Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-24-00485-CR
Clay A. ROBERTS, Appellant
v.
The STATE of Texas, Appellee
From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 2023-0626-CR Honorable Roland Andrade, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice
Delivered and Filed: February 4, 2026
AFFIRMED AS MODIFIED
Appellant Clay A. Roberts was convicted by a jury of two counts of smuggling of persons
under Texas Penal Code section 20.05(a)(1)(A) and sentenced to forty-two months’
imprisonment. 1 In his first issue on appeal, Roberts argues that section 20.05(a)(1)(A) facially
violates the First Amendment. In his second and third issues, Roberts argues that the statute is field
1 The judgment signed by the trial court recites that the jury found Roberts guilty of smuggling but incorrectly cites the statute for this offense as Texas Penal Code section 20.05(b) (subsection on punishment). 04-24-00485-CR
and conflict preempted by federal law as applied to his prosecution. We affirm Roberts’ conviction
but sua sponte reform the trial court’s judgment to conform it with the jury’s verdict.
BACKGROUND
While on patrol in Val Verde County in the early morning, Department of Public Safety
Trooper Jordan Garner observed a car with a defective taillamp traveling along a public road. The
vehicle had tinted windows and was traveling from a Border Patrol checkpoint on a road known
by law enforcement to be one used for smuggling. Trooper Garner ran the license plate of the car
and noted that the vehicle was registered out of Kerr County. Trooper Garner engaged his lights,
and Roberts, who was driving the car, pulled over. After the car came to a stop, four passengers
immediately exited the vehicle, while Roberts remained inside. One passenger fled the scene, and
the other three passengers waited outside the vehicle. The passengers were in dirty clothes, covered
with brush and sticks. Trooper Garner gave Roberts commands to exit the vehicle, but Roberts
refused to comply. After approximately ten minutes, U.S. Border Patrol agents arrived to the scene
and assisted Trooper Garner in extracting Roberts from the vehicle. Once accomplished, Trooper
Garner arrested Roberts.
Border Patrol Agent Brett Price was one of the agents dispatched to the scene. According
to Agent Price, the three passengers who remained at the scene were in the country without lawful
immigration status. Further, according to Agent Price, Border Patrol agents commonly assist state
and local law enforcement agencies in the area because these local agencies do not have the
authority to determine immigration status.
Roberts was charged with violating a provision of Texas’s anti-smuggling statute, Texas
Penal Code section 20.05(a)(1)(A). He was convicted following his jury trial. After conviction,
Roberts filed a motion for new trial, raising a First Amendment facial challenge to section
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20.05(a)(1)(A) and an as-applied federal preemption challenge to his prosecution under that
statute. The trial court denied Roberts’ motion. Roberts now appeals from his conviction.
On appeal, Roberts raises the same constitutional challenges as in his motion for new trial.
We review these challenges de novo, and address them in turn. See Tex. Mut. Ins. Co. v. PHI Air
Med., LLC, 610 S.W.3d 839, 846 (Tex. 2020); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.
2013); State v. Flores, 679 S.W.3d 232, 243 (Tex. App.—San Antonio 2023, pet. ref’d).
FIRST AMENDMENT
In his first issue, Roberts argues that section 20.05(a)(1)(A) facially violates the First
Amendment to the United States Constitution. Section 20.05(a)(1)(A) provides: “(a) A person
commits an offense if the person knowingly: (1) uses a motor vehicle, aircraft, watercraft, or other
means of conveyance to transport an individual with the intent to: (A) conceal the individual from
a peace officer or special investigator[.]” TEX. PEN. CODE ANN. § 20.05(a)(1)(A).
Roberts argues,
Though it is a smuggling statute, [section 20.05(a)(1)(A)] does not require the State to prove that the defendant actually concealed anyone, let alone concealed someone wanted by law enforcement. Instead, the statute’s actus reus merely requires the State to prove that the defendant committed an innocuous, common act — driving with a passenger. The legislature didn’t enact this statute because it was concerned about that conduct. The statute’s focus, then, is its intent element. And under the statute’s intent element, that innocent act becomes criminal if the defendant did it with the wrong thought — with the intent to conceal. This suggests that the legislature intended to regulate thought.
