ACCEPTED 03-15-00755-CR 11107119 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/13/2016 11:26:59 AM JEFFREY D. KYLE CLERK No. 03-15-00755-CR
In the FILED IN 3rd COURT OF APPEALS Court of Appeals for the Third District of Texas AUSTIN, TEXAS at Austin 6/13/2016 11:26:59 AM ___________________________ JEFFREY D. KYLE Clerk No. 15-0431-K368 In the 368th Judicial District Court Williamson County, Texas ____________________________
Justin Robert Parker Appellant v. THE STATE OF TEXAS Appellee _____________________________
STATE’S BRIEF IN RESPONSE
_____________________________
Jana Duty District Attorney Williamson County, Texas
John C. Prezas State Bar No: 24041722 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626 (512) 943-1234 (512) 943-1255 (fax) jprezas@wilco.org
ORAL ARGUMENT REQUESTED STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, Appellant
has requested oral argument in this case. Therefore, to preserve its right to argue
and respond, the State requests oral argument. However, because both this Court 1,
as well as other courts of appeal have already resolved this issue in a manner
consistent with the reasoning used by the Court of Criminal Appeals, the State
believes that the briefs and the record adequately present the legal arguments, and
that the decisional process would not be significantly aided by oral argument.
1 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539 (Tex. App.—Austin April 7, 2016) (mem. op., not designated for publication). ii IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State
offers the following supplement to the parties identified in Appellant’s brief:
Attorneys for the State
• Ms. Lytza Rojas (pretrial), Assistant District Attorney for the Williamson
County District Attorney, 405 Martin Luther King, Georgetown, Texas
78626.
• Mr. John C. Prezas (pre-trial briefing of appellate issues and appeal),
Assistant District Attorney for the Williamson County District Attorney, 405
Martin Luther King, Georgetown, Texas 78626.
• Mr. Daniel Sakaida (appeal), Assistant District Attorney for the Williamson
County District Attorney, 405 Martin Luther King, Georgetown, Texas
iii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii IDENTIFICATION OF THE PARTIES ................................................................. iii TABLE OF CONTENTS ......................................................................................... iv INDEX OF AUTHORITIES......................................................................................v ISSUES PRESENTED...............................................................................................1 SUMMARY OF THE ARGUMENT ........................................................................1 ARGUMENT .............................................................................................................2 I. STANDARD OF REVIEW..............................................................................2 A. Binding Precedent Holds that Section 33.021(c) Regulates Conduct, Not Speech ..................................................................................................................2 B. Appellant’s Arguments to the Contrary Fail ..............................................5 C. Even if Appellant’s Arguments were not Erroneous, Solicitation is not Protected by the First Amendment ......................................................................9 D. The Prohibited Defenses Do Not Change this Analysis ..........................11 II. SECTION 33.021 IS NOT OVERBROAD ................................................12 A. Subsection (c) is not Overbroad ...............................................................13 B. Subsection (d) is not Overbroad...............................................................17 III. SECTION 33.021 IS NOT IMPERMISSIBLY VAGUE ...........................18 IV. RECENT LEGISLATIVE CHANGES DO NOT ALTER THESE CONCLUSIONS ..................................................................................................24 V. SECTION 33.021 DOES NOT VIOLATE THE DORMANT COMMERCE CLAUSE .......................................................................................26 PRAYER ..................................................................................................................29 CERTIFICATE OF COMPLIANCE .......................................................................30 CERTIFICATE OF SERVICE ................................................................................30
iv INDEX OF AUTHORITIES
Cases Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013) ... 3, 4, 8, 10, 13, 14, 28 Ex parte Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at *2 (Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication) ............................................................................................... 4, 13, 14 American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997)......... 26, 27 Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) .................................................12 Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989) ..............................12 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942). .............................10 Collins v. State, 479 S.W.3d 533 (Tex. App.—Eastland 2015, no pet.) ...... 4, 14, 22 Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). .....................................3 Engleking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988) .........................22 Ex Parte Thompson, 442 S.W.3d 325, 338 (Tex. Crim. App. 2014). .....................10 Ex Parte Wheeler, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d).............................................................................. 