Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/5/2015 4:19:04 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00868-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/5/2015 4:19:04 PM CHRISTOPHER PRINE CLERK
No. 01-14-00868-CR
ln the Court Appeals for First District Texas At Houston
Cause No. 2014V-0074 ln 155th District Court Of Austin County, Texas EX PARTE STUART WHEELER APPELLEE'S BRIEF
Brandy N. Robinson One East Main Street Bellville, Texas 77418 (e7e) 865-5e33 Texas Bar No. ORAL ARGUMENT REQUESTED *2
STATEMENT REGARDING ORAL ARGUMENT Appellee requests oral argument pursuant to Rule of Appellate Procedure 39.7.
IDENTITY OF PARTIES AND COUNSEL Appellee: State of Texas
Trial and Appellate Counsel for State:
Brandy N. Robinson
Assistant Criminal District Attorney
One East Main Street, 3'd Floor
Bellville, Texas 77418
(e7e) 865-5933
Trial Appe!late Counsel for Applicant:
Mark W. Bennett
917 Franklin St., 4th FIoor
Houston, TX77002
Phil Baker
P.O. Box
La Grange, TX 78945
(e7e) e68-3783
Trial Judge: Honorable Jeff Steinhauser
J *4 TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT 2
IDENTITY OF PARTIES AND COUNSEL 3 4
TABLE OF CONTENTS
INDEX OF AUTHORITIES 6
STATEMENT OF THE CASE 9
ISSUE PRESENTED 10 trial court properly denied habeas relief because the
section of Texas Penal Code S 33.021 by which Applicant charged is
constitutional.
STATEMENT OF THE FACTS 11
SUMMARY OF THE ARGUMENT 12
RESPONSE TO POINT OF ERROR ONE ......14 remaining subsections of Penal Code 33.021
should be upheld under rational basis standard review, they restrict
unprotected criminal conduct rather than constitutionally protected speech.
Moreover, the statute is narrowly tailored serve a compelling
governmental interest.
A. Strict Scrutiny Applies Laws Restricting Speech, Not Conduct
B. Subsection (b) Regulated Speech, but Subsection (c) Regulates Conduct
C. Subsection (c) Restricts Criminal Solicitation D. Subsection (d) Does Not Change Standard Review Alternatively, Any Unconstitutional Portions Subsection (d) Should Be Struck
E. Section (C) Survives Rational Basis Review *5 F. Texas Penal Code S 33.021 ls Not Overly Broad 1. The Statute is Narrowly Tailored
2. The Statute Serues a Compelling Governmental lnterest
RESPONSE TO POINT OF ERROR TWO . ... .35
The remainder of Texas Penal Code S 33.021 survives any vagueness challenge, as plain meaning word "solicitation" in the
statute facially clear.
A. Applicant Cannot Raise New Vagueness Ground on Appea!
B. Subsections (c) and (d) Are Not lmpermissibly Vague
RESPONSE TO POINT OF ERROR THREE... 40 Dormant Commerce Clause does not apply $ 33.021.
Alternatively, statute survives Dormant Commerce Clause
balancing test, any potential burden on commerce does not outweigh legitimate local interest preventing solicitation minors illegal
sexual acts.
A. Dormant Commerce Clause Does Not Apply B. Subsection (c) Does Not Restrict Commerce C. Penal Code 33.021 Passes Pike Test
PRAYER .44
CERTIFICATES OF COMPLIANCE AND SERVICE 45
Cases
Aaron y. Sfafe, 161 Tex. Crim. 156 (Tex. Crim. App. 1954)---- ----38
Am. Libran'es Assh v. Pataki,969 F. Supp. 160 (S.D.N.Y. 1gg7) -----------40
Broadrick v. Oklahoma,413 U.S. 601 (1973) 15, 29
Bynum y. Sfafe, 767 S.W.2d 769 (Tex. Crim. App. 1989) ----------28
Cameron v. Johnson, 390 U.S. 611 (1968)- ------36
Cardenas v. Sfafe, 640 S.W.2d 291 (Tex. Crim. App. 1982)---- ---24
Cerda v. State,750 S.W.2d 925 (Tex. App.-Corpus Christi 1988) --------38
Chaplinsky v.Sfafe New Hampshire, 315 U.S. 568 (1942) -----20
Colten v. Kentucky, 407 U.S. 104 (1972) ---------36
Connally v. Gen. Const. Co.,269 U.S. 385 (1926) --------36
Duncantell v. State,230 S.W.3d 835 (Tex. App.-Houston [14th Dist.]
2007)---- ----26 Ely v. Sfafe, 582 S.W.2d 416 (Tex. Crim. App. 1979) 12, 14,26
Ex Parte Lo,424 S.W.3d 10 (Tex. Crim. App. 2013)---- -----passim
Ex Parte Thompson,442 S.W.3d 325 (Tex. Crim. App. 2014) ----21
Ex Parte Zavala,421 S.W.3d227 (Tex. App.-San Antonio2013, pet.
ref d. )-- -----Passim Frieling v. State,67 S.W.3d 462, (Tex. App.-Austin 2002) --20,34
Grayned v. City of Rockford, 408 U.S. 104 (1972) 36
ln re Shaw,204 S.W.3d 9 (Tex. App.-Texarkana 2006, pet. refd.) ""--27
Maloney v. Sfafe,294 S.W.3d 613 (Tex. App.--Houston [1't Dist.] 2009, pet.
refd. )--"-- ---passim Mattias v. Sfafe, 731 S.W.2d 936 (Tex. Crim. App. 1987) ----------38
McBumey v. Young, S. Ct. 1709 (2013)--------- -------43
Members of City Council of City of Los Angeles v. Taxpayers Vincent,
466 U.S. 789 (1984) 26 New York v. Ferber,4s8 U.S. 747 (1982) ----20, 27 , 33, 34
Oregon Waste Sys., lnc. v. Dep't Envtl. Quality State Or., 511 U.S.
