Ex Parte: Raghavendra Chanagond v. the State of Texas

Opinion

Affirm and Opinion Filed June 13, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00029-CR

EX PARTE RAGHAVENDRA CHANAGOND

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-85405-2021

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Pedersen, III Raghavendra Chanagond appeals the trial court’s January 19, 2023 “Order on

Defendant’s Application for Writ of Habeas Corpus Challenging section 33.021(c)

of the Texas Penal Code as Unconstitutional Under the First Amendment to the

United States Constitution” (the Order), which denied his pretrial petition for writ of

habeas corpus. Appellant is accused of violating section 33.021(c) of the Texas

Penal Code, which 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. TEX. PENAL CODE

ANN. § 33.021(c). In two issues, appellant contends that this statute is an unconstitutionally invalid content-based restriction on speech because: (1) it is

overbroad, and (2) it is not the least restrictive means of accomplishing any

legitimate interest and therefore fails to satisfy a strict scrutiny review. We affirm

the trial court’s Order denying relief.

Background

The indictment in this case charges that appellant did:

then and there, with the intent that Lee McMillian, representing himself to be Ava, hereafter styled the complainant, whom [appellant] believed to be a minor, would engage in sexual intercourse, and deviate sexual intercourse, with [appellant], knowingly solicit over the Internet, and by text message, and through a commercial online service the complainant to meet [appellant].

See PENAL § 33.021(c). Appellant filed his “Pretrial Application for Writ of Habeas

Corpus Challenging section 33.021(c) of the Texas Penal Code as Unconstitutional

Under the First Amendment to the United States Constitution” (the Application),

arguing that section 33.021(c) is facially invalid.

The trial court held a hearing on the Application and, shortly thereafter, signed

the Order denying relief. This appeal followed.

Discussion

A defendant may seek a pretrial writ of habeas corpus to challenge the facial

constitutionality of a statute, i.e., to attack the validity of the statute itself. See Peraza

v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Whether a statute is facially

constitutional is a question of law that we review de novo. Salinas v. State, 464

S.W.3d 363, 366 (Tex. Crim. App. 2015). When an appellant challenges the –2– constitutionality of a statute, we usually begin our review 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 10, 14–15 (Tex. Crim. App. 2013). In that usual situation,

the burden rests upon the appellant challenging the statute to establish its

unconstitutionality. Id. at 15. However, when the government seeks to restrict and

punish speech based upon 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. Assigning the burden

in this case, therefore, requires that we determine whether section 33.021(c) is in fact

a content-based regulation on speech.

Nature of the Statute

Appellant argues that section 33.021(c) is a content-based restriction on

speech that “restricts communications (text messages, electronic messages) based on

their content (whether they ‘solicit’).”1 We do not write on a blank slate on this issue.

The court of criminal appeals has stated that section 33.021(c) does not restrict

speech, rather “it is the conduct of requesting a minor to engage in illegal sexual acts

that is the gravamen of the offense.” Lo, 424 S.W.3d at 16–17 (emphasis in original).

1 Appellant argues further that this restricted speech does not fall within any of the categories the United States Supreme Court has historically recognized as protected. Because we disagree with his premise that this statute restricts speech, we need not address this argument. –3– As the court reasoned, section 33.021(c) is a solicitation statute, the likes of which

have been routinely upheld, because offers to engage in illegal transactions—such

as sexual assault of a minor—are categorically excluded from First Amendment

protection. Id. We have previously followed this ruling, concluding that section

33.021(c) addresses not protected speech, but conduct and, where communications

are involved, unprotected speech. Ex parte Griffin, No. 05-22-00718-CR, 2022 WL

5113138, at *2 (Tex. App.—Dallas Oct. 5, 2022, pet. ref’d). And we have agreed

with the court of criminal appeals that “[t]his sort of conduct enjoys little

constitutional protection, and statutes forbidding such conduct have routinely been

upheld against First Amendment challenges.” Id. (citing Lo, 424 S.W.3d at 16.).

Because we conclude that section 33.021(c) regulates only conduct and unprotected

speech, we presume its validity, and we place the burden of demonstrating

unconstitutionality on appellant. See Lo, 424 S.W.3d at 15.

Overbreadth

In appellant’s first issue, he contends that section 33.021(c) is overbroad

because it “forbids speech that is not an offer to engage in criminal activity.” Again,

we have concluded that conduct is at issue in this statute, not protected speech. But

“[a] law may be invalidated as overbroad if ‘a substantial number of its applications

are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”

United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State

Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6 (2008)).

–4– Section 33.021’s plainly legitimate sweep involves protecting the physical and

psychological well-being of minors, which is unquestionably a compelling

government interest. New York v. Ferber, 458 U.S. 747, 756–57 (1982) (“The

prevention of sexual exploitation and abuse of children constitutes a government

objective of surpassing importance.”).

A party challenging a statute as overbroad must demonstrate from its text and

from actual fact that a substantial number of instances exist in which the statute

cannot be applied constitutionally. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim.

App. 2016.2 Appellant’s challenge argues that the statute forbids solicitations that

do not include offers to engage in criminal activity. Appellant imagines two

circumstances in which an adult could solicit lawful sexual conduct from a minor:

1. Sue, a 20-year-old woman texts her 16-year-old sister Ann, “Your boyfriend [who is also 16] is dreamy. Why don’t you get together and … do it.”

