Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00414-CR
Deshawn Dawayne GRIFFIN, Appellant
v.
The STATE of Texas, Appellee
From the 63rd Judicial District Court, Kinney County, Texas Trial Court No. 4565CR Honorable Eugenia “Genie” Wright, Judge Presiding
Opinion By: Lori Massey Brissette, Justice
Sitting: Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Velia J. Meza, Justice
Delivered and Filed: April 22, 2026
AFFIRMED AS MODIFIED
A Kinney County jury convicted Appellant Deshawn Dawayne Griffin of five counts of
smuggling of persons by using a motor vehicle to transport an individual with the intent to conceal
that individual from a peace officer, in violation of Texas Penal Code section
20.05(a)(1)(A) 1. After Griffin pled true to the repeat offender enhancement paragraph, the jury
1 The judgment signed by the trial court recites that the jury found appellant guilty of smuggling of persons but incorrectly cites the statute for this offense as Texas Penal Code section 20.05(b) (subsection on punishment). 04-24-00414-CR
sentenced him to fifteen years’ imprisonment. On appeal, Griffin raises three issues. In his first
issue, he argues that section 20.05(a)(1)(A) facially violates the First Amendment. In his second
and third issues, he contends that the statute is field preempted and conflict preempted by federal
law as applied to his prosecution. Because Roberts v. State controls the constitutional challenges
presented here, we affirm the trial court’s judgment, as modified.
BACKGROUND
On October 11, 2023, Galveston County Deputy Sheriff Jeremy B. Creech was on
assignment in Kinney County as part of Operation Lone Star. While patrolling U.S. Highway 90,
Deputy Creech observed a white sports utility vehicle (“SUV”) traveling eastbound towards
Brackettville. Deputy Creech noticed the vehicle was speeding, and a registration check revealed
the SUV was registered out of San Antonio and lacked insurance. Using a license plate reader
system, Deputy Creech reviewed the vehicle’s travel history and noted the vehicle took a route
that circumvented the U.S. Border Patrol checkpoint. Deputy Creech knew that Highway 674
lacked a Border Patrol checkpoint, so when the vehicle turned onto Highway 674 Deputy Creech
engaged his lights. Appellant, who was driving the SUV, pulled over and immediately five
passengers “bailed out” of the vehicle. U.S. Border Patrol agents arrived on scene and assisted
Deputy Creech in apprehending the passengers. Three of the passengers were apprehended,
brought back to the vehicle, and identified from Mexican identification cards each provided. Two
of the passengers were never located. Appellant was arrested and later indicted for five counts of
smuggling of persons under Texas Penal Code section 20.05(a)(1)(A). Appellant was convicted
following a jury trial and, after Appellant pled true to an enhancement, the jury assessed
punishment at fifteen years imprisonment. After conviction, Appellant filed a motion for new trial.
The trial court denied his motion and he timely appealed.
-2- 04-24-00414-CR
STANDARDS OF REVIEW
We review Appellant’s constitutional challenges de novo. 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
Appellant, in his brief, argues section 20.05(a)(1)(A) facially violates the First Amendment
to the United States Constitution. From our review, the arguments in this case are substantively
the same as those in Roberts v. State, in which this Court rejected a First Amendment facial
challenge and concluded that any unconstitutional applications of section 20.05(a)(1)(A) are not
substantial when compared to the constitutional ones. Roberts v. State, No. 04-24-00485-CR, 2026
WL 290378, at *2–4 (Tex. App.—San Antonio Feb. 4, 2026, no pet. h). Accordingly, for the
reasons articulated in Roberts, we overrule Appellant’s First Amendment facial challenge. See id.
AS-APPLIED PREEMPTION
In his second and third issues, Appellant argues that section 20.05(a)(1)(A) is field and
conflict preempted by federal law as applied to his prosecution.
A. Applicable Law
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). This court analyzed a similar as-applied field
and conflict preemption challenge to section 20.05(a)(1)(A) in Roberts, 2026 WL 290378, at *5–
9. As such, while we will address the facts specific to Appellant’s case for his as-applied challenge,
the legal principles discussed in Roberts control our analysis here.
