EX PARTE Stuart Oland WHEELER
No. 01-14-00868-CR
Court of Appeals of Texas, Houston (1st Dist.).
Opinion issued September 29, 2015
Discretionary Review Refused February 3, 2016
477 S.W.3d 89
Rebeca Huddle, Justice
tended to encompass such an examination. This is not a simple case of a pleading that fails to state a cause of action with a basis in law and fact, as the majority maintains.
Accordingly, Valentina‘s sixth and seventh issues, assailing the trial court‘s dismissal of her petition, should be sustained, and the trial court‘s order dismissing her causes of action and awarding attorney‘s fees to the temporary administrator should be reversed and remanded. The remainder of Valentina‘s issues would thereby be rendered moot.
For the foregoing reasons, I respectfully dissent.
Travis J. Koehn, District Attorney, Randy N. Robinson, Assistant District Attorney, Bellville, TX, for State.
Panel consists of Justices Jennings, Higley, and Huddle.
OPINION
Rebeca Huddle, Justice
Stuart Oland Wheeler was indicted on the felony charge of online solicitation of a minor under
Penal Code Section 33.021
Wheeler was indicted under
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.
The Parties’ Arguments
Wheeler contends that these provisions are facially unconstitutional in three respects. First, he asserts that they are overbroad because they impermissibly restrict protected speech between persons engaged in “ageplay,” which Wheeler asserts is a prevalent practice in which consenting adults roleplay as children for their sexual gratification. According to Wheeler, the statute is overbroad because it permits the conviction of an ageplayer who speaks solicitant words to “the object of his sexual attention, who ‘represents himself to be a child‘“—and thus meets the statute‘s definition of “minor“—but is not in fact a child. Wheeler also contends that the statute is overbroad because subsection (d) both (1) eliminates the specific intent requirement of (c) and (2) precludes an ageplayer from defending himself on the basis that the solicitation was a mere fantasy.
Second, Wheeler argues that the statute is unconstitutionally vague because subsection (c) purports to require proof of specific intent—that the defendant intended to meet and have sexual contact with the minor at the time of the solicitation—only to have subsection (d) “eliminate[] the intent element” of (c). Wheeler asserts that this contradiction prevents persons of ordinary intelligence from understanding the prohibited conduct.
Finally, Wheeler asserts that the statute violates the Dormant Commerce Clause because it unduly burdens interstate commerce by “attempting to place regulations on [i]nternet users everywhere.”
The State contends that
Standard of Review
Whether a statute is facially unconstitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d at 14. When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Id. at 14-15. The party challenging the statute normally carries the burden to establish the statute‘s unconstitutionality. Id. at 15.
A different standard of review applies, however, if the challenged statute seeks to restrict speech based on its content. Ex parte Lo, 424 S.W.3d at 15. In that case, the usual presumption of constitutionality is reversed, the statute is presumed invalid, and the State bears the burden to rebut the presumption. Id. This is because statutes that suppress, disadvantage, or impose differential burdens upon speech because of its content are subject to the most exacting scrutiny. Id. (quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). A law that regulates speech thus survives only if it is narrowly drawn and necessary to serve a compelling state interest. Ex parte Lo, 424 S.W.3d at 15.
Wheeler argues that the Court of Criminal Appeals incorrectly applied strict scrutiny in Ex parte Lo, and he urges us to apply the “categorical approach.” We conclude that we are bound to apply the usual standard in which we presume the statute‘s validity and Wheeler bears the burden to demonstrate its invalidity.
Ex parte Lo leads us to this conclusion. Lo was charged under
In reaching that conclusion, the Court of Criminal Appeals noted that subsection (c), under which Wheeler was charged, “pro-vides
Overbreadth Challenges
According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a “substantial” amount of protected speech “judged in relation to the statute‘s plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)); see also Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial in relation to its plainly legal sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Put differently, a statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. See In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref‘d).
1. Penal Code Section 33.021(c)
This Court, and the Beaumont Court of Appeals, have held that
But longstanding precedent teaches that a statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); Ex parte Victorick, 2014 WL 2152129, at *2. Indeed, the United States Supreme Court has ex-plained,
Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort.”
New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing Broadrick, 413 U.S. at 613, 93 S.Ct. 2908).