e3 (1ee4) 41 People v. Smith, 347 lll. App. 3d 446 (lll. App. Ct. 2004) -------------27, 35
Pike v. Bruce Church, |nc.,397 U.S. 137 (1970)----- ------41
Rath v. Sfafe, 33 S.W. 142 (Tex. Crim. App. 1895) 38
Rodiguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) 14
Rothstein v. State,267 S.W.3d 366 (Tex. App.-Houston [14th Dist.] 2008,
pet. refd.)---"-- ----36 Sanchez v. Sfafe, 995 S.W.2d 677 (Tex. Crim. App. 1999) 20 ---15,27
Sanfrkos v. State,836 S.W.2d 631 (Tex. Crim. App. 1992)
Scoff v. Sfafe, 36 S.W.3d240 (Tex. App.-Houston [1"t Dist.] 2001, pet.
refd) 31 Sfafe v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013)--- -----27
Tarlton v. Sfafe, 93 S.W.3d 168 (Tex. App.-Houston [14tn Dist.] 2002, pet.
refd 26 Tisdale v. Sfafe, 640 S.W.2d 409 (Tex. App.-San Antonio 1982, pet.
refd 31 United Sfafes v. Ranso n, 942 F .2d 775 (10th Cir. 1991 31
United Sfafes v. Salerno,481 U.S. 739 (1987) --15
United Sfafes v. Williams, 553 U.S. 285 (2008) 19,28
Valdez v. Valdez, S.W.2d 725 (Tex.App.-Houston [1st Dist.] 1996, no
pet.) --------- 36 Vill. of Hoffman Esfafes v. Flipside, Hoffman Estates, \nc.,455 U.S. 489 28
(1e82 *8 wren v. Texas Employment com'n,915 s.w.2d 50G (Tex. App.--Houston
[14tn Dist.] 1995, no pet.) -----36 Statutes
Tex. Pen. Code Ann. S 15.03 (c) (Vernon2012)-------- ---38
Tex. Pen. Code Ann. S 21.02 (Vernon) ------------21
Tex. Pen. Code Ann. S 21.11 (Vernon)---- -----21
Tex. Pen. Code Ann. S 22.011 (Vernon)----- -------------21
Tex. Pen. Code Ann. 522.021 (Vernon) ----------21
Tex. Pen. Code Ann. S 33.021(aX1)(A) (Vernon2012) 30
Tex. Pen. Code Ann. S 33.021(b) (Vernon2012)-------- --16
Tex. Pen. Code Ann. S 33.021(c) (Vernon2012)-------- -----passim
Tex. Pen. Code Ann. S 33.021(d) (Vernon2012)-------- --------22,33
Tex. Pen. Code Ann. S 43.02 (Vernon 2012) ----23
Texas Penal Code S 33.021 (Vernon 2012)---- -----passim
Texas Penal Code 43.02(a) (Vernon 2012)--------- ------23
Rules
Tex. R. App. P. 9.4(i)(1) 45
Tex. R.App. P. 33.1 36
Tex. R. App. P. 33.1 (a) 36
STATEMENT OF THE CA$E The State indicted Stuart Wheeler, hereinafter referred as "Applicant," under subsection (c) Penal Code 33.021 Online
Solicitation of Minor in Cause No. 2013R-0031. (CR 14). defense
filed its writ of habeas corpus. (CR 3). trial court signed an order
denying habeas relief. (CR 57). Applicant then filed notice of appeal. (CR
s6).
ISSUE PRESENTED trial court properly denied habeas relief because section of
Texas Penal Code 33.021 by which Applicant charged is constitutional.
Applicant challenges pure facia! constitutionality of statute, not the constitutionality applied. Therefore, a statement facts is
inapplicable.
ll *12 SUMMARY OF THE ARGUMENT Texas Court of Criminal Appeals, Ex Parte Lo,424 S.W.3d (Tex. Crim. App. 2013), examined Texas' Online Solicitation of Minor
statute, Penal Code S 33.021. Court held subsection (b) of 33.021 was unconstitutionally overbroad. Ex Parte Lo, at 14. However,
the Court expressly stated that the remaining subsections were
constitutional. Ex Parte Lo, at 16-17. Under rational basis standard of
review, Applicant has burden show present statute has no
reasonable construction which would render it constitutional. Ely v. Sfafe, S.W.2d 416,419 (Tex. Crim. App. 1979). As the Texas Court of
Criminal Appeals has already found a reasonable construction which would
render the statute constitutional, the statute must be upheld.
Further, Texas courts have specifically rejected Applicant's arguments of overbreadth and vagueness the remainder $ 33.021.
Ex parte Lo,424 S.W.3d 10; Maloneyv. Sfafe,294 S.W.3d 613,626-629
(Tex. App.-Houston [1st Dist.] 2009, pet. refd.); ex Parte Zavala,421
S.W.3d 227,231-232 (Tex. App.-San Antonio2013, pet. ref'd.). These
courts consistently held remainder the statute serves compelling
interest protecting children while being narrowly tailored to target only
predators using internet solicit children illegal sex.
t2 *13 Finally, Applicant has offered no legal basis applying Dormant Commerce Clause to present statute. However, if Commerce
Clause applies, statute should be upheld because burden the
statute places on commerce, if any, does not outweigh legitimate local
interest in protecting children from sexual solicitation.
l3 remaining subsections of Penal Code 33.021 should be
upheld under a rational basis standard of review, as they restrict
unprotected criminal conduct rather than constitutionally protected speech.
Moreover, the statute is narrowly tailored serve a compelling
governmental interest.
Standard of Review
A court reviewing constitutionality of a statute must first determine what standard review applies. The standard review dictates who
holds burden proof how high that burden rests. party
challenging statut*here, Applicant-normally carries burden to
establish unconstitutionality because statutes are typically presumed valid.
