Patrick A. Pirtle Justice

On Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2014-401 ,722; Honorable John J. McClendon III, Presiding

MEMORANDUM OPINION

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.

Following the denial of his motion to suppress, Appellant, Adrian Delacruz, entered into a plea bargain and was convicted by the trial court of online solicitation of a minor. He was sentenced to ten years, suspended in favor of ten years community supervision. With the consent of the trial court, he now appeals his conviction. By three issues, he challenges section 33.021(c) of the Texas Penal Code as being (1) overbroad in violation of the First Amendment to the United States Constitution, (2) unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution, and (3) unconstitutional because it violates Article I, section 8 of the United States Constitution, the Dormant Commerce Clause, by unduly burdening interstate commerce. Appellant does not challenge the constitutionality of the statute "as applied." We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As part of a sting operation, a detective with the Internet Crimes Against Children Task Force posed as a minor and made a post under the "casual encounters" section of Craigslist. Appellant responded and posts peppered with sexual innuendo were sent back and forth between him and the detective. Eventually, the detective posted that he was fifteen. Appellant responded that he was twenty-seven, and after more back-and-forth posts, the two arranged to meet in a public park. The detective obtained a description of Appellant's vehicle and the police were waiting at the park to arrest him. After his arrest, Appellant was indicted for the offense of online solicitation of a minor.

Appellant subsequently filed a Motion to Quash Indictment contending the indictment was vague because it did not specify which statutory definition of "minor" the State was relying upon. He also filed an Application for Writ of Habeas Corpus contending section 33.021 was unconstitutional because (1) it was overbroad on its face since it criminalized speech protected by the First Amendment, (2) it was vague under the Fifth and Fourteenth Amendments, and (3) it violated the Dormant Commerce Clause by unduly burdening interstate commerce. The trial court denied Appellant any pretrial relief, and pursuant to a plea agreement, he entered a plea of guilty. Pursuant to the plea agreement, the court allowed Appellant to appeal its pretrial rulings pertaining to the constitutionality of section 33.021. Following entry of judgment, Appellant timely perfected this appeal.

APPLICABLE LAW

The relevant portions of the statute at issue, as it read when Appellant committed the offense, provided as follows:

Section 33.021. Online Solicitation of a Minor

(a) In this section:

(1) "Minor" means:

(A) an individual who is younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

* * *

(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.

(d) It is not a defense to prosecution under Subsection (c) that:

(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.

STANDARD OF REVIEW

Whether a statute is facially unconstitutional is a question of law reviewed de novo. Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2013). A claim that a statute is unconstitutional as written is a claim that the statute always operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). Accordingly, as the reviewing court, we consider the "statute only as it is written, rather than how it operates in practice." State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).

In our review, we begin with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d at 14 (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). Generally, the burden is on the party challenging the statute to establish its unconstitutionality. Id. However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Id. In other words, content-based regulations (laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid and the burden is on the government to rebut that presumption. Ashcroft v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004); Ex parte Lo, 424 S.W.3d at 15. In such cases, the reviewing court must apply the "most exacting strict scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). Furthermore, an appellate court should seek to uphold the statute as constitutional if there is any rational basis for doing so. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

Appellant contends that section 33.021(c) is a content-based regulation of free speech subject to a different standard of review. Relying on United States v. Alvarez, 567 U.S. 709, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012), and United States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010), Appellant contends that the "modern approach" to content-based regulation of free speech is not the "strict scrutiny" approach heretofore universally applied by appellate courts but is, instead, a "categorical approach."

Under this approach, a statute is presumed unconstitutional unless the restricted speech falls into one of a few narrowly-defined categories of historically unprotected speech such as obscenity, child pornography, conspiracy to commit a crime, incitement to commit a crime, and solicitation of a minor. See United States v. Williams, 553 U.S. 285, 297-98, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). By way of contrast, the State contends that section 33.021(c) is not a content-based regulation of free speech because it regulates conduct rather than content. As such, the State contends we should apply a presumption that the statute is valid with Appellant bearing the burden of establishing the statute's unconstitutionality. Based on these contrasting positions, the standard of review we must apply depends on whether section 33.021(c) is a content-based regulation of protected free speech. In other words, our first inquiry must be whether section 33.021(c) prohibits content or conduct.