According to Roberts, because the statute “focuses on regulating thought” and because it applies
a content-based restriction that distinguishes between favored and disfavored thought, 2 strict
scrutiny applies. See Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015) (“A law that is content
based on its face is subject to strict scrutiny[.]”). Roberts contends that the State has not and cannot
2 As Roberts puts it, “The driver can’t form the thought to conceal but can form other thoughts.”
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satisfy its burden to justify the law under the strict scrutiny standard, so the statute must be declared
unconstitutional on its face. See, e.g., Reed, 576 U.S. at 172.
A. Applicable Law
Facial challenges are “hard to win.” Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).
Ordinarily, a plaintiff cannot succeed unless he “‘establish[es] that no set of circumstances exists
under which the [law] would be valid,’ or he shows that the law lacks a ‘plainly legitimate sweep.’”
Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) and Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008)). Nevertheless, “to provide breathing room for
free expression,” the Supreme Court has lowered a “very high bar” and “substituted a less
demanding though still rigorous standard” for First Amendment facial claims. Id. (quoting United
States v. Hansen, 599 U.S. 762, 769 (2023)). In this singular context, “the question is whether ‘a
substantial number of [the law’s] applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” Id. (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S.
595, 615 (2021)); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (“The
overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial
amount of protected speech is prohibited or chilled in the process.”).
B. Application
The first step in a First Amendment facial analysis is to assess the challenged law’s scope.
Moody, 603 U.S. at 724. Scope entails, “[w]hat activities, by what actors, do[es] the law[] prohibit
or otherwise regulate?” Id. Section 20.05(a)(1)(A) prohibits using a means of conveyance to
transport an individual if done with a specific intent — to conceal that individual from a peace
officer or special investigator. TEX. PENAL CODE ANN. § 20.05(a)(1)(A). On its face, the law
regulates an action — the use of a means of conveyance to transport an individual. For simplicity,
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we refer to this action as “transport.” That action, or actus reus, if done with the stated specific
intent, is a crime. See id.
The next step “is to decide which of the laws’ applications violate the First Amendment,
and to measure them against the rest.” Moody, 603 U.S. at 725. Roberts focuses only on
applications in which a person transports with a “conscious objective” to conceal that is not
manifested through any action. See TEX. PENAL CODE ANN. § 6.03(a) (“A person acts intentionally,
or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result.”). Roberts contends that
section 20.05(a)(1)(A) reaches an “innocuous, common act — driving with a passenger —” if done
“with the wrong thought.”
However, section 20.05(a)(1)(A) also applies to transport during which a person is actually
concealing another. In such cases, section 20.05(a)(1)(A) does not punish mere “preparation,
thought or fantasy.” See United States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (rejecting
First Amendment facial challenge to 18 U.S.C. § 2423(b), which criminalizes interstate travel for
the purpose of engaging in illicit sexual activity). Moreover, in such cases, the relationship between
a defendant’s “intent to conceal” and transport is neither incidental nor tangential because
concealment occurs during transport. See id. (making similar point with respect to 18 U.S.C. §
2423(b)). In fact, we have affirmed convictions under section 20.05(a)(1)(A) where there has been
actual concealment. See Elsik v. State, 678 S.W.3d 360, 364–65 (Tex. App.—San Antonio 2023),
aff’d, 714 S.W.3d 27 (Tex. Crim. App. 2024) (holding evidence sufficient for jury’s finding of
intent to conceal a front-seat passenger, where defendant drove a U-Haul truck, evaded detention
by speeding up when an officer activated his siren, and thirteen passengers were found under
blankets covering the bed of the truck after it was stopped); see also Abdullah v. State, No. 04-23-
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00773-CR, 2024 WL 3800661, at *8 (Tex. App.—San Antonio Aug. 14, 2024, pet. ref’d) (mem.
op., not designated for publication) (holding evidence of a ventilation hole in the roof of a U-Haul
truck and defendant’s false story about the contents of the truck was “evidence of a level of
covertness” that supported the jury’s finding of intent to conceal the three passengers found in the
back of the U-Haul); cf. United States v. Gamache, 156 F.3d 1, 8 (1st Cir. 1998) (observing that
the constitutionality of punishing “‘mere thought’ may pose an interesting subject for academic
discourse,” but “that is not the way [18 U.S.C. § 2423(b)] is being applied to appellant”).