Ex parte Lo, 424 S.W.3d at 14-15i Maloney, 294 S.W.3d at (citing Rodriguezv. Sfafe,93 S.W.3d 60,69 (Tex. Crim. App. 2002).
Generally, if there reasonable construction renders statute
constitutional, the court must uphold it. Ely v. Sfafe, 582 S.W.2d 416, 419
(Tex. Crim. App. 1979).
Furthermore, Applicant must meet a higher burden, he is challenging the facial constitutionality of (c) and (d) of $ 33.021, rather than
t4
its constitutionality applied. An applicant challenging the validity of a
statute on its face must show statute is unconstitutional every
application. United Sfafes v. Salerno,481 U.S. 739,745 (1987). To meet
this heavy burden, Applicant must show that no set of circumstances exist
under which the statute is valid . Santikos v. Sfafe, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992).
A. Strict Scrutiny Applies Laws Restricting Speech, Not Conduct
A "strict scrutiny" standard of review is inappropriate here because it applies to statutes that regulate speech solely based on content. lf the
statutory provision regulates speech solely due content, then the statute
will be "presumed invalid," and State must rebut that presumption. Ex
Parte Lo, 424 S.W.3d at 15. By contrast, if statute punishes conduct
instead speech, the courts use a "rational basis" standard of review.
This means the court must review the statute de novo with presumption law valid, sole concern is whether the statute has a
rational relationship to a legitimate state purpose. Ex Parte Lo, 424 S.W.3d
at 14-15. See Broadrick v. Oklahoma,413 U.S. 601, (1973).
l5 *16 B. Subsection (b) Regulated Speech, but Subsection (c) Regulates Conduct Applicant argues subsection (c) regulates speech and must be examined under strict scrutiny standard; however, the Court of
Criminal Appeals clearly stated subsection (c) regulates conduct instead of
speech. Ex Parte Lo, S.W.3d at 15-16. Applicant tries to categorize
both the constitutional unconstitutional subsections of $ 33.021
together and claims they both regulate constitutionally protected speech.
However, when Court examined S 33.021in Ex Parte Lo, Court
made an adamant distinction between subsection (b), which
unconstitutionally sought regulate speech based solely on content, and
subsection (c), which constitutionally sought regulate criminal conduct.
Ex Parte Lo, 424 S.W.3d at 15-16. plain text statute demonstrates the distinction between
speech and conduct. Subsection (b) prohibits communicating a sexually
explicit manner with a minor or distributing sexually explicit material a
minor. Tex. Pen. Code Ann. 33.021(b) (Vernon2012). content of
the communication, rather than purpose for which it was done, was key.
As Subsection (b) banned communication and distribution of
communicative material based solely on its sexually explicit nature, it
t6
restricted speech based on content. Subsection (c) instead prohibited
using language to commit criminal conduct of solicitation. Subsection
(c) prohibits a person who knowingly solicits a minor to meet another
person with intent that the minor will engage sexual contact, sexua!
intercourse, or deviate sexual intercourse. Tex. Pen. Code Ann. $
33.021(c) (Vernon2012). This subsection seeks regulate criminal
act soliciting minor sex, regardless whether language used to
do so sexually explicit.
The Court in lo found subsection (bFthe "sexually explicit com m u n ication" su bsection-reg u ! ated constitutiona I ly protected speech
and did not survive strict scrutiny. Under a strict scrutiny standard, the
State must prove that the statute is necessary to serve a compelling state
interest and that the statute is narrowly drawn use least restrictive
means promote that interest. Ex Parte Lo,424 S.W.3d at 19. Court
found subsection (b) unconstitutional, stating, "The statute bars explicit
descriptions sexual acts, but it also bars any electronic communication or
distribution of material "relates to" sexual conduct. That bar would
encompass many modern movies, television shows, and "young adult"
books, as we!! as outright obscenity, materia! harmful to a minor, child
pornography." Ex Parte Lo,424 S.W.3d at 17-20. Court found that
t7
while protecting children from sexual exploitation is a competling state
interest, subsection (b)'s prohibition on communication prohibited
substantial innocent speech well, and thus, was not narrowly tailored to
promote that interest.
C. Subsection (c) Restricts Criminal Solicitation Court of Criminal Appeals distinguished subsection (cF
the "solicitation" subsection-from (b) by stating it properly prohibits the
conduct of soliciting a child for illegal activity. Ex Parte Lo, S.W.3d at
16. Applicant essentially claims that since both subsections can be
violated by using words, they both must be "speech" for the purposes of a
First Amendment analysis. However, Court soundly rejected that
reasoning, stating, "Thus, it is the conduct requesting a minor to engage
in illegal sexual acts gravamen offense." /d. The
solicitation law does not regulate nature or type of speech a defendant
uses communicate with minor; rather, law prohibits defendants
from attempting procure a child sex through the internet, no matter
the content of language used. Statutes seeking regulate conduct fall
under the "rational basis" standard.
