Ex Parte John Christopher Lo
393 S.W.3d 290
Tex. App.2011Background
- Appellant Lo challenges denial of habeas relief to dismiss indictment under Tex. Penal Code § 33.021(b) online solicitation of a minor.
- Indictment alleges Lo, age over 17, with intent to arouse or gratify sexual desire, communicated sexually explicit content to a minor via text/online service.
- Lo sought pretrial habeas relief arguing § 33.021(b) is facially invalid as overbroad, vague, and violates the Dormant Commerce Clause.
- Texas responded that the statute serves preventing sexual exploitation of children and that its elements narrow applications.
- Trial court denied relief; on appeal the court reviewed de novo and upheld the statute as constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 33.021(b) overbroad under the First Amendment? | Lo: statute sweeps protected speech and is not narrowly tailored. | State: legitimate aim to protect children; narrowing by intent and targeting of minors. | Not facially overbroad. |
| Is § 33.021(b) vague under the First Amendment? | Lo: definition of sexually explicit vague; risk of arbitrary enforcement. | State: statute provides adequate notice and intentional elements. | Not unconstitutionally vague. |
| Does § 33.021(b) violate the Dormant Commerce Clause? | Lo: Internet regulation burdening interstate/international commerce. | State: statute narrowly targets adult conduct directed at a minor with specific intent. | No Dormant Commerce Clause violation. |
Key Cases Cited
- Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009) (overbreadth not substantial; important goal in preventing exploitation)
- Williams v. United States, 553 U.S. 285 (U.S. 2008) (overbreadth requires substantial protected-speech impact relative to sweep)
- Ferber v. New York, 458 U.S. 747 (U.S. 1982) (permissible obscenity-like regulation of child pornography)
- Ginsberg v. New York, 390 U.S. 629 (U.S. 1968) (definition of harmful material consistent with obscenity standards for minors)
- Stone v. State, 137 S.W.3d 167 (Tex. App.—Houston [1st Dist.] 2004) (statute targeting display of harmful material to minors with proper scienter)
- Vasquez v. State, No official reporter citation in text provided (Tex. App.—Dallas 2007) (not included due to lack of official reporter citation in provided material)
- State v. Colosimo, No official reporter citation in text provided (Nev. 2006) (Dormant Commerce Clause analysis of online solicitation)