construed narrowly (intent to assert fact + reasonable listener would perceive it); statute not unconstitutionally overbroad |
| Overbreadth of solicitation statute under First Amendment | Statute sweeps in protected adult-to-adult role-play and other protected speech due to "represents" and (d) | Solicitation to induce illegal sexual activity (including when actor believes or is reckless about age) is unprotected; narrow reading preserves constitutionality | Statute narrowly construed; most covered speech is unprotected inchoate solicitation and any incidental protected instances are dealt with as-applied; overbreadth claim rejected |
| Dormant Commerce Clause challenge | § 33.021 impermissibly burdens interstate commerce and reaches communications wholly outside Texas (citing Pataki) | Statute targets personally directed communications with in-state nexus; any burden is incidental and outweighed by compelling interest in protecting children | Dormant Commerce Clause facial challenge fails; statute does not impermissibly regulate interstate commerce |
Key Cases Cited
- United States v. Williams, 553 U.S. 285 (2008) (offers to engage in illegal transactions are categorically unprotected speech)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (reckless disregard standard removes First Amendment protection in libel context)
- United States v. Bailey, 228 F.3d 637 (6th Cir.) (impossibility due to factual mistake is not a defense to inchoate crimes)
- United States v. Meek, 366 F.3d 705 (9th Cir.) (First Amendment does not protect solicitation of minors even when the defendant is mistaken about the addressee’s age)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (child-luring statutes routinely upheld; such speech is often unprotected)
- Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) (limits on pretrial habeas review; extraordinary remedy)
- American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (federal district court decision criticizing internet regulation as overbroad under Commerce Clause; discussed but distinguished)