Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00637-CR
Justin Michael PERSINGER, Appellant
v.
The STATE of Texas, Appellee
From the 365th Judicial District Court, Maverick County, Texas Trial Court No. 23-12-08710-MCRAJA Honorable Amado J. Abascal III, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice
Delivered and Filed: April 29, 2026
AFFIRMED
Appellant Justin Michael Persinger appeals his conviction for one count of smuggling of
persons with intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(a)(1)(A)
and (b)(1)(C). Following a jury trial, Appellant was convicted and sentenced to four years’
imprisonment. In his first and second issues, Appellant argues the statute is field and conflict
preempted by federal law as applied to his prosecution. In his third issue on appeal, Appellant 04-24-00637-CR
argues section 20.05(a)(1)(A) facially violates the First Amendment. 1 We affirm Appellant’s
conviction.
BACKGROUND
At approximately 10:47 p.m. on May 4, 2023, Department of Public Safety Trooper Justin
Craig was patrolling U.S. Highway 57 in Maverick County as part of Operation Lone Star.
According to his testimony, while parked two to three miles north of the Border Patrol checkpoint,
in an area known for smuggling, Trooper Craig observed a small passenger car stop on the shoulder
of Highway 57. Trooper Craig heard the car honk its horn and observed multiple people emerge
from the brush and enter the vehicle. The driver, later identified as Justin Michael Persinger,
conducted a U-turn and began driving away from the area. While following the vehicle, Trooper
Craig saw people turning around to look at him through the back windshield before “quickly
crouch[ing] back down.” Before Trooper Craig initiated his emergency lights, Appellant suddenly
stopped on the shoulder of the highway and six individuals ran out of the vehicle. Trooper Craig
focused on apprehending the driver, and arrested Appellant for human smuggling. The passengers
were never located or identified, but Trooper Craig found two foreign identification cards, one
from Mexico and one from Honduras, in Appellant’s vehicle. After obtaining Appellant’s consent,
Trooper Craig photographed Appellant’s text messages that coordinated the pickup and payment
for transporting the individuals. Appellant was indicted for one count of smuggling of persons with
intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(b)(1)(C). Appellant was
1 Appellant’s motion for new trial and certain parts of Appellant’s brief assert an as-applied First Amendment challenge to Texas Penal Code 20.05(a)(1)(A). However, Appellant’s brief only provides substantive analysis with respect to a facial First Amendment challenge. Because Appellant’s brief fails to provide substantive analysis or record references with respect to an as-applied First Amendment challenge, we hold that such a challenge is waived due to inadequate briefing. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); see also Wolfe v. State, 509 S.W.3d 325, 342–45 (Tex. Crim. App. 2017) (holding court of appeals did not err by declining to consider matter appellant failed to brief).
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convicted following a jury trial and the jury assessed punishment at four years’ imprisonment.
After conviction, Appellant filed a motion for new trial. The motion was denied by operation of
law, and this appeal followed.
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) (“Preemption is a question of law reviewed de
novo.”); State v. Flores, 679 S.W.3d 232, 243 (Tex. App.—San Antonio 2023, pet. ref’d) (holding
the same); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (“Whether a statute is facially
constitutional is a question of law reviewed de novo.”).
AS-APPLIED PREEMPTION
In his first and second 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) (“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.”). This court analyzed a
similar as-applied field and conflict preemption challenge to section 20.05(a)(1)(A) in Roberts v.
State, No. 04-24-00485-CR, 2026 WL 290378, at *5–9 (Tex. App.—San Antonio Feb. 4, 2026,
no pet. h). As such, while we will address the facts specific to Appellant’s case for his as-applied
challenge, the legal principles discussed in Roberts guide our analysis here.
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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. The evidence presented at trial focused on Appellant’s
intent to conceal the individuals from all law enforcement and his intent to obtain a pecuniary
benefit. 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”).
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.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00637-CR
Justin Michael PERSINGER, Appellant
v.