Roberts also argues that an “unusual aspect” of section 20.05(a)(1)(A) is that “it
criminalizes an innocent act with the thought to commit an act that is also not criminal.” 3 However,
Roberts has not tied his “unusual aspect” argument to the balancing of constitutional and
unconstitutional applications that we must perform. See Moody, 603 U.S. at 725. Moreover, even
under Roberts’ framing, section 20.05(a)(1)(A) is not “unusual” in applications in which the statute
reaches intended concealment that is unlawful — for example, concealment made unlawful by
Texas Penal Code section 38.05, which creates an offense for concealment with an intent to hinder
the arrest of another. See TEX. PENAL CODE ANN. § 38.05.
Thus, the scope of section 20.05(a)(1)(A) covers transport with an intent to conceal that is
demonstrated through actual concealment and where concealment is itself unlawful. This sweep is
“plainly legitimate.” See Moody, 603 U.S. at 723. The First Amendment protects the “freedom to
think as you will and to speak as you think,” 303 Creative LLC v. Elenis, 600 U.S. 570, 584 (2023)
(citation omitted), but its protections extend “only to conduct that is inherently expressive.”
3 Roberts’ “unusual aspect” argument relies on inapposite cases, in which the actus reus of the challenged criminal statute is speech or expressive conduct. See Ex parte Thompson, 442 S.W.3d 325, 336 (Tex. Crim. App. 2014) (concerning statute that regulated expressive conduct); Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013) (concerning statute that regulated speech). Roberts does not contend that the actus reus of transport in section 20.05(a)(1)(A) is speech or expressive conduct. Additionally, Roberts cites Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997), for the proposition that “a statute can contain an actus rea and still focus on restricting thought;” but Reno too is inapposite because, like Lo, it concerned “a content-based regulation of speech.” Id. at 871.
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Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006); see also U.S.
CONST., amend. I (“Congress shall make no law . . . abridging the freedom of speech.”); Bartnicki
v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to
impose an appropriate punishment on the person who engages in it.”). In applications that include
actual concealment, section 20.05(a)(1)(A) punishes non-expressive conduct, which does not raise
First Amendment concerns, even if the statute requires the fact-finder to determine intent. See
Wisconsin v. Mitchell, 508 U.S. 476, 482, 487–88 (1993) (holding statute enhancing punishments
for crimes committed because of race did not violate the First Amendment because the statute was
“aimed at conduct unprotected by the First Amendment” — not “offensive thought,” as the lower
court had held); Smith v. People of the State of Cal., 361 U.S. 147, 154 (1959) (“We might observe
that it has been some time now since the law viewed itself as impotent to explore the actual state
of a man’s mind.”).
In contrast, Roberts has not identified a single instance of prosecution under section
20.05(a)(1)(A) for thoughts to conceal without action in furtherance of concealment. See United
States v. Hansen, 599 U.S. 762, 782 (2023) (noting similar failure by defendant asserting First
Amendment facial challenge); cf. State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015)
(“[T]he danger that the statute will be unconstitutionally applied must be realistic and not based
on ‘fanciful hypotheticals.’” (citations omitted)). Assuming without deciding that section
20.05(a)(1)(A) could reach as far as Roberts posits, and further assuming that application of the
statute to thoughts to conceal without action in furtherance would violate the First Amendment,
we cannot say that such applications are “substantial” compared to the statute’s constitutional
applications. See Moody, 603 U.S. at 718; Hansen, 599 U.S. at 784–85 (assuming statute reached
some protected speech but, nevertheless, overruling First Amendment facial challenge because
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“the ratio of unlawful-to-lawful applications is not lopsided enough to justify the ‘strong medicine’
of facial invalidation for overbreadth.”); see also NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164,
1192 (N.D. Cal. 2025) (“[E]ven where strict scrutiny applies, the plaintiff must show that the
applications of the statute that fail strict scrutiny are substantial in comparison to any applications
of the statute that do not.”). It is doubtful that the State would prosecute if intent to conceal was
alleged to be a mental impression only because the State would face a daunting challenge to prove
its case beyond a reasonable doubt. See United States v. Williams, 553 U.S. 285, 303 (2008) (“The
mere fact that one can conceive of some impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.” (citation omitted)); United States v. Kaechele,
466 F. Supp. 2d 868, 896 (E.D. Mich. 2006) (“The same ‘difficulty of proof’ . . . likely will serve
as a powerful deterrent against the Government prosecuting an individual [under 18 U.S.C. §
2423(b)] who merely travels overseas with impure thoughts unaccompanied by any objective acts
indicative of an unlawful intent.”); cf. Ex parte Barrett, 608 S.W.3d 80, 96 (Tex. App.—Dallas
2020, pet. ref’d) (rejecting First Amendment facial challenge and noting availability of post-
conviction as-applied challenge if “the statute is applied overzealously and unrealistically”).
