Israel Cardoso-Reyna v. State, 03-19-00050-CR

Background

In Nov. 2015 Cardoso-Reyna pulled over to speak with a woman and agreed to pay $20 for oral sex; the woman was an undercover APD officer and he was arrested shortly after leaving the scene.
Charged by information with solicitation of prostitution under Tex. Penal Code § 43.02(b); he pleaded no contest after pretrial rulings and received a suspended 180-day jail sentence, $2,000 fine, and one year community supervision.
Pretrial, he moved to quash the charge asserting facial and as-applied constitutional challenges (First Amendment overbreadth; Fourteenth Amendment substantive due process) and moved to suppress evidence claiming the arrest resulted from racial profiling.
At the hearing Officer Kyle Robertson testified APD targets prostitution “hot spots” using race-neutral criteria (patrol reports, analyst trends, citizen complaints); undercover officer was instructed to engage any motorist who stopped.
Trial court denied the motion to quash and the motion to suppress; the court of appeals affirmed, crediting the officer’s testimony and rejecting constitutional challenges.

Issues

Issue	Cardoso-Reyna's Argument	State's Argument	Held
Whether § 43.02(b) is facially overbroad under the First Amendment	§ 43.02(b) restricts protected speech (content-based) and chills lawful expression; "fee" is undefined and could cover noncommercial, private exchanges	Solicitation of an illegal transaction (offer/agreement to pay for sex) is unprotected speech; statute targets offers to engage in illegal conduct	Court: Not overbroad; solicitation of prostitution is speech integral to criminal conduct and unprotected
Whether § 43.02(b) violates substantive due process (right to consensual sexual conduct for pay)	Asserts a liberty interest in private sexual conduct including consensual paid sex	Lawrence and Obergefell do not protect prostitution; under rational-basis the statute furthers legitimate interests (deterring trafficking, assault, disease)	Court: No fundamental right implicated; statute survives rational-basis review
Whether § 43.02(b) is unconstitutional as applied because enforcement was racially motivated	Enforcement targeted Hispanic community and Hispanic men—statute therefore operated unconstitutionally against him	Evidence shows site selection used race-neutral hot-spot criteria; no proof statute was applied because of race	Court: Not an as-applied statutory challenge; appellant failed to show the statute itself was applied unconstitutionally
Whether evidence from arrest must be suppressed as product of racial profiling	Arrest and evidence obtained from an impermissible, race-based law-enforcement action	Officer testimony and video corroborate race-neutral, behavior-based sting procedures	Court: Trial court did not abuse discretion; denied suppression

Key Cases Cited

Lawrence v. Texas, 539 U.S. 558 (2003) (recognized due-process protection for certain intimate conduct but expressly did not involve prostitution)
Washington v. Glucksberg, 521 U.S. 702 (1997) (standard for identifying fundamental liberty interests)
United States v. Williams, 553 U.S. 285 (2008) (offers to engage in illegal transactions are categorically unprotected speech)
Ex parte Ingram, 533 S.W.3d 887 (Tex. Crim. App. 2017) (overbreadth doctrine requires realistic, substantial unconstitutional applications)
Wagner v. State, 539 S.W.3d 298 (Tex. Crim. App. 2018) (framework for identifying speech covered by statute in overbreadth analysis)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement standard for protected advocacy)
Steinbach v. State, 979 S.W.2d 836 (Tex. App.—Austin 1998) (interpreting "fee" in § 43.02 to mean payment for professional services)
Frieling v. State, 67 S.W.3d 462 (Tex. App.—Austin 2002) (rejecting overbreadth challenge to prostitution statute)
Erotic Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880 F.3d 450 (9th Cir. 2018) (upholding prostitution law under rational-basis review)