3, 4, 12, 14, 18, 19, 22, 28 Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref’d) ............................................................................................................. 4, 18, 19, 20 Frieling v. State, 67 S.W.3d 462 (Tex. App.—Austin 2002, pet. ref’d) .................10 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443 (1960) .............27 In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d)). ...... 12, 13 Karwoski v. State, 867 So. 2d 486, 488 (Fla. App. 2004). ........................................8 Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d.)................................................................................. 4, 13, 14, 17, 19, 20, 22 Marbury v. Madison, 5 U.S. 137 (1803) ..................................................................25 McBurney v. Young, 133 S. Ct. 1709, 1721 (2013) .................................................28 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539 (Tex. App.— Austin April 7, 2016) (mem. op., not designated for publication).ii, 3, 13, 21, 22, 23 New York v. Ferber, 458 U.S. 747, 769 (1982) .......................................................13 Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999). .............................22 Pike v. Bruce Church, 397 U.S. 137, 142 (1970). ...................................................27 Sanchez v. State, 995 S.W.2d 677, 688 (Tex. Crim. App. 1999). ...........................10 Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). .............................5 Scott v. State, 36 S.W.3d 240, 242 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd.) ....................................................................................................................17
v State v. Holcombe, 187 S.W.3d 496, 499-501 (Tex. Crim. App. 2006)..................19 State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). .............................5 United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ..........................11 United States v. Salerno, 481 U.S. 739, 745 (1987) ..................................................5 United States v. Williams, 553 U.S. 285, 298 (2008) ..............................................11 Statutes Tex. Penal Code Sec. 33.021. ..............................................................................5, 12 Other Authorities Act of May 22, 2015, 84th Leg., R.S., ch. 61, §1, §2, 2015 Tex. Gen. Laws 1036. ..............................................................................................................................25 Bill Analysis S.B. 344 ..............................................................................................26
vi TO THE HONORABLE COURT OF APPEALS:
ISSUES PRESENTED
Appellant asserts that those portions of the version of Section 33.021 of the
Texas Penal Code applicable to this case, not declared unconstitutional by the
Court of Criminal Appeals in Ex Parte Lo, are also unconstitutional because they
are overbroad and vague in violation of the First Amendment and because they
violate the dormant commerce clause.
SUMMARY OF THE ARGUMENT
Appellant applies the wrong standard to his analysis because binding
precedent has made clear that section 33.021 regulates non-expressive conduct, not
speech. Further, any speech used to solicit minors to engage in sexual conduct is
not protected by the First Amendment. The prohibited defenses do not change this
analysis. Section 33.021 is not overbroad, as this Court and other appellate courts
have recognized, because the plainly legitimate sweep of the statute far outweighs
Appellant’s hypothetical conception that it might prohibit certain types of adult
roleplay.
Section 33.021 is sufficiently clear and not unconstitutionally vague because
a plain reading of the statute makes clear what conduct it prohibits and what
1 defenses are and are not allowable. The recent legislative changes do not change
this analysis. The function and purpose of the various branches of the government,
as well as the doctrine of separation of powers, make clear that this Court should
follow its own decisions as well as those of other appellate courts when evaluating
section 33.021’s constitutionality rather than Appellant’s assertions about
legislative fears thereof.
Finally, existing precedent makes clear that section 33.021 does not operate
in a manner that would violate the dormant commerce clause. Appellant provides
scant explanation for this assertion and the case law he does cite supports the
State’s position more than his own.
ARGUMENT
I. STANDARD OF REVIEW
A. Binding Precedent Holds that Section 33.021(c) Regulates
Conduct, Not Speech
Appellant argues that section 33.021 of the Texas Penal Code 2 regulates
speech and thereby violates the First Amendment. He is wrong. His mistake is an
2 Appellant challenges the statute in effect at the time the offense occurred. Effective September 1, 2015, the Texas legislature made changes to the statute as detailed below in FN 55. 2 important one because it impacts the burden of proof and the presumptions with
which this Court must grapple. Normally, the Court must presume the statute is
valid and that the legislature has not acted unreasonably or arbitrarily in enacting
it. The party challenging a statute carries the burden to establish the statute’s
unconstitutionality3. If there is a reasonable construction that renders the statute
constitutional, the court must uphold it 4. When a challenged statute seeks to
restrict speech, however, the statute is instead presumed invalid, and the State
bears the burden of rebutting that presumption 5.