Therefore, having considered the scope of section 20.05(a)(1)(A) and explored its full set
of applications, and having concluded that any unconstitutional applications are not substantial in
comparison to constitutional ones, we overrule Roberts’ First Amendment facial challenge. See
Moody, 603 U.S. at 718.
PREEMPTION
Roberts argues in his second and third issues that section 20.05(a)(1)(A) is preempted by
federal law as applied to his prosecution.
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i. Preemption
The Supremacy Clause of the U.S. Constitution provides that the federal Constitution,
statutes, and treaties constitute “the supreme Law of the Land.” U.S. CONST. Art. VI, cl. 2. In
effect, the clause provides “a rule of decision” for determining whether federal or state law applies
in a particular situation. Kansas v. Garcia, 589 U.S. 191, 202 (2020) (citation omitted). “If federal
law imposes restrictions or confers rights on private actors and a state law confers rights or imposes
restrictions that conflict with the federal law, the federal law takes precedence and the state law is
preempted.” Id. (citation omitted).
Preemption will generally fall into three categories: express preemption, implicit field
preemption, or implicit conflict preemption. See Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112,
120 (Tex. 2024). “There is no doubt that Congress may withdraw specified powers from the States
by enacting a statute containing an express preemption provision.” Arizona v. United States, 567
U.S. 387, 399 (2012). “State law must also give way to federal law in at least two other
circumstances.” Id. “First, the States are precluded from regulating conduct in a field that
Congress, acting within its proper authority, has determined must be regulated by its exclusive
governance.” Id. “Second, state laws are preempted when they conflict with federal law.” Id.
In field preemption cases, the first step is to identify the specific field allegedly preempted.
Kansas, 589 U.S. at 208. We then consider whether Congress has determined that the field must
be regulated by its exclusive governance, to the exclusion of the States. Arizona, 567 U.S at 399.
Congressional “intent to displace state law altogether can be inferred from a framework of
regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where
there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude
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enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)). “Where Congress occupies an entire field . . . even complementary state
regulation is impermissible.” Id. at 401.
“In preemption analysis, courts should assume that the historic police powers of the States
are not superseded unless that was the clear and manifest purpose of Congress.” Id. at 400 (citations
omitted). The States have traditionally occupied criminal law enforcement; however, they have
not traditionally occupied immigration enforcement. Kansas, 589 U.S. at 210, 212 (noting that
while federal law “makes a single sovereign responsible for maintaining a comprehensive and
unified system to keep track of aliens within the Nation’s borders,” criminal law enforcement has
been and is “primarily a responsibility of the States”) (quoting Arizona, 567 U.S. at 401–02).
Conflict preemption occurs “where compliance with both federal and state regulations is a
physical impossibility, and those instances where the challenged state law stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 567
U.S. at 399. “What is a sufficient obstacle is a matter of judgment, to be informed by examining
the federal statute as a whole and identifying its purpose and intended effects[.]” Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 373 (2000). Conflict preemption may arise when a state
grants state actors “the power to bring criminal charges against individuals for violating a federal
law even in circumstances where federal officials in charge of the comprehensive scheme
determine that prosecution would frustrate federal policies.” Arizona, 567 U.S. at 402. Conflict
preemption may also arise when a state imposes its own penalties for a federal offense. Id.