The STATE of Texas, Appellee
From the 365th Judicial District Court, Maverick County, Texas Trial Court No. 23-12-08710-MCRAJA Honorable Amado J. Abascal III, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice
Delivered and Filed: April 29, 2026
AFFIRMED
Appellant Justin Michael Persinger appeals his conviction for one count of smuggling of
persons with intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(a)(1)(A)
and (b)(1)(C). Following a jury trial, Appellant was convicted and sentenced to four years’
imprisonment. In his first and second issues, Appellant argues the statute is field and conflict
preempted by federal law as applied to his prosecution. In his third issue on appeal, Appellant 04-24-00637-CR
argues section 20.05(a)(1)(A) facially violates the First Amendment. 1 We affirm Appellant’s
conviction.
BACKGROUND
At approximately 10:47 p.m. on May 4, 2023, Department of Public Safety Trooper Justin
Craig was patrolling U.S. Highway 57 in Maverick County as part of Operation Lone Star.
According to his testimony, while parked two to three miles north of the Border Patrol checkpoint,
in an area known for smuggling, Trooper Craig observed a small passenger car stop on the shoulder
of Highway 57. Trooper Craig heard the car honk its horn and observed multiple people emerge
from the brush and enter the vehicle. The driver, later identified as Justin Michael Persinger,
conducted a U-turn and began driving away from the area. While following the vehicle, Trooper
Craig saw people turning around to look at him through the back windshield before “quickly
crouch[ing] back down.” Before Trooper Craig initiated his emergency lights, Appellant suddenly
stopped on the shoulder of the highway and six individuals ran out of the vehicle. Trooper Craig
focused on apprehending the driver, and arrested Appellant for human smuggling. The passengers
were never located or identified, but Trooper Craig found two foreign identification cards, one
from Mexico and one from Honduras, in Appellant’s vehicle. After obtaining Appellant’s consent,
Trooper Craig photographed Appellant’s text messages that coordinated the pickup and payment
for transporting the individuals. Appellant was indicted for one count of smuggling of persons with
intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(b)(1)(C). Appellant was
1 Appellant’s motion for new trial and certain parts of Appellant’s brief assert an as-applied First Amendment challenge to Texas Penal Code 20.05(a)(1)(A). However, Appellant’s brief only provides substantive analysis with respect to a facial First Amendment challenge. Because Appellant’s brief fails to provide substantive analysis or record references with respect to an as-applied First Amendment challenge, we hold that such a challenge is waived due to inadequate briefing. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); see also Wolfe v. State, 509 S.W.3d 325, 342–45 (Tex. Crim. App. 2017) (holding court of appeals did not err by declining to consider matter appellant failed to brief).
-2- 04-24-00637-CR
convicted following a jury trial and the jury assessed punishment at four years’ imprisonment.
After conviction, Appellant filed a motion for new trial. The motion was denied by operation of
law, and this appeal followed.
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) (“Preemption is a question of law reviewed de
novo.”); State v. Flores, 679 S.W.3d 232, 243 (Tex. App.—San Antonio 2023, pet. ref’d) (holding
the same); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (“Whether a statute is facially
constitutional is a question of law reviewed de novo.”).
AS-APPLIED PREEMPTION
In his first and second 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) (“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.”). This court analyzed a
similar as-applied field and conflict preemption challenge to section 20.05(a)(1)(A) in Roberts v.
State, No. 04-24-00485-CR, 2026 WL 290378, at *5–9 (Tex. App.—San Antonio Feb. 4, 2026,
no pet. h). As such, while we will address the facts specific to Appellant’s case for his as-applied
challenge, the legal principles discussed in Roberts guide our analysis here.
-3- 04-24-00637-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. The evidence presented at trial focused on Appellant’s
intent to conceal the individuals from all law enforcement and his intent to obtain a pecuniary
benefit. 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”).
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) (describing conflict preemption as “cases where compliance with both
-4- 04-24-00637-CR
federal and state regulations is a physical impossibility” and “instances where the challenged law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.”). “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)).
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 in comparison to the constitutional ones. 2026 WL 290378, at *2–4. Accordingly, for
the reasons articulated in Roberts, we overrule Appellant’s First Amendment facial challenge. See
id.
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CONCLUSION
We affirm the judgment of the trial court.
Lori Massey Brissette, Justice
DO NOT PUBLISH
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