The Court of Criminal Appeals has already clearly settled this issue6, as this
Court recognized approximately three days after Appellant filed his brief 7. As
Appellant acknowledges in his brief, several other intermediate appellate courts
have ruled in a manner consistent with this Court and the Court of Criminal
Appeals 8. When the Court of Criminal Appeals held subsection 33.021(b)
unconstitutional, it specifically, held up subsection (c) as an “excellent contrast”
3 See, e.g., Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013); Ex Parte Wheeler, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d). 4 Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). 5 See, e.g., Lo, 424 S.W.3d at 15; Wheeler, 478 S.W.3d at 93. 6 Lo, 424 S.W.3d at 16-17. 7 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539 (Tex. App.—Austin April 7, 2016) (mem. op., not designated for publication). 8 See e.g., Wheeler, 478 S.W.3d at 95-96; Brief for Appellant p. 12. 3 because (1) subsection (c) is a solicitation statute of the kind routinely upheld in
many jurisdictions, (2) offers to engage in illegal transactions such as sexual
assault of minors are categorically excluded from the protection of the First
Amendment, and (3) because the gravamen of the offense of solicitation is, “the
conduct of requesting a minor to engage in illegal sexual acts.” 9
Following the clear language and reasoning in Ex parte Lo and Mower
compels this Court to reaffirm that section 33.021(c) regulates conduct not speech
and, thus, presume it is a valid statute and require Appellant to rebut that
presumption 10.
Further, the plain text of section 33.021 makes this clear. Subsection (b)
was found unconstitutional in part precisely because it prohibited speech on its
face, that is communication with minors in a sexually explicit manner or
distributing sexually explicit material. Subsection (c) by contrast prohibits the act
9 Lo, 424 S.W.3d at 16-17. 10 See, e.g., Lo, 424 S.W.3d at 17; Wheeler, 478 S.W.3d at 93; Ex parte Victorick, No. 09-13- 00551-CR, 2014 Tex. App. LEXIS 5429, at *2 (Tex. App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication) (concluding that section 33.021(c) punishes conduct rather than the content of speech alone and applying presumption of statutory validity in overbreadth and vagueness challenges), cert. denied, 135 S. Ct. 1557 (2015); Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d.) (applying presumption that statute is valid in its review of overbreadth and vagueness challenges to Penal Code section 33.021(c)); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref’d) (presuming validity of Penal Code section 33.021(c) in considering vagueness challenge); Collins v. State, 479 S.W.3d 533 (Tex. App.—Eastland 2015, no pet.) (finding 33.021(c) regulates conduct and presuming the validity of the statute). 4 of soliciting a minor to meet for sexual contact, sexual intercourse, or deviate
sexual contact. A person has violated subsection (c) if they solicit such a meeting
regardless of the type of the words used or the manner in which they use their
electronic device to communicate the solicitation 11. This is true even if the words
used to solicit are not, in and of themselves, sexually explicit 12.
But Appellant faces a greater challenge than just overcoming the
presumption of validity. Because Appellant challenges the facial constitutionality
of subsections (c) and (d) of sec. 33.021, rather than its constitutionality as applied,
he must show the statute is unconstitutional in every application 13. To meet this
heavy burden, Appellant must show that no set of circumstances exist under which
the statute is valid14.
B. Appellant’s Arguments to the Contrary Fail
Appellant argues that the Texas online solicitation statute, section 33.021,
regulates speech because the First Amendment protects expressive conduct as well
11 Tex. Penal Code Sec. 33.021. 12 Id. 13 United States v. Salerno, 481 U.S. 739, 745 (1987); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). 14 Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). 5 as actual speech. He points to Texas and United States Supreme Court
jurisprudence regarding regulations of expressive conduct, also called symbolic
speech. However, beyond this assertion, Appellant fails to articulate how
soliciting a minor for sexual contact is symbolic or expressive of anything. Peace
symbols, arm bands, refusals to salute a flag, and acts of taking a photograph, are
all far removed from using electronic means to find a child victim to molest. The
former are clearly acts that do communicate views in a manner the First
Amendment may protect. The latter does not submit an idea, concept, or assertion
into the free market of ideas and free flow of expression the First Amendment is
meant to protect. Rather, such conduct is a criminal act the State can and should
proscribe.
Appellant also argues that words do not gain less protection merely because
they also constitute conduct. However, he also misses the point that merely
because some conduct, such as wearing an armband or not saluting the flag, is
expressive does not mean that all conduct or the conduct here falls into that
category.
Appellant seeks to create ambiguity to his benefit where none exists. The
First Amendment protects expression, typically with speech, sometimes with
speech-like expressive conduct. Here, this Court, the Court of Criminal Appeals,
6 and other intermediate appellate courts have made clear that Section 33.021
prohibits a non-expressive type of conduct.
Appellant argues that all of these decisions are erroneous, pointing to
language in Ex Parte Lo and various federal cases that describe solicitation as
speech. Yet, these decisions are not as definitive as Appellant asserts.