Furthermore, criminal solicitation falls into a category of speech outside realm First Amendment constitutional protection. Applicant
l8
argues that the Court should bypass the strict scrutiny standard altogether
and solely apply a categorica! approach to determine constitutionality of the
statute. lf the court were do so, the statute would still stand because
criminal solicitation has long fallen outside the hallows of constitutionally
protected speech. Court of Criminal Appeals, referring to
subsection (c) stated, "Such solicitation statutes exist in virtually all states
and have been routinely upheld as constitutional because "offers engage illega! transactions [such sexual assault of minor] are categorically
excluded from First Amendment protection." Ex parte Lo, S.W.3d at
16; citing United Sfafes v. Williams, 553 U.S. 285,297 (2008). United States Supreme Court has traditionally held that certain
types of speech are categorically unprotected by the First Amendment. ln
Chaplinsky v. Sfafe of New HampshtTe, Court held, "...it well
understood that right free speech is not absolute at all times and
under all circumstances. There are certain well-defined and narrowly
limited classes of speech, prevention and punishment which have
never been thought to raise any Constitutional problem. These include the
lewd and obscene, profane, libelous, and insulting or'fighting'
words-those which by their very utterance inflict injury or tend incite an
immediate breach the peace. lt has been well observed such
t9
utterances are no essential part of any exposition ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by social interest in order and
morality." Chaplinsky v. Sfafe of New Hampshire,315 U.S. 568, 571-572
(1942). Essentially, words that are used to incite criminal acts, such as
sol icitation, are trad itional ly u n protected. United States Supreme Court expounded on how this might
appty crimes against children when it reviewed an anti-pornography
statute New York v. Ferber. Court stated, "When definable class of
material, such as that covered by 263.15, bears so heavily and
pervasively on welfare of children engaged in its production, we think balance of competing interests clearly struck and it is permissible consider these materials as without protection First
Amendment." (Emphasis added). New Yorkv. Ferber,458 U.S. 747,763' (1982). Clearly, certain types of speech, particularly expression used
to facilitate crimes against children, fall into a category unprotected by the
United States Constitution.
The Texas courts, too, have historically found certain types of speech unprotected. Solicitation prostitution, bribery, extortion have all been
found be speech without constitutional protection, they constitute
criminal conduct. See Fn'eling v. Sfafe, G7 S.W.3d 462, (Tex. App.-Austin
2002, pet. ref d .); sanchez v. sfafe, gg5 s.w .2d o7T ,688 (Tex. crim. App.
1999). ln Ex Pafte Thompson,442 S.W.3d 325, 338 (Tex. Crim. App.
2014), the Texas Court Criminal Appeals explained the basic reasoning
behind what merits constitutional protection versus what does not, stating,
"When the intent do something that, if accomplished, would be
unlawful and outside First Amendment protection, such as intent to
threaten or intimidate, such an intent might help to eliminate First
Amendment concerns." Penal Code S 33.021 (c) specifically
requires the defendant have "the intent that minor will engage in sexual
contact." Tex. Pen. Code Ann. 33.021(c) (Vernon2012). Under Texas
Iaw, it is unlawfu! for a minor engage in sexua! conduct with an adult.
Tex. Pen. Code Ann. SS 21 .02, 21.11,22.011, 22.021 (Vernon). Therefore, unlawful intent required by statute eliminates First Amendment
protection concerns the Applicant attempts raise.
D. Subsection (d) Does Not Change the Standard Review Subsection (d)'s addendums, when read in context with subsection (c), do not change applicable standard review. Applicant argues that
subsection (c) does not criminalize solicitation when read conjunction
with subsection (d). Subsection (d)(1) states it is not a defense if a
2t
meeting did not occur, subsection (d)(2) states that it is not a defense if the
actor did not intend for a meeting occur, and subsection (dX3) states it is
not a defense if the actor is engaging in fantasy at the time of the offense.
Tex. Pen. Code Ann. S 33.021(d) (Vernon 2012). The court in Zavala
directly rejected the claim any of these three subsections significantly
altered subsection (c), but subsection (dX3) wi!! be discussed in greater
depth during the State's analysis on overbreadth. Regarding subsections
(dX1) and (dX2), the Zavala court found that the crime under subsection (c) committed and completed at the time of the actual internet solicitation;
therefore, when read context, subsections (d)(1) and (dX2) apply a
defendant's conduct and mental state after the offense was committed, not
at the time the solicitation. Zavala,421 S.W.3d at 232.
By examining legislative history, the Zavala court reasoned that rather than negating intent requirement subsection (c), subsections
(dX1) (dX2) merely prevent defendant from using his intent and
actions after the crime as defense. The statute explicitly states that
subsection (dX3) applies to mental state during commission. Tex.
Pen. Code Ann. 33.021(d) (Vernon2012). This contrasts with (d)(1) and
(dX2). A plain reading subsection (dX1) shows it applies whether a
meeting actually occurred after solicitation took place. /d As the
legislature chose not to apply the same at-thetime-of-the-offense language
to (dX2) that it applied to (dX3), (dX2) instead can be read along with (d)(1)
to apply to what occurs after the elements the offense have already been
completed. Therefore, subsection (dX2) does nothing to alter or negate
subsection (c)'s intent requirement.
Subsection (c), along with subsection (d), can best be analogized to the Iaw against solicitation for prostitution. The Iaw against prostitution,
Texas Penal Code S 43.02(a), reads, in part, that a person commits a crime
when he or she knowingly, "offers engage, agrees to engage, or
engages in sexual conduct fee" or knowingly "solicits another in a
public place engage with the person in sexual conduct for hire." Tex.
Pen. Code Ann. S 43.02 (Vernon 2012). Similarly, subsection (c) of the
online solicitation statute requires a defendant knowingly make an offer,
or solicitation, to a minor to engage in sexual conduct. Tex. Pen. Code
Ann. 33.021(c) (Vernon 2012). Under prostitution statutue, State
could either charge a defendant offered, agreed, or solicited illega!
sexual conduct, or State could charge the defendant actually engaged
in the sexual conduct. Whether State charged defendant with
solicitation or with actually engaging in prostitution created an enormous
difference the State's burden proof.
ln Cardenas v. Sfafe, the Texas Court Criminal Appeals discussed this crucial distinction. The Court explained, "The information reflects that
appellant was charged with "knowingly offer and agree" to engage in sexual
conduct, to-wit: sexual contact-a type of sexual conduct. intent that
must accompany future sexual contact need not accompany the offer or
agreement to engage in sexual conduct." Cardenas v. Sfafe,640 S.W.2d
291,292 (Tex. Crim. App. 1982). The Court elaborated, "lf appellant had
been charged with engaging in sexual contact instead of
with offering or agreeing to engage in sexual contact, Victory, supra, would
be controlling because "with intent to arouse or gratify the sexual desire of'
some person would be an accompanying mental state to the act alleged."
ln Cardenas, then, the State merely had prove the mens rea necessary make the offer, and the State did not have prove the elements, and
mens rea, of actually committing the sexual act.
