Ex Parte: Marcus Griffin

Opinion

AFFIRMED and Opinion Filed October 5, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00718-CR

EX PARTE MARCUS GRIFFIN

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-83303-2021

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Carlyle Opinion by Chief Justice Burns Marcus Griffin appeals the denial of his pretrial habeas petition, in which he

facially challenged the constitutionality of the online solicitation of a minor statute.

We hold, following the guidance of our sister courts, that the statute is neither vague

nor overbroad, as Griffin contends. We therefore affirm.

I. BACKGROUND

In 2021, Griffin was indicted for online solicitation of a minor. The

indictment alleged that Griffin had knowingly solicited Lee McMillian via the

Internet and electronic messaging to meet him, believing that McMillian was a minor

under seventeen named Ava, and with the intent to have sex with McMillian. These

allegations tracked the online solicitation statute. See TEX. PENAL CODE § 33.021. Griffin filed a pretrial habeas application to dispute the constitutionality of

section 33.021. He targeted the second of the statute’s two definitions of the term

“minor”:

(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.

Id. § 33.021(a)(1)(B). Griffin argued this second definition was unconstitutional

because it was both overbroad and vague.

The trial court denied Griffin’s habeas application, and Griffin appealed.

II. STANDARD OF REVIEW

“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary

remedy.” Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017). “This

remedy is reserved for situations in which the protection of the applicant’s

substantive rights or the conservation of judicial resources would be better served

by interlocutory review.” Id. at 891–92 (internal quotation omitted). Ordinarily, a

facial challenge to the statute defining the offense can be brought on pretrial habeas.

Id. at 892.

Whether a statute is facially constitutional is a question of law that we

review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). “When

the constitutionality of a statute is attacked, we usually begin with the presumption

–2– that the statute is valid and that the legislature has not acted unreasonably or

arbitrarily. Id. at 14–15. The burden normally rests upon the person challenging the

statute to establish its unconstitutionality. Id. at 15. However, when the government

seeks to restrict and punish speech based on its content, the usual presumption of

constitutionality is reversed. Id. Content-based regulations (those laws that

distinguish favored from disfavored speech based on the ideas expressed) are

presumptively invalid, and the government bears the burden to rebut that

presumption. Id.

III. VAGUENESS

Griffin first attacks the vagueness of the statute with regard to the second

definition of the term “minor.” He contends it is fatally vague because this second

definition hinges on the actor’s belief that the individual being solicited is under

seventeen. Belief, he says, is “too amorphous” of a standard “to comport with

constitutional principles.” And according to Griffin, vagueness concerns are

heightened because the belief-oriented definition of “minor” allows a conviction

based solely on what the actor is thinking, which implicates First Amendment

protections for free thought and expression.

When a law implicates First Amendment freedoms, “[g]reater specificity is

required” to survive a vagueness challenge. State v. Doyal, 589 S.W.3d 136, 146

(Tex. Crim. App. 2019). Thus, we begin by determining whether the statutory

subsections at issue implicate First Amendment freedoms.

–3– Griffin maintains that the statute’s definition of minor is an attempt to

criminalize a belief. But the statute’s belief-oriented definition of minor is not, in

itself, an offense at all; it does not criminalize the belief that an individual is under

the age of seventeen. It is simply a definition—and one that is only actualized into

a criminal offense when it is put to work in the other subsections of the statute.

The subsection under which Griffin is being prosecuted is 33.021(c). See

State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015). That provision

“prohibits and punishes an actor who uses electronic communications to ‘solicit’ a

minor, ‘to meet another person, including the actor, with the intent that the minor

will engage in’ certain sexual behavior.” Lo, 424 S.W.3d at 16 (quoting TEX. PENAL

CODE § 33.021(c)). Under this subsection, “it is the conduct of requesting a minor

to engage in illegal sexual acts that is the gravamen of the offense.” Id. at 16–17.