FIRST AMENDMENT CONSTITUTIONAL CHALLENGE—OVERBREADTH

By his first issue, Appellant asserts that section 33.021(c) is overly broad and runs afoul of the First Amendment to the United States Constitution. We disagree.

CONTENT VS. CONDUCT

Section 33.021(c) prohibits and punishes the act of requesting that a minor meet another, including the actor, with the intent that the minor will engage in certain sexual behavior. In Maloney v. State, 294 S.W.3d 613, 625-29 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd), the court, in rejecting the defendant's overbreadth and vagueness challenges, held that section 33.021(c) is conduct-based, not content-based. The Texas Court of Criminal Appeals acknowledged the Maloney holding in Ex parte Lo, 424 S.W.3d at 23, noting that the act of requesting a minor to engage in illegal sexual acts is conduct that constitutes the gravamen of the offense in subsection (c). Id. at 17. (Emphasis in original).

In analyzing the constitutionality of subsection (b), the Court in Ex parte Lo, recognized that subsection (c) provided "an excellent contrast to" subsection (b). Id. Various other appellate courts, including this court, have held that subsection (c) prohibits conduct, not content, and therefore passes muster when faced with a challenge that the statute is unconstitutional on its face. See Ex parte Moy, ___ S.W.3d ___, No. 14-16-00420-CR, 2017 Tex. App. LEXIS 4176, at *6 (Tex. App.—Houston [1st Dist.] May 9, 2017, no pet. h.); State v. Paquette, 487 S.W.3d 286, 289 (Tex. App.—Beaumont 2016, no pet.); Ex parte Ingram, No. 04-15-00459-CR, 2016 Tex. App. LEXIS 4331, at *12 (Tex. App.—San Antonio April 27, 2016, pet. granted Aug. 24, 2016) (mem. op., not designated for publication) (holding that "[a] statute is content-based if the state must look at the content of the speech to determine if the speaker has broken the law"); Ex parte Fisher, 481 S.W.3d 414, 417-19 (Tex. App.—Amarillo 2015, pet. ref'd) (finding conduct to be "the gravamen of the offense"); Ex parte Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at *10-11 (Tex. App.—Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication), cert. denied, ___ U.S. ___, 135 S. Ct. 1557, 191 L. Ed. 2d 638 (2015) (concluding section 33.021(c) is a conduct-based statute subject to a presumption that the statute is valid); Ex parte Zavala, 421 S.W.3d 227, 231-32 (Tex. App.—San Antonio 2013, pet. ref'd) (concluding same).

As do our sister appellate courts, we conclude the constitutionality of section 33.021(c) should be determined according to the traditional "rational basis" standard instead of Appellant's suggested approach. Under the rational basis approach, we construe the statute according to its plain language, unless the language is ambiguous or would lead to absurd results that the Legislature could not have intended. See Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). Pursuant to the Texas Government Code, we read the words and phrases in context and construe them according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (West 2013). After doing so, if there is a reasonable construction that renders the statute constitutional, we defer to that construction. See Peraza v. State, 467 S.W.3d at 514.

The overbreadth doctrine is strong medicine and should be applied with hesitation and 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 v. Oklahoma, 413 U. S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)). A statute is facially unconstitutional under the overbreadth doctrine 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; Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). A statute will not be invalidated as overbroad merely because it is possible to imagine some unconstitutional applications. State v. Stubbs, 502 S.W.3d 218, 232 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).

Appellant contends subsection 33.021(c) is overbroad because, when combined with subsection 33.021(a)(1) (defining a "minor") and subsection 33.021(d) (establishing that the fact that a meeting does not occur is not a defense), the statute criminalizes fantasy "age-play" between consenting adults which is protected speech. His overbreadth argument also extends to the statutory definitions of "minor" as being substantial. In support of his argument, Appellant references an online article entitled "The Prevalence and Scope of Ageplay" by Paul J. Dohearty. Appellant's argument was rejected by this court in Ex parte Fisher, 481 S.W.3d at 420.