The language Appellant points to in Ex Parte Lo itself demonstrates the
manner in which he is misreading that case. The Court of Criminal Appeals
referenced soliciting speech precisely because the Court of Criminal Appeals was
discussing section (b), which it ultimately held unconstitutional for prohibiting
solely speech. The language that Appellant argues is dicta is, in fact, important to
the Lo decision and carries more weight than mere dicta because the court relied on
the disparity between the currently challenged sections that criminalize the conduct
of soliciting a minor for sex via communication and the section it held
unconstitutional, which prohibited solely speech. The Lo court used this disparity
to illustrate precisely why the portions it struck down violated the Constitution,
thereby placing limits upon the future application of that decision.
7 The mere fact that Appellant’s counsel, Mr. Bennett, feels his argument led
to what he now characterizes as dicta15, is neither controlling nor persuasive.
While the Court of Criminal Appeals clearly found his overall reasoning
persuasive, his arguments are not the law that binds this Court. To the extent that
the opinion of the Court of Criminal Appeals expands upon or otherwise differs
from his argument, it is that ruling and not Mr. Bennett’s argument by which this
Court should abide.
Further, the court in Karwoski analyzed the Florida statute at issue in a
manner similar to that used by the Court of Criminal Appeals in Lo, stating prior to
the line quoted in Appellant’s brief, “it is the speech itself that translates into the
criminal conduct.”16 That court thus viewed the solicitation as both speech and
conduct in a manner similar to the language Appellant cites from the Lo case
itself. 17 This is illustrative because the case law interpreting federal statutes similar
to section 33.021, many of which Appellant cites, appear to start with the
assumption that speech is regulated and do not directly address an argument that
the law at issue regulates conduct rather than speech.
15 R.R. II:19-20. 16 Karwoski v. State, 867 So. 2d 486, 488 (Fla. App. 2004). 17 Brief for Appellant p. 13; Ex Parte Lo, 424 S.W.3d at 18. 8 Even had federal courts evaluated federal statutes in this manner, there is
nothing preventing a state law from targeting and regulating non-expressive
conduct, including conduct that includes communication, differently or more
strictly than federal courts so long as that state law abides by the Constitution,
including the First Amendment. Thus, the argument that federal courts interpreting
federal statutes deems those federal statutes as regulating speech, whether they
considered the possibility of regulating conduct or not, is not directly dispositive of
whether section 33.021 regulates speech or conduct.
When this Court returns to the binding authority on Texas law, including its
own recent precedent, the issue becomes clearer.
C. Even if Appellant’s Arguments were not Erroneous, Solicitation is
not Protected by the First Amendment
Appellant’s urges this Court, as he did the trial court, to find that section
33.021 fails the strict scrutiny standard because it regulates protected speech. Even
were the above analysis applicable, and this Court entertained Appellant’s urgings
and analyzed the non-expressive conduct regulated by section 33.021 as speech,
this Court should still deny his claims because speech involving criminal
solicitation rests squarely in the category of speech that cannot and does not benefit
9 from the protections of the First Amendment. When considering subsection (c),
the Texas Court of Criminal Appeals said, “Such solicitation statutes exist in
virtually all states and have been routinely upheld as constitutional because ‘offers
to engage in illegal transactions [such as sexual assault of a minor] are
categorically excluded from First Amendment protection’18.”
The Supreme Court of the United States has held that words that incite
criminal acts, such as lewd, obscene, libelous, and so-called fighting words, are
traditionally beyond the bounds of the First Amendment’s protection 19. As
solicitation is a criminal act committed with words or words meant to facilitate and
incite a criminal act, it too would fall outside the First Amendment’s protection.
Texas Courts have applied similar analysis finding solicitation of
prostitution, bribery, and extortion all are speech without constitutional protection,
as they constitute criminal conduct 20. In Ex Parte Thompson 21, the Court of
Criminal Appeals explained that “When the intent is to do something that, if
accomplished, would be unlawful and outside First Amendment protection, such as
18 Lo, 424 S.W.3d at 16 (citing United States v. Williams, 553 U.S. 285, 297 (2008)). 19 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942). 20 See Frieling v. State, 67 S.W.3d 462 (Tex. App.—Austin 2002, pet. ref’d); Sanchez v. State, 995 S.W.2d 677, 688 (Tex. Crim. App. 1999). 21 Ex Parte Thompson, 442 S.W.3d 325, 338 (Tex. Crim. App. 2014). 10 the intent to threaten or intimidate, such an intent might help to eliminate First
Amendment concerns.” Because Tex. Penal Code sections 21 .02, 21.11, 22.011,
and 22.021 all forbid the exact types of sexual conduct for which Tex. Penal Code
section 33.021(c) prohibit solicitation, that solicitation also falls outside First
Amendment protection 22.