This sort of conduct enjoys little constitutional protection, and statutes

forbidding such conduct have routinely been upheld against First Amendment

challenges. Id. at 16. “One of the few recognized categories of speech that is fully

outside the protection of the First Amendment is speech or writing used as an integral

part of conduct in violation of a valid criminal statute.” Ingram, 533 S.W.3d at 897

(internal quotation omitted). Offers to engage in illegal transactions are

categorically excluded from First Amendment protection, and many long-

established criminal proscriptions—such as laws against conspiracy, incitement, and

solicitation—criminalize speech that is intended to induce illegal activities. Id. The

–4– Supreme Court has recognized speech as exempt from First Amendment protection

when it was the commission of a sort of inchoate crime—an act looking toward the

commission of another crime that the legislature can validly punish. Id.

Griffin acknowledges the precedent that held subsection 33.021(c) relates to

conduct rather than protected speech, but he attempts to sidestep this authority by

limiting the extent of his attack. In his brief, he writes, “Appellant specifically does

not challenge § 33.021(c),” but rather he only challenges the belief-oriented

definition of minor, which he says allows the State to police thoughts.

Griffin cannot transform section 33.021 into a “thought crime” simply by

limiting the scope of his challenge to a purely mental aspect of the offense. By his

logic, every criminal provision that demands a mens rea should be subject to

heightened First Amendment scrutiny simply because some aspect of the provision

relates to mental processes. This logic has it exactly backwards. Requiring a

culpable mental state is favored by our constitutional tradition, see Morissette v.

United States, 342 U.S. 246, 250–51 (1952), not disfavored for abridging the

freedoms of thought and expression: “While strict-liability offenses are not unknown

to the criminal law and do not invariably offend constitutional requirements, the

limited circumstances in which Congress has created and this Court has recognized

such offenses attest to their generally disfavored status.” United States v. U.S.

Gypsum Co., 438 U.S. 422, 437–38 (1978) (citations omitted).

–5– It is true, as Griffin alleges, that the statute allows prosecution based on the

mistaken belief that the individual solicited is a minor when the person is in fact an

adult. But this form of “solicitation still qualifies as an integral part of conduct in

violation of a valid criminal statute if the actor is mentally culpable with respect

to the solicited person’s age, even if the solicited person turns out to be an adult.”

Ingram, 533 S.W.3d at 898–99 (internal quotation omitted). As the Ingram court

wrote,

The Supreme Court has made clear that “[o]ffers to . . . engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer.” One characteristic of inchoate crimes that carries over into First Amendment jurisprudence is that the “impossibility of completing the crime because the facts were not as the defendant believed is not a defense.” Other courts have specifically held that the First Amendment does not protect a defendant who solicits someone he believes is a child who turns out to be an adult. Distinguishing between “the defendant who attempts to induce an individual who turns out to be a minor from the defendant who, through dumb luck, mistakes an adult for a minor” would “bestow a windfall to one defendant when both are equally culpable.”

This discussion demonstrates the constitutionality of a provision that punishes the solicitation of a “minor” who meets part (B) of the statutory definition—an individual whom the actor believes to be younger than 17 years of age.

Id. at 899 (citations omitted). The Ingram court thus found the definition that Griffin

contests here to be free from friction with the First Amendment. While much about

the statute has changed in subsequent amendments, this definition remains the same

as when the Ingram court ruled it constitutional.

–6– But even though this definition does not offend the First Amendment, is it

nonetheless unconstitutionally vague? We think it is not.

A statute is unconstitutionally vague if it “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so standardless that it authorizes

or encourages seriously discriminatory enforcement.” United States v. Williams,

553 U.S. 285, 304 (2008). Thus, “[t]o pass constitutional muster, a law that imposes

criminal liability must be sufficiently clear (1) to give a person of ordinary

intelligence a reasonable opportunity to know what is prohibited and (2) to establish

determinate guidelines for law enforcement.” Doyal, 589 S.W.3d at 146. “However,

a statute is not unconstitutionally vague merely because the words or terms used are

not specifically defined.” Ex parte Vazquez, 605 S.W.3d 248, 251 (Tex. App.—

Austin 2020, pet. ref’d) (quoting Engelking v. State, 750 S.W.2d 213, 215 (Tex.