Subsections (d)(1) (dX2) essentially codify this same concept as it applies to the Online Solicitation statute. State can charge a
defendant with Online Solicitation under 33.021, or, if defendant
engaged actual illegal sexual contact, State could charge the
defendant under sections penal code covering acts committed. lf State charged defendant with engaging in actual sexual abuse, the
State would have to prove up the requisite mens rea for said abuse under
that statute. On the other hand, if the defendant is solely charged with
solicitation, subsections (dX1) and (dX2) put a defendant on notice that the
State will not have to prove anything at all regarding the defendant's intent
or conduct after the solicitation has occurred; rather the State will meet its
burden merely by proving defendant intended to engage in the
solicitation, regardless what happened after the fact.
Alternatively, Any Unconstitutional Portions of Subsection (d) Should Be Struck
lf the court were find any portion of subsection (d) could not be read consistently with subsection (c), then legislative intent is best served
by upholding constitutionality of subsection (c) and striking out any
potentially inconsistent subsections. Iegislative intent behind S 33.021
was permit law enforcement officers find and catch sexual predators
before predator makes actual contact with, and harms, a
child. See Criminal Justice Comm., Senate Research Ctr., Bill Analysis,
Tex. H.B.2228,79th Leg., R.S. (July 27,2005). The Texas Court of
Criminal Appeals addressed 33.021, saying, "Looking at present
statute, compelling interest protecting children from sexual predators well served by solicitation-of-a-child prohibition subsection (c)." Ex
Parte Lo,424 S.W.3d at23. Should any impermissible conflict be found,
the court should uphold subsection (c), which properly serves the
!egislative interest.
Arouments and Authorities
E. Section (C) Survives Rational Basis Review Subsection (c) $ 33.021 survives constitutional analysis under a Rational Basis standard of review. Subsection (c) prohibits conduct that
has no First Amendment free speech protection; therefore, the court must
analyze it de novo under a "rational basis" standard review presume statute is valid . Ex Parte Lo, 424 S.W.3d at 14; Maloney,294 S.W.3d
at 626. lf reasonable construction exists that renders statute
constitutional, the court must uphold it. Ely, 582 S.W.2d 419 Tarlton v.
Sfafe, 93 S.W.3d 168, (Tex.App.-Houston [14th Dist.] 2002, pet.
refd); Duncantell v. State,230 S.W.3d 835, 843 (Tex. App.-Houston [14th
Dist.l 2007, pet. refd).
The "rational basis" standard review places burden on the Applicant, not State. Applicant expresses concern that an adult
engaging in innocent roleplay could feasibly be targeted under law.
Brief for Appellant, at 5-6. However, "[T]he mere fact one can
conceive of some impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge." Members of City Council
of City of Los Angeles v. Taxpayers Vincent,466 U.S. 789,800 (1984). presumption of validity means that prevail, Applicant must prove that
subsection (c) could never be constitutionally applied any defendant
under any set facts or circumstances. Sfafe v. Rosseau, 396 S.W.3d
550, 557 (Tex. Crim. App. 2013); Santikos v. Sfafe, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992). Applicant provided no evidence or argument to effect.
Texas courts have already determined that subsection (c) has a rational relationship to a Iegitimate state purpose. As our First Court of
Appeals stated, "The prevention of sexual exploitation and abuse of
children addressed by Texas online solicitation of a minor statute
constitutes government objective of surpassing importance." Maloney,
294 S.W.3d at 628; citing New York v. Ferber,458 U.S. 747,773 (1982); ln
re Shaw,204 S.W.3d 9, (Tex. App.-Texarkana 2006, pet.
ref'd.); People v. Smith,347 lll. App. 3d446 (lll. App. Ct. 2004). Court Crimina! Appeals, referring 33.021(c), stated, "Looking at the
present statute, the compelling interest protecting children from sexual
predators well served by solicitation-of-a-child prohibition in
subsection (c)." Ex Parte Lo,424 S.W.3d at23. Subsection (c), which
penatizes soliciting minors illegal sex acts, clearly has a rational
relationship to legitimate state purpose of protecting children from
sexual exploitation and abuse.
F. Texas Penal Code S 33.021 ls Not Overly Broad Subsection (c) of Penal Code 33.021 triumphs over any overbreadth argument. Our First Court Appeals has already upheld the
facial constitutionality of subsection (c) against First Amendment-based
overbreadth challenge, Court Criminal Appeals applauded the
reasoning. Maloney,294 S.W.3d at625-29; Ex Parte Lo,424 S.W.3d at
15-16. A statute is impermissibly overbroad if, addition prohibiting
acts that may be constitutionally prohibited, it includes speech or conduct
protected by First Amendment. Bynum v. Sfafe, 767 S.W .2d 769, 772
(Tex. Crim. App. 1989); see also Vill. of Hoffman Esfafes v. Flipside,
Hoffman Esfafes, lnc., U.S. 489 , 494 (1 982). As discussed above,
solicitation of another perform a crimina! act is not speech protected by First Amendment. Williams, 553 U.S., at297. As subsection (c) only
prohibits speech or conduct is unprotected by First Amendment, it
cannot run afoul overbreadth doctrine.
Moreover, as subsection (c) regulates conduct, not mere speech, Applicant must meet an even heavier burden prove the statute is
overbroad. As First Court Appeals pointed out, "When conduct and
not merely speech is involved, any overbreadth of a statute must "not only
be real, but substantial well, judged in relation to the statute's plainly
legitimate sweep." Broadrick,413 U.S. at 5; Maloney, 294 S.W.3d at
627. Applicant alleges subsection (c) criminalizes a substantial
amount of constitutionally protected speech by forbidding fantasies. Brief
for Appellant, at 11-12. However, this argument has been considered and
rejected by both First Fourth Courts Appeals
Subsection (c) is narrowly drawn regulate those who would use the internet to obtain minor victims for sexual misconduct. The "substantial
amount of protected speech" Applicant claims will be prohibited by the
current statute fantasy role-playing, or "ageplay." Brief Appellant, at
13. Maloney court examined this reasoning and rejected it. Maloney
succinctly stated, "More importantly, S 33.021 does not make it a criminal
offense simply to engage in fantasy, as appellant seems suggest.
