Opinion
No. 11-15-00201-CR
03-03-2016
JACKIE DAVID ALVAREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 49,111-A
MEMORANDUM OPINION
Jackie David Alvarez stands charged by indictment with the second-degree felony offense of online solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021(c), (f) (West Supp. 2015). Alvarez filed a pretrial application for writ of habeas corpus in which he sought to obtain habeas corpus relief from the trial court based upon his contentions that the statute under which he was indicted was unconstitutional. The trial court held a hearing and denied the relief requested by Alvarez. We affirm.
We note that part of Section 33.021 was amended as of September 1, 2015, but that the former version of that section remains in effect and applies in this case because the alleged offenses were committed prior to the amendment's effective date. See Act of May 5, 2015, 84th Leg., R.S., ch. 61, 2015 Tex. Sess. Law Serv. 1035, 1035-36 (West) (to be codified as an amendment to TEX. PENAL CODE ANN. § 33.021(a)(1), (b), (d), (e)). We note also that Section 33.021(c), which sets out the offense with which Alvarez was charged, was not amended in 2015.
Alvarez presents three points of error in this appeal. In all three points, he challenges the constitutionality of "what remains" of the statute under which he was indicted, Section 33.021 of the Penal Code. Section 33.021 criminalizes the online solicitation of a minor and has been held to be unconstitutionally overbroad in part. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (holding that Section 33.021(b) was overbroad because it prohibited a wide array of constitutionally protected speech and was not drawn narrowly enough to achieve only the legitimate objective of protecting children from sexual abuse). Alvarez specifically challenges the constitutionality of Section 33.021(c) and former Section 33.021(d)(2) and (d)(3) on the grounds that these subsections are (1) overbroad—in violation of the First Amendment, (2) vague—in violation of the Fourteenth Amendment, and (3) unduly burdensome on interstate commerce—in violation of the Dormant Commerce Clause. See U.S. CONST. amends. I, XIV; art. I, § 8.
The indictment in this case reads in part as follows:
JACKIE DAVID ALVAREZ did then and there, with the intent that JOHN GRAHAM, an individual whom the defendant believed to be younger than fourteen (14) years of age, would engage in sexual intercourse or deviate sexual intercourse or sexual contact with the said JACKIE DAVID ALVAREZ, knowingly solicit by electronic mail or text message the said JOHN GRAHAM, to meet the said JACKIE DAVID ALVAREZ.
See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050.
A defendant may file a pretrial application for writ of habeas corpus in order to raise a facial challenge to the constitutionality of the statute under which the defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Lo, 424 S.W.3d at 14. When the constitutionality of a statute is attacked, a court usually must presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 15. With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute will succeed only if it is shown that the statute is unconstitutional in all of its applications. State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015).
However, when the statute restricts and punishes speech based on its content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d at 15. Instead, content-based regulations are presumptively invalid, and the State bears the burden to rebut that presumption. Id. A court must use strict scrutiny in its review of a content-based regulation. Thompson, 442 S.W.3d at 344-45; Lo, 424 S.W.3d at 15-16.
To determine which presumption applies, we must determine whether the applicable subsections of Section 33.021 regulate speech based upon the content of the speech. Section 33.021(c) provides:
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.PENAL § 33.021(c). At the time of the offense in this case, Section 33.021(d) provided that the following were not defenses to prosecution under subsection (c): (1) the meeting did not occur; (2) the actor did not intend for the meeting to occur; and (3) the actor was engaged in a fantasy at the time of the offense. Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050. The current version of Section 33.021(d) carries forward only one of the three former subparts: that the meeting did not occur. PENAL § 33.021(d). Alvarez urges that former subsections (d)(2) and (d)(3) "explicitly eliminate" the element of incitement found in Section 33.021(c) and that, when combined, these subsections regulate speech based upon its content and forbid "fantasy speech" that is protected by the First Amendment.
We disagree with Alvarez's contention that the relevant subsections of Section 33.021 regulate speech based upon its content. As noted by the Court of Criminal Appeals in Lo, "it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense" in Section 33.021(c). Lo, 424 S.W.3d at 16-17; see Ex parte Wheeler, No. 01-14-00868-CR, 2015 WL 5770850, at *3 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, pet. ref'd) (concluding that Section 33.021(c) "regulates conduct and unprotected speech"); Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *2-3 (Tex. App.—Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication) (concluding that Section 33.021(c) regulates conduct, not the content of speech alone), cert. denied, 135 S. Ct. 1557 (2015); see also Collins v. State, No. 11-14-00312-CR, 2015 WL 6768734, at *4 (Tex. App.—Eastland Nov. 5, 2015, no pet.) (concluding that another statute, insofar as it incorporated Section 33.021(c), regulated conduct). Additionally, former subsections (d)(2) and (d)(3) do not forbid or regulate fantasy speech; what is forbidden or regulated is the conduct of soliciting a minor to engage in an illegal sexual act.