2. Twenty-year-old Bob’s and 16-year-old Steve’s families have been close for decades. The two men have known each other since childhood. They have fallen in love, and their families approve of their relationship but, respecting the law, they refrain from consummating the relationship. A week before Steve’s birthday, Bob emails him, “I can’t wait to see you next Saturday and finally make love to you.”

2 Ordinarily, our overbreadth analysis begins with the text of the statute. See United States v. Williams, 553 U.S. 285, 293 (2008) (“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.”). On its face, this statute 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. In this case, appellant does not challenge the meaning or reach of any particular term within the statute or its purpose to protect minors from sexual predators. –5– The first example posits a situation in which an adult might encourage a minor

to meet with someone with whom the minor could lawfully consent to sex, i.e.,

someone within three years of age of the minor. See PENAL § 33.021(e) (“It is a

defense to prosecution under this section that at the time conduct described by

Subsection (c) was committed: . . . the actor was not more than three years older than

the minor and the minor consented to the conduct.”). We can—for purposes of this

opinion only—consider that such a scenario could fall literally within the reach of

section 33.021(c). However, such a “solicitation” would necessarily be directed

toward the minor by an adult who knew the minor well enough to know both her age

and the age of her boyfriend; indeed, appellant’s scenario involves a communication

between sisters. This type of solicitation could not trigger law enforcement

involvement as appellant’s solicitation did: he allegedly contacted Detective

McMillan believing the detective was a young girl. Appellant’s first hypothetical

solicitation would be addressed to a specific, known person. Given the remote

possibility that such a communication would be brought to the attention of law

enforcement, we are confident that the overbreadth problem would be cured through

case-specific analysis of the fact situation, and the statute’s sanctions would not be

applied. See Ferber, 458 U.S. at 773–74.

Appellant’s second example envisions an adult asking a minor to meet him

for sex at a later date, after the minor could lawfully consent to sex with the adult.

This scenario is concerning in a way the first scenario was not, because—as the State

–6– points out—section 33.021(c) is violated when the solicitation is made. “The intent

expressed in the bill analyses, the committee hearings, and the floor debate was that

the crime of solicitation of a minor on the internet is complete at the time of the

internet solicitation, rather than at some later time if and when the actor actually

meets the child.” Lo, 424 S.W.3d at 23. Accordingly, appellant’s second

hypothetical does not describe conduct that is lawful. While his precise scenario of

the minor’s being days away from his seventeenth birthday may mean that the

likelihood of prosecution is remote, we do not consider it an example of section

33.021(c)’s improperly sweeping up lawful conduct within its plainly legitimate

reach.

Regardless, a statute will not be susceptible to an overbreadth challenge

merely because it is possible to imagine some unconstitutional applications. United

States v. Williams, 553 U.S. 285, 303 (2008). We consider section 33.021(c) an

example of a state statute “whose legitimate reach dwarfs its arguably impermissible

applications.” See Ferber, 458 U.S. at 773. “When a statute that is designed to

protect children against predatory practices proscribes mostly speech that is not

protected by the First Amendment but incidentally encompasses unusual situations

that are protected by the First Amendment, the correct approach is to uphold the

statute against an overbreadth challenge and deal with the unusual situations on an

‘as applied’ basis when they arise.” Ex parte Ingram, 533 S.W.3d 887, 900 (Tex.

Crim. App. 2017).

–7– We conclude appellant has not established that section 33.021(c) is

impermissibly broad when judged in relation to its plainly legitimate sweep. We

overrule appellant’s first issue.

Strict Scrutiny

In his second issue, appellant contends that section 33.021(c) fails review

under the standard of strict scrutiny. This issue contemplates application of certain

first principles of constitutional law. The First Amendment prohibits the enactment

of laws “abridging the freedom of speech.” U.S. CONST. amend. I. Thus, a

government may not restrict expression because of its message, ideas, subject matter,

or content. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). When a law

does regulate protected speech, and that regulation is challenged, we review the

regulation under varying standards of constitutional scrutiny; if the restriction is

imposed on the content of protected speech, it is invalid unless the government can

demonstrate that it passes strict scrutiny. Brown v. Entm’t Merchants Ass’n, 564 U.S.

786, 799 (2011). To survive a strict scrutiny review, the regulation must be justified

by a compelling government interest and be narrowly drawn to serve that interest.

Id.

Appellant contends specifically that section 33.021(c) is not narrowly drawn

to serve a compelling government interest. But we do not reach the question of how

narrowly drawn the statute is because, as we concluded above, section 33.021(c)

does not impose any regulation on protected content-based speech. Instead, it is a

–8– regulation on conduct and unprotected speech that is categorically excluded from

First Amendment protection. Lo, 424 S.W.3d at 16–17. Accordingly, the concept of

strict scrutiny is simply not relevant to our review.

We overrule appellant’s second issue.

Conclusion

We affirm the trial court’s January 19, 2023 Order denying appellant’s

Application for a writ of habeas corpus.

/Bill Pedersen, III// 230029f.u05 BILL PEDERSEN, III Do Not Publish JUSTICE TEX. R. APP. P. 47

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE RAGHAVENDRA On Appeal from the 199th Judicial CHANAGOND District Court, Collin County, Texas Trial Court Cause No. 199-85405- No. 05-23-00029-CR 2021. Opinion delivered by Justice Pedersen, III. Justices Goldstein and Smith participating.

Based on the Court’s opinion of this date, the January 19, 2023 Order of the trial court is AFFIRMED.

Judgment entered this 13th day of June, 2023.

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