D. The Prohibited Defenses Do Not Change this Analysis
Appellant argues that the prohibition against fantasy or lack of intent for a
meeting to occur move the conduct prohibited into the realm of speech or
expressive conduct protected by the First Amendment. Appellant acknowledges
that section 33.021(c) on its face forbids only incitement and that the Supreme
Court of the United States has recognized solicitation as criminal speech intended
to induce or commence illegal activity that enjoys no First Amendment protection
because offers to give or receive what is unlawful have no social value 23.
However, Appellant asserts that 33.021(d) forbids constitutionally protected
22 Further, Appellant’s own brief cites to United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) for the proposition that speech attempting to arrange the sexual abuse of children has no greater constitutional protection than speech attempting to arrange any other crime. See Brief for Appellant p. 13-14. 23 United States v. Williams, 553 U.S. 285, 298 (2008) (holding that offers to provide or requests to obtain child pornography are categorically excluded from first Amendment Protection). 11 speech not intended to result in sex with children because it precludes the defenses
that the actor did not intend for the meeting to occur and that the actor was
engaged in fantasy at the time of the commission of the offense24.
This argument is essentially the same as his arguments that the prohibition
of these defenses render the statute overbroad and void for vagueness. The reasons
asserted below in sections II, III, and IV, that these prohibitions do not render the
statute unconstitutionally vague or overbroad also illustrate why they do not
expand its reach to protected speech.
II. SECTION 33.021 IS NOT OVERBROAD
A statute is unconstitutional on its face as overbroad only if it prohibits a
substantial amount of protected speech as judged against the statute’s plainly
legitimate sweep. The overbreadth must be real and substantial. This Court must
not invalidate the statute merely because it is possible to imagine an
unconstitutional application25. The Supreme Court of the United States noted that
because invalidating a statute has wide reaching consequences, when asked to do
24 Tex. Penal Code § 33.021(d); Brief for Appellant p. 23-24. 25 See Ex Parte Wheeler, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d) (citing Lo, 424 S.W.3d at 18) (quoting Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)); Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d)). 12 so by one whose conduct is punished by said statute, courts must consider the
overbreadth doctrine “strong medicine” that should be employed “only as a last
resort.26”
A. Subsection (c) is not Overbroad
Appellant argues that subsection (c) is unconstitutional because it prohibits
an adult person engaged in “ageplay” from soliciting a consenting adult to
participate in a fantasy roleplay where one or both of said adults pretends to be a
minor. This Court has recently rejected this argument as has the Beaumont Court
of Appeals; the Houston Court of Appeals for the First District has rejected it
twice27. Further the Court of Criminal Appeals cited with favor the holding in
Maloney that subsection (c) was constitutional 28.
The mere conceivability that “ageplay” presents an unconstitutional
application does not invalidate subsection (c) as overbroad 29. For reasons
26 New York v. Ferber, 458 U.S. 747, 769 (1982) (citing Broadrick, 413 U.S. at 613). 27 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539, at *9-10 (Tex. App.— Austin, 2016) (mem. op., not designated for publication); Maloney v. State, 294 S.W.3d 613, 626-29 (Tex. App.—Houston [1st Dist.] 2009); Ex parte Victorick, 2014 Tex. App. LEXIS 5429, at *2; Wheeler, 478 S.W.3d at 97. 28 Lo, 424 S.W.3d at 17. 29 In re Shaw, 204 S.W.3d at 15. 13 detailed more fully below, Appellant’s Exhibit “B 30” to his writ application to the
trial court does not advance the “ageplay” beyond mere conceivability. Further,
the Wheeler court reviewed the same “report” as in Appellant’s Exhibit “B” and
reached the same conclusion 31.
By contrast, the State’s interest and the legitimate sweep of section 33.021
could not be more important—protecting children from sexual predators seeking to
assault and exploit them. This important State interest far outweighs Appellant’s
asserted concerns regarding “ageplay. 32” “[T]he incidence of the State seeking to
prosecute two consenting adults engaging in online role playing or ‘fantasy’ would
likely be exceedingly low. 33” The danger of overbreadth is, thus, not substantial
enough to call the constitutionality of section 33.021 into question 34.