Because we conclude that Section 33.021(c), even when combined with former subsections (d)(2) and (d)(3), regulates conduct, we must presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); see also Lo, 424 S.W.3d at 15. Alvarez has the burden to establish the unconstitutionality of the statute. See Rodriguez, 93 S.W.3d at 69.
A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, its sweeping coverage also proscribes speech or conduct that is protected by the First Amendment. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). Particularly where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). When a statute is not substantially overbroad, whatever overbreadth may exist should be cured through case-by-case analysis. Id. at 615-16. A statute will not be invalidated for overbreadth merely because some unconstitutional applications are conceivable. Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
The First Court of Appeals addressed and rejected overbreadth challenges to Section 33.021(c) and (d). Wheeler, 2015 WL 5770850, at *3-4; Maloney v. State, 294 S.W.3d 613, 626-28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). Likewise, in Collins, we addressed and rejected an overbreadth challenge to a different statute insofar as it incorporated Section 33.021(c). 2015 WL 6768734, at *5. Furthermore, the Court of Criminal Appeals intimated in Lo that Section 33.021(c), in "contrast" to Section 33.021(b), was constitutional. Lo, 424 S.W.3d at 17. The Lo court also pointed out that the First Court of Appeals had upheld the constitutionality of Section 33.021(c). Id. (citing Maloney, 294 S.W.3d at 625-29). The overbreadth of the challenged subsections are not substantial when judged in relation to the statute's plainly legitimate sweep, which is the legitimate goal of the "prevention of sexual exploitation and abuse of children . . . a government objective of surpassing importance." Maloney, 294 S.W.3d at 628 (citing New York v. Ferber, 458 U.S. 747, 773 (1982); Broadrick, 413 U.S. at 615).
Following the rationale of the courts in Lo, Wheeler, and Maloney and of our court in Collins, we hold that Section 33.021(c) and former Section 33.021(d) are not unconstitutionally overbroad. Alvarez failed to meet his burden of showing otherwise. Accordingly, the trial court did not err in denying Alvarez's application for habeas corpus on overbreadth grounds. Alvarez's first point of error is overruled.
In his second point of error, Alvarez contends that what remains of Section 33.021 is unconstitutionally vague in violation of the Fourteenth Amendment. A statute will be invalidated on vagueness grounds if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). The applicable version of subsections (c) and (d), even as combined, are not unconstitutionally vague and do not forbid solicitations made with no intent to result in a meeting. See Wheeler, 2015 WL 5770850, at *4-5 (rejecting similar argument, determining that Section 33.021 is not unconstitutionally vague, and holding that Section 33.021(d) refers only to the solicitor's intent post-solicitation); Ex parte Zavala, 421 S.W.3d 227, 231-32 (Tex. App.—San Antonio 2013, pet. ref'd) (same). Although former subsections (d)(2) and (d)(3) may not have been models of clarity, we are of the opinion that a person of ordinary intelligence would have known what conduct was prohibited by those provisions. Moreover, Alvarez has not met his burden to show that what remains of Section 33.021 is unconstitutional in all of its applications and could never be constitutionally applied to any defendant under any circumstance. See Johnson, 475 S.W.3d at 864; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). We overrule Alvarez's second point of error.
In his third point, Alvarez argues that what remains of Section 33.021 violates the Dormant Commerce Clause because "it unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere, to forbid online ageplay everywhere." Alvarez asserts that the "negative aspect" of the Commerce Clause prohibits state legislation that unduly restricts interstate commerce. The arguments asserted by Alvarez were specifically rejected by this court in Collins and by our sister court in Wheeler. In Collins, we held that "Section 33.021(c) is an 'even-handed' statute designed for the legitimate purpose of protecting children from sexual predators and that 'the effect of the statute on interstate commerce is only incidental in relation to the local benefit of the statute.'" Collins, 2015 WL 6768734, at *6 (quoting Wheeler, 2015 WL 5770850, at *5). We continue to adhere to that holding and, therefore, reject Alvarez's challenge under the Dormant Commerce Clause to "what remains" of Section 33.021. Alvarez's third point of error is overruled.
We affirm the order of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE March 3, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.