-3- 04-24-00414-CR
B. Analysis
Appellant argues that federal law preempts section 20.05(a)(1)(A) as applied to his case
because Congress completely ousted the States from regulating in the “field of noncitizen
smuggling” and because Appellant’s prosecution conflicts with federal immigration laws and
prosecutorial prerogatives.
As we stated in Roberts, “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.” Id. at *7. Here, similarly, Appellant’s conviction did not turn on
proof of the passengers’ immigration status. Instead, the evidence at trial focused on Griffin’s
intent to conceal the passengers from all law enforcement, including the unusual route he chose—
traveling along Highway 674, which has no Border Patrol checkpoint—and the dark
tinted windows on the vehicle.
The State was not required to prove the passengers’ unlawful status or that Appellant knew
his passengers’ actual immigration status. Therefore, because Appellant was prosecuted under a
neutral statute, and his conduct was criminal regardless of the passengers’ immigration status, we
hold that Appellant’s prosecution was not as-applied field preempted. See Id. at *8; Kansas v.
Garcia, 589 U.S. 191, 208–09 (2020); State v. Flores, 679 S.W.3d 232, 245 (Tex. App.—San
Antonio 2023, pet. ref’d). See also Gutierrez v. State, 721 S.W.3d 639, 655 (Tex. App.—Corpus
Christi–Edinburg 2025, pet. ref’d) (holding section 20.05(a)(1)(A) was not as-applied 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”).
-4- 04-24-00414-CR
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 v. United States, 567
U.S. 387, 399 (2012). “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
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00414-CR
Deshawn Dawayne GRIFFIN, Appellant
v.
The STATE of Texas, Appellee
From the 63rd Judicial District Court, Kinney County, Texas Trial Court No. 4565CR Honorable Eugenia “Genie” Wright, Judge Presiding
Opinion By: Lori Massey Brissette, Justice
Sitting: Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Velia J. Meza, Justice
Delivered and Filed: April 22, 2026
AFFIRMED AS MODIFIED
A Kinney County jury convicted Appellant Deshawn Dawayne Griffin of five counts of
smuggling of persons by using a motor vehicle to transport an individual with the intent to conceal
that individual from a peace officer, in violation of Texas Penal Code section
20.05(a)(1)(A) 1. After Griffin pled true to the repeat offender enhancement paragraph, the jury
1 The judgment signed by the trial court recites that the jury found appellant guilty of smuggling of persons but incorrectly cites the statute for this offense as Texas Penal Code section 20.05(b) (subsection on punishment). 04-24-00414-CR
sentenced him to fifteen years’ imprisonment. On appeal, Griffin raises three issues. In his first
issue, he argues that section 20.05(a)(1)(A) facially violates the First Amendment. In his second
and third issues, he contends that the statute is field preempted and conflict preempted by federal
law as applied to his prosecution. Because Roberts v. State controls the constitutional challenges
presented here, we affirm the trial court’s judgment, as modified.
BACKGROUND
On October 11, 2023, Galveston County Deputy Sheriff Jeremy B. Creech was on
assignment in Kinney County as part of Operation Lone Star. While patrolling U.S. Highway 90,
Deputy Creech observed a white sports utility vehicle (“SUV”) traveling eastbound towards
Brackettville. Deputy Creech noticed the vehicle was speeding, and a registration check revealed
the SUV was registered out of San Antonio and lacked insurance. Using a license plate reader
system, Deputy Creech reviewed the vehicle’s travel history and noted the vehicle took a route
that circumvented the U.S. Border Patrol checkpoint. Deputy Creech knew that Highway 674
lacked a Border Patrol checkpoint, so when the vehicle turned onto Highway 674 Deputy Creech
engaged his lights. Appellant, who was driving the SUV, pulled over and immediately five
passengers “bailed out” of the vehicle. U.S. Border Patrol agents arrived on scene and assisted
Deputy Creech in apprehending the passengers. Three of the passengers were apprehended,
brought back to the vehicle, and identified from Mexican identification cards each provided. Two
of the passengers were never located. Appellant was arrested and later indicted for five counts of
smuggling of persons under Texas Penal Code section 20.05(a)(1)(A). Appellant was convicted
following a jury trial and, after Appellant pled true to an enhancement, the jury assessed
punishment at fifteen years imprisonment. After conviction, Appellant filed a motion for new trial.