Appellant argues that because the number of people who use the internet to
engage in fantasy is significant, that alone meets the test for a real and substantial
30 C.R. I: 34-50. 31 Wheeler, 478 S.W.3d at 95 (“Although the Dohearty article asserts that ageplay is increasingly prevalent in the age of social media, we conclude that the legitimate reach of Penal Code section 33.021(c) dwarfs the threat of its arguably impermissible application to innocent ageplayers and that whatever overbreadth exists should be cured by thorough and case-by-case analysis and judicious use of prosecutorial discretion”). 32 Maloney, 294 S.W.3d at 627 (citing Ferber, 458 U.S. at 773); Lo, 424 S.W.3d at 19; Collins v. State, 479 S.W.3d 533, 538-39 (Tex. App.—Eastland 2015, no pet.). 33 Maloney, 294 S.W.3d at 628. 34 Id.; Ex parte Victorick, 2014 Tex. App. LEXIS 5429 at *2; Wheeler, 478 S.W.3d at 95. 14 overbreadth. Appellant does not show that the statute reaches out to proscribe
legitimate behavior of such a large number of internet users engaging in “ageplay”
as to render the statute overbroad. Further, Appellant appears to argue that the
statute criminalizes “ageplay” because he misconstrues in subsection (a)(1) the
duality of a person who represents themselves to be a minor and a person the actor
believes to be a minor. Appellant reads this to mean a person violates the law if he
solicits for sexual contact a person the actor knows to be an adult who represents
themselves to be a minor as part of a roleplay “ageplay” scenario.
That is clearly neither the intent nor the application of the plain text of the
statute. If both parties know the other is engaged in roleplay then they are not
representing themselves as a minor. Rather, they are representing themselves as
adults engaged in roleplay. That defense is not prohibited by subsection (d)
because that is not evidence of being engaged in fantasy it is a defense that the
person did not meet the definition of minor based on the nature of the interaction.
The language in subsection (a)(1) is meant to cover both actual minors the actor
solicits online and the law enforcement officer engaged in a “sting” operation to
locate predators seeking to solicit children and thereby protect actual children from
harm.
15 Even if the above were not true, Appellant’s argument still ignores the
reality that complying with the statue simply requires adults desiring to engage in
“ageplay” to identify themselves as such prior to initiation of the fantasy—
something that even Mr. Dohearty’s materials, contained in Appellant’s Exhibit
“B” to his brief to the trial courts 35, suggests is commonly done. In fact, Dohearty
identifies multiple places (both concrete and virtual) and multiple ways that
“ageplayers” organize and recognize each other 36. Thus, law enforcement, when
investigating solicitation of minors for illegal purposes, such as sexual assault, can
and do readily distinguish adults with fetishes from predators seeking vulnerable
children, as do prosecutors and grand juries when evaluating the fruits of such
investigations.
The statute, as written, prevents a defendant from relying on the defense that
even though a minor represented herself as a child, he thought she was older. The
reasoning behind this is analogous to the reasoning behind strict liability laws
35 C.R. I:34-49 (indicating a variety of specific internet sites for those interested in “ageplay” to interact with each other and the mere attendance of which indicates an interest in adult roleplay of this kind). 36 Id.
16 regarding sexual abuse. In Scott v. State37, the First Court of Appeals analyzed the
constitutionality of statutory rape laws, stating, “The statute rationally furthers a
legitimate governmental interest. It protects children from sexual abuse by placing
the risk of mistake as to a child's age on an older, more mature person who chooses
to engage in sexual activity with one who may be young enough to fall within the
statute's purview.” Likewise here, section 33.021(c) places that risk in the same
place, upon the older, more mature person soliciting someone who clearly
represents himself or herself to be younger than seventeen.
B. Subsection (d) is not Overbroad
Appellant also argues that the statute is overbroad because subsection (d)
precludes as a defense from prosecution the arguments that the accused did not
intend for the meeting to occur or was engaged in fantasy at the time. The
reasoning in the subsection above applies equally well here. In addition, “if a
statute can be construed in two different ways, one of which sustains its validity,
we apply the interpretation that sustains its validity 38.”
37 Scott v. State, 36 S.W.3d 240, 242 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd.) (citing United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir. 1991)). 38 Maloney, 294 S.W.3d at 626. 17 Section 33.021, when read as a whole, forbids the solicitation of a minor to
meet with the intent that the minor and the actor will engage in some manner of
sexual contact 39. Because, “the crime of soliciting a minor under section 33.021(c)
is committed, and is completed at the time of the request, i.e. the solicitation,” it
follows that, “it does not matter what happens after the solicitation occurs because
the offense has been completed.40” Therefore, as detailed more fully below, it does
not matter if the defendant did not intend for the meeting to occur or was engaged
in a fantasy at the time 41.
