Case Information
*1 Affirmed and Opinion filed July 14, 2016.
In The
Fourteenth Court of Appeals NO. 14-16-00059-CR
EX PARTE TINA MARIE HARRINGTON On Appeal from the 248th District Court
Harris County, Texas Trial Court Cause No. 1489384 O P I N I O N
In this appeal from the denial of a pretrial writ of habeas corpus, we consider a facial challenge to the constitutionality of Section 32.51 of the Texas Penal Code. We conclude that the challenged statute, which was enacted to combat identity theft, is not unconstitutional on its face. We therefore affirm the trial court’s judgment denying habeas relief.
BACKGROUND
Appellant was indicted for engaging in organized criminal activity, based on a prediсate that she committed or conspired to commit an offense under Section *2 32.51. The indictment alleged that appellant obtained and possessed fifty or more items of identifying information, most of which consisted of the names and social security numbers of diffеrent individuals.
Appellant applied for a pretrial writ of habeas corpus, seeking to set aside her indictment because Section 32.51 is unconstitutional. Appellant asserted three reasons in the trial court for her requested relief. First, she argued that the stаtute is overbroad on its face because it restricts protected speech in violation of the First Amendment. Second, she argued that the statute is void for vagueness. And third, she argued that the statute is unconstitutional because it creates a thought crime.
The trial court denied relief. Appellant now reiterates her challenges in this court, although she presents her arguments in a slightly different order. Appellant also expands on her arguments in one respect, claiming that the statute is unconstitutional because it violates the Dormant Commerce Clause. We do not address the argument pertaining to the Dormant Commerce Clause because appellant raised it for the first time in this court, and it was not preserved for appellate review. Tex. R. App. P. 33.1.
STANDARD OF REVIEW
Normally, a trial court’s ruling on an application for writ of habeas corpus is
reviewed for an abuse of discretion.
See Ex parte Fassi
, 388 S.W.3d 881, 886
(Tex. App.—Houston [14th Dist.] 2012, no pet.). However, this case presents a
facial challenge to the constitutionality of a statute, which is a purely legal
questiоn.
See Ex parte Lo
,
OVERBREADTH
In most cases, a facial challenge to the constitutionality of a statute can
succeed only when the statute is shown to be unconstitutional in all of its
applications.
See State v. Rosseau
, 396 S.W.3d 550, 557–58 (Tex. Crim. App.
2013). And usually, the defendant does not have the sort of prudential standing to
challenge a statute on the ground that it may be unconstitutional when applied to
the conduct of others.
See State v. Johnson
,
A statute is overbroad if the statute sweeps within its coverage of proscribed
activities a substantial amount of speech or other conduct protected by the First
Amendment.
See Bynum v. State
,
The overbreadth doctrine arises out of a concern that protected speech will be chilled by regulation. Id. That concern becomes attenuated, however, as the regulated activity moves from pure speech towards noncommunicative conduct. “Rarely, if ever, will an overbreadth challenge succeed against а law or regulation that is not specifically addressed to speech or to conduct that is necessarily associated with speech (such as picketing or demonstrating).” Id.
A. Construction of the Statute.
The first step in an overbreadth analysis is to construe the challenged statute. Id. at 871. In material part, Section 32.51 provides as follows:
A person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without the other person’s consent.
Tex. Penal Code § 32.51(b)(1).
Sеveral words in this statute (or their grammatical variation) are defined in the Penal Code, and their statutory definitions track their common understanding. See id. § 1.07(a)(11) (consent); id. § 1.07(a)(25) (harm); id. § 1.07(a)(39) (possession); see also id. § 1.07(b) (“The definition of a term in this code applies to each grammatical variation of the term.”). The phrase “identifying information” is also defined statutorily. It means:
[I]nformation that alone or in conjunction with other information identifies a person, including a person’s:
(A) name and date of birth;
(B) unique biometric data, including the person’s fingerprint, voice print, or retina or iris image;
(C) unique electronic identification numbеr, address, routing code, or financial institution account number; (D) telecommunication identifying information or access device; and
(E) social security number or other government-issued identification number. § 32.51(a)(1).
Based on the statute’s plain language, we construe Section 32.51 as a
straightforward proscription against the improper possession or use of another
*5
person’s private identifying information. This construction honors the purpose of
the statute, which the Court of Criminal Appeals has said is “to prevent identity
theft.”
See Jones v. State
,
In
Horhn v. State
, the First Court of Appeals was called to decide the same
question presented here: whether Section 32.51 is overbroad on its face in violation
of the First Amendment.
See Horhn v. State
,
The First Court based its decision on
Scott v. State
,
An offense under Section 32.51 occurs only when a person obtains, pоssesses, transfers, or uses another person’s identifying information, without the other person’s consent, and “with the intent to harm or defraud” that other person. Tex. Penal Code § 32.51(b). The intent required of Section 32.51 is similar to the mens rea requirement of the harassment statute. Also like the harassment statute, Section 32.51 does not specifically require spoken words or other inherently communicative activity.