However, some overlap of state and federal laws is allowed, as the Supreme Court observed:
In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors. Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law
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whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap. Indeed, in the vast majority of cases where federal and state laws overlap, allowing the States to prosecute is entirely consistent with federal interests.
Kansas, 589 U.S. at 212.
ii. As-Applied Preemption
For as-applied constitutional challenges, we must determine whether there was a
constitutional violation in the application of the statute to the defendant. See State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). “A litigant raising only an ‘as applied’
challenge concedes the general constitutionality of the statute, but asserts that the statute is
unconstitutional as applied to his particular facts and circumstances.” Id.
In State v. Flores, we held that section 20.05(a)(1)(A) was not facially preempted, but we
did not address whether the statute was preempted as applied to the appellants in that case because,
unlike Roberts, the appellants had not briefed the issue. Flores, 679 S.W.3d at 244.
Roberts does not argue that section 20.05(a)(1)(A) was expressly preempted. Instead, he
argues the statute was implicitly preempted, as applied to his prosecution, because Congress
completely ousted the States from regulating in the “field of noncitizen smuggling,” and because
Roberts’ prosecution conflicts with federal immigration laws and prosecutorial prerogatives.
For field preemption, Roberts identifies the relevant field as “noncitizen smuggling” or
“the smuggling of noncitizens.” See Kansas, 589 U.S. at 208. He argues the manner the State
applied section 20.05(a)(1)(A) to him was field and conflict preempted by the federal anti-
smuggling statute, 8 U.S.C. section 1324, which prohibits:
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(1)(A) Any person who —
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; [or]
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law[,]
shall be punished as provided in subparagraph (B).
8 U.S.C.A. § 1324(a)(1)(A)(i-iv). Under this statute, the federal government must prove the
individual smuggled was illegally present and the alleged smuggler knew or recklessly disregarded
that the individual smuggled lacked legal authorization. See, e.g., United States v. Foreman, 84
F.4th 615, 622 (5th Cir. 2023) (“[T]he elements of the crime of transporting illegal aliens in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) are that: (1) an alien was in the country illegally; (2) the
defendant knew or recklessly disregarded the fact that the alien was illegally present in the United
States; and (3) the defendant transported the alien with the intent to further the alien’s unlawful
presence.”). Thus, “[t]he aliens’ status is an element of the crime” and key to sustaining a
conviction under the federal law. United States v. Alvarado–Machado, 867 F.2d 209, 212 (5th Cir.
1989).
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Federal and state courts generally agree that under 8 U.S.C. section 1324, “state regulation
that specifically targets the smuggling of noncitizens is preempted because the clear and manifest
purpose of Congress was to completely oust state power from this area of regulation leaving no
room for analogous state crimes.” Flores, 679 S.W.3d at 244; see also Ga. Latino All. for Hum.
Rts. v. Governor of Ga., 691 F.3d 1250, 1264 (11th Cir. 2012) (GLAHR) (“The comprehensive
nature of these federal provisions is further evident upon examination of how § 1324 fits within
the larger context of federal statutes criminalizing the acts undertaken by aliens and those who
assist them in coming to, or remaining within, the United States.”); United States v. South
Carolina, 720 F.3d 518, 531 (4th Cir. 2013) (“The federal government has clearly occupied the
field of regulating the concealing, harboring, and transporting of unlawfully present aliens.”); Valle
del Sol Inc. v. Whiting, 732 F.3d 1006, 1025 (9th Cir. 2013) (“[I]n developing the scheme for
prohibiting and penalizing the harboring of aliens, Congress specifically considered the
appropriate level of involvement for the states. Section 1324(c) allows state and local law
enforcement officials to make arrests for violations of § 1324. Congress did not, however, grant
states the authority to prosecute § 1324 violations, but instead vested that power exclusively in the
federal authorities.”).