III. SECTION 33.021 IS NOT IMPERMISSIBLY VAGUE
Appellant asserts that the statute is void for vagueness because it prohibits
the defenses that the actor did not intend for the meeting to occur or that the actor
was engaged in fantasy at the time of the commission of the offense, which
Appellant reads as contradictory to the point that men of common intelligence
must necessarily guess at its meaning. Yet, as detailed above, when faced with
multiple interpretations, this Court must choose the one favoring constitutionality,
39 Zavala, 421 S.W.3d 227, 231-232. (Tex. App.—San Antonio 2013, pet. ref’d) 40 Id. at 232. 41 Id.; Wheeler, 47 S.W.3d at 95. 18 that being the regulation of the conduct of solicitation. This reading of the statute
does give a person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited. Therefore, section 33.021(c) is not impermissibly vague 42.
Despite Appellant’s assertions to the contrary, the intent required by the
statute (the intent that the minor will engage in sexual contact) is consistent with
the prohibited defenses 43. To violate the statute, the actor must have the required
intent at the time of engaging in the prohibited conduct of solicitation. That is
what renders otherwise innocent conduct criminal, and that is why whether or not a
meeting happens after the solicitation and whether or not the actor intended for a
meeting to happen after the solicitation is irrelevant 44. The fact that the Defendant
was engaged in a fantasy also does not matter unless, in the course of that fantasy,
he chooses to solicit a minor with the intent that the minor will engage in sexual
contact.
Appellant argues that the First Court of Appeals in Maloney and the Fourth
Court of Appeals in Zavala contradict each other by comparing Maloney’s
description of the statute prior to engaging in its analysis with two lines from
42 See State v. Holcombe, 187 S.W.3d 496, 499-501 (Tex. Crim. App. 2006); Wheeler, 478 S.W.3d at 95; Maloney, 294 S.W.3d at 628-629. 43 Zavala, 421 S.W.3d at 231-232. 44 Id. 19 Zavala with which he takes issue45. The actual analysis of these cases, while
addressing different approaches from the defendant to the same attack, is
consistent. Compare;
Once that conduct is established, the statute provides that an accused may not defend against the charge by arguing that he was merely engaging in fantasy. Thus, the statute does not criminalize the act of fantasy, unless, as part of that ‘fantasy,’ a person engages in the conduct proscribed 46
With,
The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation 47.
These cases both address that it is the conduct at the time of the solicitation
that matters. Further, the statute criminalizes the solicitation with the intent that
the minor engage in sexual contact with the actor or another person. While
Appellant attempts to simplistically read both the statute and the opinion in Zavala
as contradictory, neither is. The statute prohibits the defense of fantasy because a
person cannot solicit a child to meet and engage in sexual contact even if that
solicitation is part of his or her fantasy any more than a person can engage in any
45 Brief for Appellant p. 35-36. 46 Maloney, 294 S.W.3d at 629. 47 Zavala, 421 S.W.3d at 232. 20 other criminal conduct because doing so was a part of his or her fantasy. That
prohibition no more proscribes adult roleplay than does the prohibition against
other criminal conduct proscribe adults from roleplaying as criminals, so long as
they do not actually engage in the prohibited conduct.
On its face the statute may preclude a defense that a meeting didn’t occur to
cover a situation where a defendant solicited a meeting with a minor for sexual
contact and then feared getting caught too much to attend the meeting. The
solicitation, and the crime, has already occurred. The statute may also preclude a
defense that the actor did not intend for the meeting to occur because once the
actor has solicited a meeting to occur the criminal conduct has happened. To put
on evidence at trial and request a jury charge on the issue that he did not intend for
the meeting to occur does not negate his solicitation of the meeting. The statute
does not prohibit the defendant from putting on evidence that he was not actually
engaging in solicitous conduct or that he was not actually soliciting a minor as
defined by the statute.
This Court has itself found this statute not unconstitutionally vague despite
concerns about “ageplay” and the lack of a definition of fantasy 48. This Court
48 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539, at *10-12 (Tex. App.— Austin April 7, 2016) (mem. op., not designated for publication). 21 noted that when the defendant in Mower argued, as does the Appellant here, that
the statute infringed on the protected speech of two adults engaging in fantasy
“ageplay,” he demonstrated that the prohibited conduct and the term “fantasy” are
clear and easily understood 49.
The statute’s failure to define a given word does not invalidate that statute.
Rather, courts must give undefined words their plain meaning 50. That the statute
does not define fantasy is of little concern because the statute regulates conduct
and does not criminalize fantasy unless as a part of that fantasy, a person engages
in that regulated conduct 51. Further, the prohibition of the meeting actually
occurring does not render vague a prohibition of soliciting a meeting with the
required intent 52.