We agree with our sister court that
Scott
is instructive and that Section 32.51
does not implicate the First Amendment.
[1]
See Horhn
,
*7 Appellant responds that Horhn should not be followed because the First Court did not consider every context in which identifying information may be used. Appеllant conjures an example in which a speaker criticizes another person, either in oral or written form. Appellant contends that the speaker in this example would face criminal liability under Section 32.51 because the use of a “person’s name alone” qualifies as the use of identifying information.
Appellant’s legal premise is incorrect. In
Cortez v. State
, the Court of
Criminal Appeals held that “a person’s name alone is inadequate to constitute an
item of identifying information.”
See Cortez v. State
,
THOUGHT CRIME
Appellant’s next three arguments invoke the First Amendment, the Due Course of Law provision of the Texas Constitution, and the Cruel and Unusual Punishment provision of the Eighth Amendment to the United States Constitution. Each of the arguments focuses on the idea that Section 32.51 may be construed to punish thoughts. Appellant contends that thoughts qualify as the “possession” of information, which means that a person can be charged for merely thinking about another person, without that other person’s consent, and with the intent to harm or defraud that other person. If the statute is applied in this manner, appellant argues that there is no actus reus . Continuing with that premise, appellant contends that an offense without an actus reus violates the overbreadth doctrine of the First Amendment, as well as the other two constitutional provisions mentioned.
An offense must have an actus reus . See Ramirez-Memije v. State , 444 S.W.3d 624, 627 (Tex. Crim. App. 2014). Section 6.01 of the Texas Penal Code addresses this fundamental requirement. That statute provides that a person *8 commits an offense “only if he voluntarily engages in conduct, including an act, an omission, or possession.” Tex. Penal Code § 6.01(a). The statute then explains that possession qualifies as a voluntary act “if the possessor knowingly obtains or receives the thing possessed.” Id. § 6.01(b). Applying Section 6.01 to the current context, a person can only face criminal liability under Section 32.51 for possessing the identifying information of another if the person knowingly obtained or received that information without the other’s consent. See Ramirez-Memije , 444 S.W.3d at 628.
Appellant makes the following argument in her brief: If I know (i.e. possess) someone’s name (i.e. identifying information), I сommit no crime, but if I know someone’s name and intend to defraud or harm him, I commit a felony under Section 32.51: this is a thought crime—I may be punished for simply thinking about a crime, or for mere daydreams.
This argument muddles the distinction between the actus reus and the mens rea . Under Section 32.51, a person engages in proscribed activity (the actus reus ) if the persоn “obtains, possesses, transfers, or uses” an item of identifying information without the other person’s consent. See Tex. Penal Code § 32.51(b). “Thinking about a crime” does not fit the description of any of these proscribed activities. However, having a criminal thought could describe thе culpable mental state (the mens rea ) if the person engaged in a proscribed activity “with the intent to harm or defraud another.” Id. The thought itself would not be punishable, but the proscribed activity would be. And if the proscribed activity was the possession of identifying information, the act of possession would encompass the act of coming into possession of that information. § 6.01(b).
We conclude that Section 32.51 contains an actus reus requirement and does not proscribe mere thought crimes.
VAGUENESS
In her fifth point of error, appellant argues that Section 32.51 is void for vagueness. A statute is unconstitutionally vague if its prohibitions are so unclearly defined that a person of ordinary intelligence cаnnot understand what conduct is prohibited. See Martinez v. State , 323 S.W.3d 493, 507 (Tex. Crim. App. 2010). Appellant argues that Section 32.51 is vague because it incorporates an “all- encompassing harm standard.” Appellant refers to the statutory definition of “harm,” which means “anything reasonably regarded as loss, disadvantage, or injury.” Tex. Penal Code § 1.07(a)(25). She then applies this broad definition to the context of speech, arguing that a speaker may feel compelled to “steer far wider of the unlawful zone” by avoiding words that could be construed as harmful.
Apрellant’s vagueness argument seems to resemble a variation of her overbreadth challenge. But as we explained above, Section 32.51 targets conduct, not protected speech, and it is not overbroad in violation of the First Amendment.
To the extent that appellant argues that the statute is void for vagueness, her argument lacks merit. The word “harm” is defined under the Penal Code, and a person of ordinary intelligence can comprehend from that definition and from the language of Section 32.51 that the prohibited conduct is identity theft, which is not constitutionally protected. We conclude that the statute is not unconstitutionally vague.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).
Notes
[1] Because Section 32.51 does not implicate the First Amendment, we need not address appellant’s argument that the statute fails the strict scrutiny standard for content-based regulations.