Crim. App. 1988)). “Moreover, due process does not demand that a statute provide

‘perfect clarity and precise guidance.’” Id. (quoting Williams, 553 U.S. at 304).

“Rather, due process requires ‘fair warning as to what is prohibited.’” Id. (quoting

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)). “For example, the Supreme

Court has ‘struck down statutes that tied criminal culpability to whether the

defendant’s conduct was “annoying” or “indecent”—wholly subjective judgments

without statutory definitions, narrowing context, or settled legal meanings.’” Id. at

251–52 (quoting Williams, 553 U.S. at 306, and in turn citing Reno v. Am. Civil

–7– Liberties Union, 521 U.S. 844, 870–871 & n.35 (1997), and Coates v. Cincinnati,

402 U.S. 611, 614 (1971)).

Under these standards, the Third Court of Appeals recently rejected a

vagueness challenge to the belief-oriented definition of minor. Id. at 253. “Whether

someone held a belief or had an intent is a true-or-false determination, not a

subjective judgment such as whether conduct is ‘annoying’ or ‘indecent.’” Id. at

252 (quoting Williams, 553 U.S. at 306). “To be sure, it may be difficult in some

cases to determine whether these clear requirements have been met.” Id. (quoting

Williams, 553 U.S. at 306). “But courts and juries every day pass upon knowledge,

belief and intent—the state of men’s minds—having before them no more than

evidence of their words and conduct, from which, in ordinary human experience,

mental condition may be inferred.” Id. (quoting Williams, 553 U.S. at 306). “The

term ‘believes’ has a common and ordinary meaning of ‘to think or suppose; to

entertain as likely or probably true.’” Id. at 253 (quoting WEBSTER’S NEW

INTERNATIONAL DICTIONARY (3d ed. 1981)). Belief “is a term that readily can be

understood by a person of common intelligence,” and “a person of common

intelligence can determine with reasonable precision what conduct this statute

prohibits.” Id. (quoting Martinez v. State, 852 S.W.2d 665, 667 (Tex. App.—

Houston [14th Dist.] 1993, pet. ref’d)).

We agree with Vasquez and adopt its reasoning as our own. Belief is not a

fatally vague standard as used in this statute. A reader of ordinary intelligence would

–8– come away from the statute reasonably informed of the belief determination that

would fix criminal liability, and the definition in question creates no more potential

for discriminatory enforcement than any other code provision with a culpable mental

state. We therefore overrule Griffin’s first issue.

IV. OVERBREADTH

In his second issue, Griffin contends the statute’s definition of “minor” is

overbroad.1 In this issue, Griffin repeats many of the themes from his first issue. He

again argues that when the online solicitation statute defines the term “minor” in

terms of the actor’s belief, this is an attempt to police thoughts, which is protected

by the First Amendment. He further argues that the statute chills protected speech

between adults.

A statute is facially invalid under the First Amendment’s overbreadth doctrine

if it prohibits a “substantial” amount of protected speech “judged in relation to the

statute’s plainly legitimate sweep.” Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks,

539 U.S. 113, 118–19 (2003)). The overbreadth doctrine is “strong medicine” that

is used “sparingly and only as a last resort.” State v. Johnson, 475 S.W.3d 860, 865

(Tex. Crim. App. 2015). The person challenging the statute must demonstrate from

its text and from actual fact that a substantial number of instances exist in which the

law cannot be applied constitutionally. Id. The Supreme Court generally does not

1 He also asserts the statute is underinclusive, but he did not preserve that argument below. See TEX. R. APP. P. 33.1. –9– strike down laws as overbroad “where the parties fail to describe the instances of

arguable overbreadth of the contested law.” Id. (quoting Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450 n.6 (2008)).