Courts generally find state human smuggling statutes facially field preempted where the
immigration status of the individual smuggled, concealed, or transported is an explicit element of
the crime, whether by the alleged smuggler’s knowledge of the smuggled person’s immigration
status, or based directly on the person’s status. See, e.g., GLAHR, 691 F.3d at 1256 (describing
Georgia law for “transporting or moving an illegal alien,” which made it a crime for a person,
“while committing another criminal offense, [to] knowingly and intentionally transport[] or
move[] an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the
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alien in the United States.” (emphasis added)); United Staes v. Alabama, 691 F.3d 1269, 1285
(11th Cir. 2012) (describing Alabama law criminalizing “(1) concealing, harboring, or shielding
an unlawfully present alien from detection, or attempting to do so; (2) encouraging or inducing an
unlawfully present alien to “come to or reside in” Alabama; (3) transporting, attempting to
transport, or conspiring to transport an unlawfully present alien, including an alien’s conspiracy to
be transported; and (4) harboring an unlawfully present alien by entering into a rental agreement
with that alien.” (emphasis added)); South Carolina, 720 F.3d at 530 (describing South Carolina
law that made “it a state felony to ‘transport, move or attempt to transport’ or ‘conceal, harbor or
shelter’ a person ‘with intent to further that person’s unlawful entry into the United States’ or to
help that person avoid apprehension or detection.” (emphasis added)); Valle del Sol, 732 F.3d at
1013 (describing Arizona law making it unlawful to “[c]onceal, harbor or shield or attempt to
conceal, harbor or shield an alien from detection in any place in this state, including any building
or any means of transportation, if the person knows or recklessly disregards the fact that the alien
has come to, has entered or remains in the United States in violation of law.” (emphasis added)).
Thus, several courts have found that the federal government has ousted the states from enacting
smuggling statutes where it is necessary to establish a noncitizen’s illegal presence to sustain a
conviction. See Flores, 679 S.W.3d at 244 (“[S]tate regulation that specifically targets the
smuggling of noncitizens is preempted[.]” (emphasis added)).
However, unlike the instances where courts have found state statutes to be field preempted,
section 20.05(a)(1)(A) does not require prosecutors to prove a noncitizen’s illegal presence in the
United States. In fact, Agent Price testified at Roberts’ trial that Border Patrol agents are regularly
called to assist state and local law enforcement agencies because these agencies lack the authority
to make immigration determinations.
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More to the point for Roberts’ as-applied challenge, his conviction did not turn on
immigration status. Prosecutors alleged only his intent to conceal individuals from law
enforcement, and the trial evidence indicated that Roberts wished to conceal his passengers from
all law enforcement. Roberts had been driving in the early morning in a vehicle with tinted
windows along a corridor known by law enforcement to be one used by smugglers. Roberts’
passengers were covered in dirt, which, in conjunction with the route chosen, could suggest that
his passengers had been hiding in the brush.
Nothing required the State to prove the passengers’ unlawful status or that Roberts knew
his passengers’ actual immigration status. In this respect, section 20.05(a)(1)(A) is much like the
fraud statute the Supreme Court considered in Kansas v. Garcia, which only indirectly implicated
the federal immigration scheme. In Kansas v. Garcia, “Kansas law made it a crime to commit
‘identity theft’ or engage in fraud to obtain a benefit.” 589 U.S. at 195. The defendants in that case,
three noncitizens without work authorization, were “convicted under these provisions for
fraudulently using another person’s Social Security number on state and federal tax-withholding
forms that they submitted when they obtained employment.” Id. Like section 20.05(a)(1)(A), the
Kansas statute did not contain any express provisions regarding immigration status of the person
committing the crime. Nevertheless, the defendants argued that because the alleged fraud related
to work authorization in the United States, it necessarily implicated the federal employment
verification system and, the defendants further argued, federal regulation implicitly precluded state
regulation in “the field of fraud on the federal employment verification system.” Id. at 208–09.
The Court rejected the defendants’ argument, noting that while federal law “makes a single
sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens
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within the Nation’s borders[,] federal law does not create a comprehensive and unified system
regarding the information that a State may require employees to provide.” Id.