Rather, S 33.021 unambiguously provides that a person is prohibited from
knowingly soliciting a minor over internet, or through other electronic
media, meet him or another person with intent that minor will
engage sexual contact, sexual intercourse, or deviate sexua! intercourse
with him or another person." Tex. Penal Code Ann. 33.021 (c); Maloney,
294 S.W.3d at 628-629. The statute does not criminalize act of fantasy
unless a defendant is engaging in fantasy while also intending to solicit a
minor sex.
1. Statufe is Narrowly Tailored First, statute's definition of "minor" is narrowly drawn to serve the State's interest. Applicant argues that statute defines "minor" too
broadly because it includes "an individua! who represents himself or herself
to be younger than years age." Tex. Pen. Code Ann.
533.021(aX1XA) (Vernon 2012). Applicant claims this would penalize
adults who are merely engaging in a mutual fantasy with other adults. Brief
for Appellant, at 13-15. However, a plain reading statute would not
criminalize two adults who agree that one them will pretend to be a minor
during their conversations. ln a truly innocent "ageplay" scenario, the
person solicited would first represent herself be an adult but then agree pretend be a minor. By contrast, an illegal solicitation, person
solicited has represented themselves as someone under age of
seventeen
The statute, written, prevents a defendant from relying on the defense even though minor represented herself as a child, he
thought she was older. reasoning behind this is analogous to the
reasoning behind strict liability laws regarding sexual abuse. ln Scoff v.
Sfafe, First Court of Appeals explained why statutory rape laws are
constitutional, stating, "The statute rationally furthers a legitimate
governmental interest. lt protects children from sexual abuse by placing the
risk mistake to a child's age on an older, more mature person who
chooses to engage sexual activity with one who may be young enough to
fall within the statute's purview." Scoff v. Sfafe, 36 S.W.3d240 (Tex.
App.-Houston [1"t Dist.] 2001, pet. ref'd.); citing United Sfafes v. Ranson,
942F.2d775,776-77 (10th Cir. 1991). Likewise, here, a defendant bears risk when soliciting a person who has clearly represented himself or
herself be younger than seventeen.
Next, the potential, if any, abuse the statute restrict innocent behavior remains exceptionally low. instant issue can be analogized
again to the law prohibiting solicitation of prostitution. ln Tisdale v.
Sfafe, San Antonio Court Appeals faced similar overbreadth
challenge to prostitution statute. There, the defendant listed five
separate innocent interactions which could theoretically be prosecuted
under Texas prostitution law. Tisdale v. State, 640 S.W.2d 409, (Tex. App.-San Antonio 1982, pet. refd.). court found it
persuasive that defendant was unable provide any cases
3l
demonstrating an actual abuse of the statute, and the court held it was
clearly possible to narrowly interpret the statute in order to protect innocent
interests. /d. Likewise, Applicant has failed provide any case-specific
examples of overreaching by the State prosecute harmless fantasy
between adults.
Finally, Subsection (d)(3), when read in proper context with subsection (c), does not unnecessarily regulate pure fantasy behavior. The
Fourth Court of Appeals in Zavala found Applicant's "fantasy" argument
unpersuasive. Whether or not "ageplay" is prevalent is irrelevant, the
statute does not criminalize adults seeking to sexually pretend with other
adults. Subsection (c) penalizes adults knowingly seeking children for
sexual activity. The defendant in Zavala attempted argue by
disallowing fantasy as a defense, the legislature had criminalized engaging fantasy. Ex Parte Zavala,421 S.W.3d at 231-232. Ihe Zavala court
responded, "The crime of soliciting a minor under 33.021(c) is committed,
and completed, at time of the request, i.e., the solicitation. The
requisite intent arises within conduct of soliciting minor, must
exist at time of prohibited conduct of solicitation." Ex Parte Zavala, S.W.3d at 232. That mens rea knowing solicitation minor must
exist at time the solicitation; if it does not, then the crime has not
been committed. Again, the fact that a defendant was also engaged in
fantasy at time solicitation will not excuse him. statute is
sufficiently limited target those who are actively seeking children for
sexual abuse.
As Maloney, Lo Zavala clearly held, subsection (c) is narrowly tailored protect children from sexual abuse, and subsection (d) merely
provides that an accused who has actively sought to solicit a child for sex
may not defend against charge by later arguing that he changed his
mind orwas just engaging a fantasy. Tex. Pen. Code Ann. 33.021(d)
(Vernon 2012); Maloney,294 S.W.3d at628-629; Ex Parte Lo,424 S.W.3d
at 16-17,21; Ex Parte Zavala,421 S.W.3d at 232. The FirstCourt of
Appeals concluded any slight potential for overbreadth $ 33.021 is
not prohibitive when judged in relation "to its plainly legitimate sweep."
Maloney,294 S.W.3d at628. A constitutional overbreadth challenge
cannot prevail.
2. The Statufe Seryes Compelling Governmental lnterest protective sweep of $ 33.021 (c) promotes a state interest that
far outweighs potential improper application. Applicant has
conceded that the online solicitation statute promotes a compelling state
interest. Brief forAppellant, at17. ln Neur Yorkv. Ferber, United
States Supreme Court explained statute which could prohibit
constitutionally protected speech or conduct can still be upheld when the
statute's legitimate reach dwarfs all potentially impermissible applications.
New York v. Ferber,458 U.S. 747 , 773-774 (1982).