The trial court denied his motion and he timely appealed.
-2- 04-24-00414-CR
STANDARDS OF REVIEW
We review Appellant’s constitutional challenges de novo. 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
Appellant, in his brief, argues section 20.05(a)(1)(A) facially violates the First Amendment
to the United States Constitution. From our review, the arguments in this case are substantively
the same as those in Roberts v. State, in which this Court rejected a First Amendment facial
challenge and concluded that any unconstitutional applications of section 20.05(a)(1)(A) are not
substantial when compared to the constitutional ones. Roberts v. State, No. 04-24-00485-CR, 2026
WL 290378, at *2–4 (Tex. App.—San Antonio Feb. 4, 2026, no pet. h). Accordingly, for the
reasons articulated in Roberts, we overrule Appellant’s First Amendment facial challenge. See id.
AS-APPLIED PREEMPTION
In his second and third issues, Appellant argues that section 20.05(a)(1)(A) is field and
conflict preempted by federal law as applied to his prosecution.
A. Applicable Law
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). This court analyzed a similar as-applied field
and conflict preemption challenge to section 20.05(a)(1)(A) in Roberts, 2026 WL 290378, at *5–
9. As such, while we will address the facts specific to Appellant’s case for his as-applied challenge,
the legal principles discussed in Roberts control our analysis here.
-3- 04-24-00414-CR
B. Analysis
Appellant argues that federal law preempts section 20.05(a)(1)(A) as applied to his case
because Congress completely ousted the States from regulating in the “field of noncitizen
smuggling” and because Appellant’s prosecution conflicts with federal immigration laws and
prosecutorial prerogatives.
As we stated in Roberts, “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.” Id. at *7. Here, similarly, Appellant’s conviction did not turn on
proof of the passengers’ immigration status. Instead, the evidence at trial focused on Griffin’s
intent to conceal the passengers from all law enforcement, including the unusual route he chose—
traveling along Highway 674, which has no Border Patrol checkpoint—and the dark
tinted windows on the vehicle.
The State was not required to prove the passengers’ unlawful status or that Appellant knew
his passengers’ actual immigration status. Therefore, because Appellant was prosecuted under a
neutral statute, and his conduct was criminal regardless of the passengers’ immigration status, we
hold that Appellant’s prosecution was not as-applied field preempted. See Id. at *8; Kansas v.
Garcia, 589 U.S. 191, 208–09 (2020); State v. Flores, 679 S.W.3d 232, 245 (Tex. App.—San
Antonio 2023, pet. ref’d). See also Gutierrez v. State, 721 S.W.3d 639, 655 (Tex. App.—Corpus
Christi–Edinburg 2025, pet. ref’d) (holding section 20.05(a)(1)(A) was not as-applied 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”).
-4- 04-24-00414-CR
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 v. United States, 567
U.S. 387, 399 (2012). “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.” Roberts, 2026 WL 290378, at *8
(citing Flores, 679 S.W.3d at 246–47). However, evidence from Appellant’s trial does not show
that his prosecution interfered with federal law or federal discretion over immigration-related
prosecutions. Further, there is no evidence in the record to suggest that federal prosecutors wished
to pursue federal charges against Appellant. On this record, we hold that Appellant’s prosecution
under section 20.05(a)(1)(A) was not preempted through conflict with federal law. See Roberts,
2026 WL 290378, at *8; see also 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”); 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 WRITTEN JUDGMENT
The trial court’s judgment identified the “Statute for Offense” as “Sec. 20.05(b) Penal
Code.” Appellant, 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 v. State, No. 07-23-00397-CR, 2025
WL 211324, at *4 (Tex. App.—Amarillo Jan. 15, 2025, no pet.) (mem. op., not designated for
publication). Accordingly, we modify the judgment of conviction to state that the “Statute for
Offense” is “20.05(a)(1)(A) Penal Code.”
-5- 04-24-00414-CR
CONCLUSION
We affirm the judgment of the trial court as modified.
Lori Massey Brissette, Justice
DO NOT PUBLISH
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