Likewise, with smuggling, while federal law provides a comprehensive and uniform
system for “determin[ing] . . . who should or should not be admitted into the country,” DeCanas
v. Bica, 424 U.S. 351, 355 (1976), federal law does not create a comprehensive and unified system
regarding the concealment of persons from law enforcement. As we noted in Flores: “Federal law
specifically allows for state laws that target traffickers of noncitizens[, and] Congress did not
intend to preempt neutral state smuggling statutes like section 20.05(a)(1)(A).” Flores, 679 S.W.3d
at 245 (citing 22 U.S.C.A. § 7105(c)(3)(A), (C)). Roberts was prosecuted under this neutral statute,
and his conduct was criminal regardless of his passengers’ immigration status. We hold, on this
record, that Roberts’ prosecution was not field preempted. See Kansas, 589 U.S. at 208–09; Flores,
679 S.W.3d at 245; see also Gutierrez v. State, 721 S.W.3d 639, 655 (Tex. App.—Corpus Christi–
Edinburg 2025, pet. filed) (holding section 20.05(a)(1)(A) was not field preempted where the
evidence showed appellant “was not convicted merely because of the citizenship status of the back
seat passengers, but because she intended to conceal those individuals from law enforcement”);
Minor v. State, No. 07-23-00397-CR, 2025 WL 211324, at *3 (Tex. App.—Amarillo Jan. 15, 2025,
no pet.) (mem. op., not designated for publication) (rejecting appellant’s as-applied preemption
challenge where trial evidence “demonstrate[d] Appellant was convicted not because of his
passengers’ citizenship status, but because he intended to conceal individuals from law
enforcement. . . . [S]uch conduct is criminalized regardless of immigration status.”).
As to conflict preemption, state anti-smuggling and harboring laws that target non-citizens
may be preempted if they conflict with federal immigration law. See Arizona, 567 U.S. at 399;
Alabama, 691 F.3d at 1287 (holding Alabama’s anti-harboring statute “undermines the intent of
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Congress to confer discretion on the Executive Branch in matters concerning immigration.”);
South Carolina, 720 F.3d at 531–32 (finding conflict preemption where state anti-smuggling
statute created “an obstacle to the smooth functioning of federal immigration law, improperly
place[d] in the hands of state officials the nation’s immigration policy, and strip[ped] federal
officials of the authority and discretion necessary in managing foreign affairs.”); Valle del Sol, 732
F.3d at 1027 (“By allowing state prosecution of the same activities in state court, Arizona has
conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized
aliens in a manner unaligned with federal immigration enforcement priorities.”). With an as-
applied conflict preemption challenge, the application of the law must conflict with federal law’s
comprehensive immigration scheme or with the federal government’s discretion over immigration-
related prosecutions. See Flores, 679 S.W.3d at 246–47.
Evidence from Roberts’ trial, however, does not show that his prosecution interfered with
federal law or federal discretion over immigration-related prosecutions. Instead, the evidence
shows that Trooper Garner, a Texas law enforcement officer, arrested Roberts with assistance from
Border Patrol agents. According to trial evidence, state officers did not determine immigration
status or enforce federal immigration laws; these tasks were left to the Border Patrol agents who
arrived on the scene to assist. The record does not suggest that federal prosecutors wished to pursue
federal charges against Roberts, and, as described above, Roberts’ conviction did not turn on the
immigration status of his passengers. On this record, we hold that Roberts’ prosecution under
section 20.05(a)(1)(A) was not preempted through conflict with federal law. See Kansas, 589 U.S.
at 211 (“the mere fact that state laws like the Kansas provisions at issue overlap to some degree
with federal criminal provisions does not even begin to make a case for conflict preemption.”);
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Gutierrez, 721 S.W.3d at 657 (citing Kansas in rejecting appellant’s as-applied conflict preemption
argument regarding section 20.05(a)(1)(A)).
CLERICAL ERROR IN THE WRITTEN JUDGMENT
The trial court’s judgment identifies the “Statute for Offense” as “Sec. 20.05(b) Penal
Code.” Roberts, however, was charged and convicted under Texas Penal Code section
20.05(a)(1)(A). We have the authority to modify incorrect judgments when the necessary
information is available. TEX. R. APP. P. 43.2(b); see Minor, 2025 WL 211324. Accordingly, we
modify the judgment of conviction to state that the “Statute for Offense” is “20.05(a)(1)(A) Penal
Code.”
CONCLUSION
We affirm the judgment of the trial court as modified.
Rebeca C. Martinez, Chief Justice
PUBLISH
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