The public interest in protecting children from being solicited online for sexual abuse is clearly high. The defendant in Frieling v. State argued
that the prostitution statute was overbroad because it swept innocent
conduct, such joking or merely pretending agree prostitution under
its umbrella prohibition. Frieling v. Sfafe, 67 S.W.3d 462, 473-474 (Tex.
App.-Austin 2002, pet. ref'd.). However, Frieling court found that the
public interest in restricting prostitution substantially outweighed the
defendant's overbreadth concerns. Likewise, Applicant argues that the
present statute fails because someone who merely pretends solicit
minors could be prosecuted under present statute. governmental
interest in protecting children from sexual abuse certainly equals, likely
far exceeds, the governmental interest in regulating prostitution.
Likewise, United States Supreme Court New York v. Ferber, stated mere potential impermissible application alone will not make
a statute facially invalid when the governmental interest high. Ferber, U.S. at773-74. Ferbercase examined whether New York's child
pornography statute was overbroad. The court noted that the statute could
hypothetically restrict innocent images such as medical and social texts;
however the court found that the interest of protecting children from abuse
completely dwarfed any potentially impermissible application. Ferber, 458
U.S. at 773.
ln People v. Smith, the lllinois Appellate Court, Third District, upheld a similar indecent solicitation of a child statute, rejecting the overbreadth
argument. Smith,347 lll. App. 3d 446. The Smifh court concluded that
while some misapplication the statute could potentially occur, the
legitimate goal statute-to prevent sexual exploitation and abuse of
children-far surpassed any potential unlaMul applications. /d. court
found situations where State may abuse statute try punish
innocent conduct would be exceedingly rare. /d. Likewise, Applicant here
has failed show that rare potentia! improper application outweighs
the substantial State interest involved. remainder of Penal Code 533.021 survives any
vagueness challenge, plain meaning word "solicitation" the
statute facially clear
A. Applicant Cannot Raise a New Vagueness Ground on Appeal
Texas Pena! Code S33.021(c) has survived past challenges for vagueness. Ex Parte Zavala,421 S.W.3d at 232; Maloney,294 S.W.3d at
628-629. To find a statute is unconstitutionally vague, the court must find
that men of common intelligence must necessarily guess at statute's
meaning . Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
See Grayned v. City of RocWord, 408 U.S. 104, 108-1 14, (1972); Colten
v. Kentucky, 407 U.S. 104, 110-1 11 (1972); Cameron v. Johnson, 390
U.S. 1,616 (1968). Applicant's sole argument in his brief to the trial
court was summary conclusion men of ordinary intelligence must
guess at meaning of the word "solicitation." Application for Writ of
Habeas Corpus Brief in Support, at 7-8.
Applicant now argues the entirety Penal Code $33.021 is vague due to Applicant's perceived inconsistencies in meanings of
subsection (c) and subsection (d). Brief for Appellant, at 18-20. Texas
Rule Appellate Procedure 33.1(a) requires Applicant to give grounds
for his complaint trial court with sufficient specificity make the trial
court aware the complaint order preserve his grounds appellate
review. Tex. R. App. P. 33.1 (Vernon). Applicant cannot now raise new
grounds for vagueness he did not raise at trial court level. Valdez
v. Valdez,930 S.W.2d725 (Tex. App.-Houston [1't Dist.] 1996, no pet.);
Wren v. Texas Employment Com'n,915 S.W.2d 506 (Tex. App.-Houston
114'n Dist.l 1995, no pet). Applicant's present objection must comport with
his former objection at trial in order be preserved review. Rothstein v.
Sfafe,267 S.W.3d (Tex. App.-Houston [14fi' Dist.] 2008, pet. refd.).
At trial, Applicant solely objected to plain meaning of one word. Now,
he objects multiple subsections on the ground that they cannot be read
consistently. This new objection was not preserved.
B. Subsections (c) and (d) Are Not lmpermissibly Vague Alternatively, Texas courts have addressed similar concerns before in other solicitation offenses and have had no trouble interpreting State's
burden. meaning of solicitation in Penal Code 533.021 does not
differ substantially from any of Texas's other solicitation offenses.
Applicant claims that the court's reasoning Zavala only illustrates the
vagueness within statute. Brief for Appellant, at 18-20. However,
Applicant fundamentally misinterprets the distinction made by Zavala
court-a distinction made frequently regarding solicitation crimes. The
defendant's actions intent after the solicitation occurred are irrelevant. State need only prove the defendant possessed the requisite mens rea
when the solicitation occurred.
ln all cases involve an offer to commit criminal activity, there are two mens reas potentially at issue: the mens rea necessary commit the
solicitation, and the mens rea commit the actual crime being solicited. State must prove the former, not the latter. For example, Texas courts
have held that the offense of bribery completed when the offer or
agreement is made, it is no defense that the action for which one was
bribed was never undertaken. Rath y. Sfafe, 33 S.W. 229 (Tex. Crim. App.
1895); Aaron v. Sfafe,275 S.W.2d 693,695 (Tex. Crim. App. 1955); Cerda
y. Sfafe,750 S.W.2d925,927 (Tex.App.-Corpus Christi 1988, pet. ref'd.).
Likewise, the Penal Code Statute for Criminal Solicitation states it is
no defense if the actor could not have actually committed the crime herself,
or if person she solicited was not criminally responsible for crime.
Tex. Pen. Code Ann. 15.03(c) (Vernon2012). ln both these examples, State must prove solicitation, or offer, but State is not required prove an additional mens rea or commission after the fact.
Texas courts have treated solicitation prostitution cases similarly. ln Maftias v. Sfafe ,731 S.W.2d 936, (Tex. Crim. App. 1987), Texas
Court of Criminal Appeals held that a person could be guilty knowingly
offering to engage in prostitution even if she does not possess the intent to
actually consummate the sexual conduct. The State must prove the
defendant knowingly offered to consummate, but the State need not prove
that the defendant actually intended to consummate the act after the
solicitation was complete. Likewise, subsections (c) and (d) of Penal
Code 33.021 can be read give a similar meaning. At the time the
solicitation, the defendant must knowingly solicit the minor with the intent the minor will engage in sexual conduct. However, it no defense if
there was no consummation or if the defendant lacked intent to
consummate after the solicitation occurred.