Here, the government objective—to protect children from sexual exploitation and abuse—is one the Supreme Court of the United States regards as having surpassing importance. Id. at 757, 102 S.Ct. 3348. Although the Dohearty article asserts that ageplay is increasingly prevalent in the age of social media, we conclude that the legitimate reach of
2. Penal Code Section 33.021(d)(2)
Wheeler contends that
“If a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity.” Maloney, 294 S.W.3d at 626. Here, we read subsection (c) to require proof of specific intent to meet at the time of the solicitation, and subsection (d)(2) to refer only to the solicitor‘s intent post-solicitation. In other words, we interpret subsection (d)(2) to preclude only a defense on the basis that the solicitor lost the specific intent to meet or changed his mind about meeting after the solicitation occurred. We hold that Subsection (d)(2) does not relieve the State of its burden to prove that the defendant had the specific intent to meet at the time of the solicitation.2 See Ex parte Zavala, 421 S.W.3d at 231-32 (concluding that Penal Code sections 33.021(c) and (d)(2) are
3. Penal Code Section 33.021(d)(3)
Wheeler argues that
As we discussed above, a statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d at 15 (citing Taxpayers for Vincent, 466 U.S. at 800, 104 S.Ct. 2118); Ex parte Victorick, 2014 WL 2152129, at *2. As we have already concluded, the statute‘s plainly legitimate objective is one of surpassing importance. When judged in comparison to the statute‘s plainly legitimate sweep, we conclude that the statute‘s arguable overbreadth is insubstantial. Accordingly, we hold that
We overrule Wheeler‘s first issue.
Vagueness Challenge
Under the void-for-vagueness doctrine, a statute will be invalidated if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.2006). Statutes are not necessarily unconstitutionally vague merely because the words or terms employed in the statute are not defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988). When the words used in a statute are not otherwise defined in the statute, we will give the words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex.Crim.App.1999).
Wheeler argues that the statute is unconstitutionally vague because Section 33.021(d) “eliminates the intent element from Section 33.021(c).” Wheeler asserts that the statute is thus self-contradictory and, therefore, people of common intelligence must necessarily guess at its meaning. As we discussed in the context of Wheeler‘s overbreadth challenges, if a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity. Maloney, 294 S.W.3d at 625. We have construed subsection (c) to require proof of specific intent to meet at the time of the solicitation, and we hold that subsection (d)(2) refers only to the solicitor‘s intent post-solicitation. This construction of the statute eliminates any supposed conflict between subsection (c) and subsection (d)(2). See Ex parte Zavala, 421 S.W.3d at 232 (concluding that Penal Code sections 33.021(c) and (d)(2) are not contradictory and rejecting vagueness challenge based on asserted contradiction). Accordingly, we hold that
We overrule Wheeler‘s second issue.
Commerce Clause Challenge
In his third issue, Wheeler contends that section 33.021 violates the Dormant Commerce Clause of the United States Constitution by “unduly burden[ing] interstate commerce by attempting to place regulations on the entirety of the internet.” See
The only authority Wheeler cites in support is American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997) (striking down statute criminalizing use of a computer to communicate sexually explicit materials to minors). In Pataki, the defendants “[did] not challenge the sections of the statute that ... prohibit adults from luring children into sexual contact by communicating with them via the internet.” Id. at 179. Rather, the law challenged in Pataki was aimed at limiting exposure by minors to harmful content. It was that portion of the law which was ultimately found to impose a burden on interstate commerce that was disproportionate to the local benefits of regulation.
The Supreme Court of the United States established a balancing test to determine whether a burden on interstate commerce imposed by a regulation is excessive in relation to putative local benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852 (1960). If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike, 397 U.S. at 142, 90 S.Ct. 844.
Wheeler does not articulate, and we cannot discern, how section 33.021 differentiates between inter and intra state commerce. The statute is even-handed. Courts have concluded—and we agree—that protecting children from sexual predators is a legitimate local public interest. See, e.g., Ex parte Lo, 424 S.W.3d at 21 (“There is no question that the State has a right—indeed a solemn duty—to protect young children from the harm that would be inflicted upon them by sexual predators.“). And we also conclude that the effect of the statute on interstate commerce is only incidental in relation to the local benefit of the statute. Accordingly, we reject Wheeler‘s challenge to section 33.021 under the Dormant Commerce Clause. Huron Portland Cement, 362 U.S. at 443, 80 S.Ct. 813 (evenhanded local regulation to effectuate a legitimate local public interest is valid unless unduly burdensome on interstate commerce).
We overrule Wheeler‘s third issue.
Conclusion
We affirm the trial court‘s ruling denying Wheeler‘s application for habeas corpus relief.
Rebeca Huddle
Justice