Griffin has failed to explore the instances of overbreadth wherein the statute

might be applied to protected activity, and thus his challenge could arguably be

resolved on that basis alone. Nonetheless, the Texas Court of Criminal Appeals

appears to have done much of Griffin’s work for him in Ingram, wherein the court

explored several potential applications of the statute:

The following scenarios, for example, would not qualify as a representation that the complainant is under age 17 because the complainant would not be asserting underage status as a matter of fact:

(a) The defendant and complainant are both adults. They both know that the other is an adult and are aware of each other’s knowledge in that regard. The complainant makes statements that she is under age 17.

(b) The complainant says that she is an adult but will pretend to be a child. The complainant makes further statements consistent with pretending to be a child that do not, from the perspective of a reasonable person in the defendant’s shoes, undermine the earlier claim to be an adult.

On the other hand, the following scenarios are examples of a complainant representing herself to be underage:

(c) The complainant is an undercover police officer who is actually 40 years old. She says that she is 16 years old. The defendant does not know the complainant’s actual age.

(d) The complainant initially says that she is an adult but later makes statements that she is under age 17 that, from the perspective of a reasonable person in the defendant’s shoes, undermines the truthfulness

–10– of the earlier claim of adult status. The defendant’s only knowledge regarding the complainant’s age comes from these statements.

(e) The complainant is an undercover police officer who is actually 40 years old. She says that she is 16 years old. Unbeknownst to her, however, the defendant knows the complainant’s actual age and knows that she is unaware of his knowledge of her age.

These examples are illustrative and not necessarily exhaustive. Nevertheless, we observe that, of these examples, only example (e) involves a situation in which the defendant’s solicitation of the complainant might constitute an offense under the statute and might be protected by the First Amendment.

533 S.W.3d at 900. The court went on to describe this final scenario as rare if not

farfetched. See id. As this exercise shows, the potential for improper application is

limited relative to the statute’s legitimate reach.

There is substantial authority to support this view. Several courts have

determined section 33.021 is not overbroad generally. See Ex parte Nelson, No. 01-

19-00325-CR, 2019 WL 6315197, at *5 (Tex. App.—Houston [1st Dist.] Nov. 26,

2019, pet. ref’d) (mem. op., not designated for publication) (collecting upwards of

20 cases rejecting overbreadth challenges to the statute). Other courts have rejected

overbreadth challenges to the belief-oriented definition of minor. In Ex parte Moy,

much like here, the appellant argued that the definition of minor was an attempt to

“regulate[] a defendant’s thoughts” and that, in light of this definition, “the statute

prohibits communications with persons who are not actually minors and thus

criminalizes protected speech between adults.” 523 S.W.3d 830, 837 (Tex. App.—

Houston [14th Dist.] 2017, pet. ref’d). The court disagreed and held instead “that

–11– the compelling interest of protecting children from sexual predators, i.e., the law’s

legitimate sweep, is well served by the prohibition on child solicitation in subsection

(c),” whereas the definition’s potential to interfere with protected communication

between adults is “insubstantial.” Id. The court reached a similar conclusion in Ex

Parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *5 (Tex. App.—

Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication) (“The

fact that the statute defines ‘minor’ to include otherwise legal communications with

someone who may actually be over the age of 17 would not make the statute

unconstitutionally overbroad because the ‘overbreadth,’ if any, would not be

substantial when compared to the compelling and legitimate purpose of the

statute.”).

We agree with these authorities and conclude that the statute’s second

definition of minor is not overbroad. We overrule Griffin’s second issue.

V. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order denying habeas

relief.

/Robert D.Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE 220718F.P05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARCUS GRIFFIN, Appellant On Appeal from the 366th Judicial District Court, Collin County, Texas No. 05-22-00718-CR V. Trial Court Cause No. 366-83303- 2021. THE STATE OF TEXAS, Appellee Opinion delivered by Chief Justice Robert Burns. Justices Molberg and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 5th day of October, 2022.

–13–