Previous attacks on subsections (c) (d) vagueness have failed. defendant in Maloney unsuccessfully argued that statute
was vague, claiming it could be read prohibit lawfu! fantasy as well as
true solicitation. The Maloney court stated that the solicitation portion of
533.021(c) was unambiguous. Maloney,294 S.W.3d aL628-629. Later, defendant Zavala argued that internal Ianguage within statute
left confusion intent required for solicitation. Ex Parte Zavala, 421
S.W.3d at231. Fourth Court Appeals found plain language
meaning of solicitation was sufficiently clear. Ex Parte Zavala,421 S.W.3d
at231-232. plain meaning of "solicitation" within 33.021 (c) survives
any challenge for vagueness.
ilr Rtr.qPoNstr To Po NT Otr FRI?OR TI.{Rtrtr Dormant Commerce CIause does not apply $ 33.021. Alternatively, the statute survives the Dormant Commerce Clause
balancing test, any potentia! burden on commerce does not outweigh
the legitimate local interest in preventing solicitation minors illegal
sexual acts.
A. The Dormant Gommerce Clause Does Not Apply Applicant has presented no law stating the Dormant Commerce Clause applies online solicitation of minor; fact, the case Applicant
cited as persuasive authority does not address the issue at all. The court in
American Libraries Assocration v. Pataki, specifically excluded issue of
soliciting or luring children on internet. The court plainly noted,
"[P]laintiffs do not challenge the sections statute that criminalize ...
and prohibit adults from luring children into sexual contact by
communicating with them via internet." Am. Libraries Assh v. Pataki, F. Supp. 160, 179 (S.D.N.Y. 1997). Contrary to Applicant's assertions, court never indicated dormant Commerce Clause should be
applied to statutes prohibiting solicitation minors on internet.
Texas Penal Code S 33.021 does not violate the dormant commerce Clause. Applicant claims statute violates the clause by attempting to
place regulations on all internet users. Brief Appellant, at20. However,
attempting regulate internet activity is not the proper legal test must
be applied a state statute.
To evaluate a state statute under dormant Commerce Clause, a court must first determine whether the statute facially discriminates against
interstate commerce. Oregon Waste Sys., lnc. v. Dep't of Envtl. Quality of
Sfafe Or., 511 U.S. 93, (1994). lf the statute treats commerce within
the state differently from commerce between states, then the statute is
deemed "virtually per se invalid." /d. !f it does not, the court must apply the
balancing test from Pike v. Bruce Church determine whether the local
benefits outweigh burdens on interstate commerce. Pike v. Bruce
Church, \nc.,397 U.S. 137, 142 (1970). Under the Pike test, the court must
determine if there legitimate local public interest and whether "the
burden imposed ... is clearly excessive in relation to putative local
benefits." /d.
B. Subsection (c) Does Not Restrict Commerce plain Ianguage of Penal Code S 33.021 does not address
commerce at all. Tex. Pen. Code Ann. 33.021 (Vernon 2012).
4l
Commerce is the exchange of goods and services on large scale
involving transportation between cities, states and nations. Black's Law
Dictionary (9th ed. 2009), available af Westlaw BLACKS. Appellant makes
no suggestion as how prohibiting solicitation of minors sex falls under
the heading of commerce. Even if the statute did touch the broadest
possible concept of commerce, Applicant has given no example of how
Texas Penal Code S 33.021 treats those using the internet within the state solicit children differently from those outside of the state. As the statute
does not treat commerce within the state differently than commerce
between the states, Pike test applies
C. Texas Penal Gode 33.021 Passes Pike Test The state in present case has not only a legitimate local public interest, but a compelling interest in protecting children from sexual
predators, Court Criminal Appeals has already held that
interest is well served by prohibition subsection (c). Ex Parte Lo, 424
S.W.3d at23. Further, there neither evidence nor argument from
Applicant that any purported burden on interstate commerce would be
clearly excessive balanced against Iocal benefits protecting the
children Texas from sexual abuse.
Finally, the Dormant commerce clause a ' judge-made" doctrine and Supreme Court Justice Clarence Thomas, in a concurring opinion,
noted of the so-called Dormant Commerce Clause it, "has no basis in
the text of the Constitution, makes little sense, has proved virtually
unworkable application, and, consequently, cannot serve basis for
striking down a state statute." McBurneyv. Young, 133 S. Ct. 1709, 1721
(2013).
IV. CONCLUSION Soliciting minors sexual abuse has historically fallen into a category wholly outside protections the First Amendment of the
Constitution. Texas Penal Code 33.021 (c) serves compelling state
interest protecting children from sexual abuse while being narrowly
drawn meet those needs. subsection is neither overbroad, nor
vague, and it is not prohibited by Dormant Commerce Clause. The
State moves court uphold constitutionality statute and
DENY Applicant any and all relief.
V. PRAYER Appellee respectfully prays this Honorable Court deny Applicant's application habeas relief. tuffi
Respectfully su bm itted, Brandy Robinson Texas Bar No. 24051688 Austin County Courthouse One East Main Street, 3'd Floor Bellville, 77418 (e7e) 865-5e33 *45 l, Brandy Robinson, hereby certify that compliance with Rule of Appellate Procedure 9.4(iX1), according Microsoft Word's word counting
function, this document contains contains 8,175 words.
Date: - binson
ra CERTIFICATE OF SERVICE l, Brandy Robinson, hereby certify true and correct copy the foregoing instrument has been served upon the Appellant by sending the
same through United States mail his attorney, Mark Bennett, via
email at mb@ivi3.com.
Date: 2-5_/5
Robinson