Overbreadth of a statute must not only be real, but substantial as well, and judged in relation to the statute's plainly legitimate sweep. Broadrick, 413 U. S. at 615. The statute's plainly legitimate sweep is to protect minors from sexual predators. Ex parte Lo, 424 S.W.3d at 23. In enacting the statute, the Legislature understood that it would permit officers to pose as minors to intercept sexual predators before they met with a minor for the purpose of engaging in sexual activities. Ex parte Moy, 2017 Tex. App. LEXIS 4176, at 8-9. When judging the statute in relation to its plainly legitimate sweep and intended means of enforcement, we conclude that any regulation of communications between adults engaged in fantasy "age-play" is insubstantial. Id. Any overbreadth may be cured by "judicious use of prosecutorial discretion" on a case-by-case basis. Ex parte Wheeler, 478 S.W.3d 89, 95 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Issue one is overruled.

FOURTEENTH AMENDMENT CONSTITUTIONAL CHALLENGE—VAGUENESS

By his second issue, Appellant contends the statute is vague, in violation of the Fourteenth Amendment to the United States Constitution. We disagree. A statute is unconstitutionally vague 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).

Citing to Ex parte Zavala, 421 S.W.3d at 232, Appellant contends that subsections (c) and (d) of the statute conflict on the required mens rea. He maintains "either the defendant intended at the time of the solicitation to meet and have sex with the 'minor' or he did not." In other words, Appellant asserts that subsection (d) dispenses with the intent element.

Appellant's argument has been analyzed and rejected by this court. Ex parte Fisher, 481 S.W.3d at 420-21. Subsection (c) provides that the actor "knowingly solicits"—the mens rea is provided and the act of solicitation is the gravamen of the statute—while subsection (d) applies post-solicitation and merely eliminates a defensive argument. Id. at 421. Protecting minors from sexual solicitation is of significant importance and when faced with two possible constructions of a statute, we apply the interpretation that sustains its validity. Id. We conclude the statute is not vague and therefore not unconstitutional. Issue two is overruled.

ARTICLE I, SECTION 8 CHALLENGE—DORMANT COMMERCE CLAUSE

Appellant's final challenge to the statute's unconstitutionality is that it "unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere" in violation of Article I, Section 8 of the United States Constitution, known as the Dormant Commerce Clause. We disagree.

Citing to American Libraries Association v. Pataki, 969 F. Supp. 160, 163 (S.D.N.Y. 1997), Appellant concludes that section 33.021(c) of the Penal Code unduly burdens interstate commerce by attempting to regulate communications that may occur outside of Texas. The balancing test for determining whether a statute violates the Dormant Commerce Clause was enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970). That test is "[w]here the statute regulates even-handedly 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." If a legitimate local purpose is found, then the question becomes one of degree. Id. The extent of the burden that will be tolerated will depend on the nature of the local interest involved and on whether that interest could be promoted with a lesser impact on interstate commerce. Id.

In Pataki, the portion of the statute being challenged was that which aimed to limit exposure by minors to harmful content (nudity, sexual conduct, sexual excitement, or sado-masochistic abuse). Pataki, 969 F. Supp. at 163. Recognizing that the Internet is borderless, the court found that the portion of the statute being challenged did impose a burden on interstate commerce that was disproportionate to the local benefits of regulation. Id. at 177. However, in Pataki, no challenge was made to the portion of the statute that criminalized adults luring children into sexual contact by communicating with them via the Internet. Id. at 179. Consequently, Pataki is inapposite and is of no aid to Appellant is his quest to have section 33.021(c) struck down for unduly burdening interstate commerce.

The statute is evenhanded. It does not differentiate between interstate and intrastate commerce. Ex parte Wheeler, 478 S.W.3d 89, 97 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Numerous courts, including this court, have held that protecting children from online solicitation is a legitimate local interest. Ex parte Fisher, 481 S.W.3d at 422. Similarly as the appellant in Ex parte Fisher, without any supporting argument, Appellant asserts that the statute imposes a burden on interstate commerce that is disproportionate to the local benefits. Any effect on interstate commerce is only incidental in relation to the local interest intended by the statute. The statute does not violate the Dormant Commerce Clause. Issue three is overruled.

CONCLUSION

As the State points out, Appellant presents nothing new for consideration since this court's decision in Ex parte Fisher. Appellate courts, including this court, have consistently upheld section 33.021(c) of the Texas Penal Code when faced with facial constitutional challenges. The trial court's judgment is affirmed.

Patrick A. Pirtle

Justice Do not publish.