When measuring the statute by common understanding and practices and when construing the statute as generally understood, the statute in place at the time of appellant’s conviction gave a person of ordinary intelligence fair notice of the prohibited conduct: a person could not by an electronic communication solicit a minor or a person representing himself or herself to be a minor to meet the person for the purpose of sexual activity, and if a person did so, that person could
49 Id. at *12 50 See, e.g., Engleking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988); Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999). 51 Maloney, 294 S.W.3d at 628-629. 52 Id.; Collins, 479 S.W.3d 533, 542 (Tex. App.—Eastland 2015, no pet.); Wheeler, 278 S.W.3d at 96. 22 not rely on a defense that he was engaging in fantasy at the time of the offense 53.
This logic comports well with existing law on vagueness challenges. Texas
courts have previously rejected assertions that its various solicitation statutes were
void for vagueness. The solicitation language in section 33.021(c) and (d) is no
more vague or amorphous than the upheld statutes. Rather the language
necessarily reflects an important distinction drawn by previous precedent, between
the mens rea necessary to commit solicitation and the mens rea to commit the
actual crime being solicited. This distinction is crucial because the State has to
prove the former but not the latter.
For example, Texas courts have held a defendant completes the offense of
bribery when the offer or agreement is made and cannot therefore assert as a
defense that the action for which the bribe was given was never undertaken54. In
Mattias v. State 55, the Texas Court of Criminal Appeals held that a person
knowingly offering to engage in prostitution could be found guilty even if the
person lacked the intent to actually consummate the sexual act. Subsections (c)
53 Mower v. State, No. 03-14-00094-CR, 2016 Tex. App. LEXIS 3539, at *11 (Tex. App.— Austin April 7, 2016) (mem. op., not designated for publication). 54 Rath v. State, 33 S.W. 229 (Tex. Crim. App. 1895); Aaron v. State, 275 S.W.2d 693, 695 (Tex. Crim. App. 1955); Cerda v. State, 750 S.W.2d 925, 927 (Tex. App.—Corpus Christi 1988, pet. ref'd). 55 Mattias v. State, 731 S.W.2d 936, 937 (Tex. Crim. App. 1987). 23 and (d) of section 33.021 can be read similarly in that the statute as a whole
prohibits the conduct of soliciting a minor with the intent to engage in certain
sexual conduct, even if there is no intent to actually engage in that conduct. This is
why subsection (d) can forbid the defenses it does without creating the kind of
vagueness to which Appellant objects.
IV. RECENT LEGISLATIVE CHANGES DO NOT ALTER THESE
CONCLUSIONS
Appellant argues that the legislature’s decision to modify the statute56
demonstrates that the version of the statute under which Appellant has been
charged is unconstitutionally overbroad and vague57. This argument lacks force
under a simple separation of powers analysis and a review of Marbury v.
56 Appellant challenges the statute in effect at the time the offense occurred. Effective September 1, 2015, the Texas legislature changed the definition of “minor” under section 33.021(a)(1)(A) from, “ an individual who represents himself or herself to be younger than 17 years of age” to “an individual who is younger than 17 years of age,” but leaving in place 33.021(a)(1)(B), defining a minor as, “an individual whom the actor believes to be younger than 17 years of age.” The Texas legislature also removed sections 33.021(d)(2) and (d)(3) prohibiting the defenses that the actor did not intend for the meeting to occur and that the actor was engaging in fantasy at the time of the commission of the offense, but leaving in place 33.021(d)(1) prohibiting the defense that the meeting did not occur. Act of May 22, 2015, 84th Leg., R.S., ch. 61, §1, §2, 2015 Tex. Gen. Laws 1036. 57 Brief for Appellant p. 27-28. 24 Madison 58 and its progeny. The legislature makes the laws but it is the Courts that
interpret them. The fact that the legislature feared the statute was overbroad and
needed changes does not mean they were correct in so fearing or that the binding
precedent before this court is in error. The legislature may change the law out of a
belief about its efficacy as making and amending the law is their function. But the
Courts, and only the Courts, decide whether or not a law is constitutional. Here,
they have already done so.
Further, it is not clear the legislature had sufficient testimony to fully grasp
how the section 33.021 was being interpreted or enforced. The same statement of
intent upon which Appellant relies also notes that since the Court of Criminal
Appeals declared section 33.021(b) unconstitutional, “there has existed no
punishable offense for online solicitation of a minor because the ruling occurred
during the legislative interim. 59” Thus, the legislature felt the need to amend the
statute to remove the portions about which Appellant now complains because
whatever testimony they heard convinced them that the remaining portions of
section 33.021 not declared unconstitutional by Lo, left no prosecutable offense.
58 Marbury v. Madison, 5 U.S. 137 (1803)
59 See Bill Analysis S.B. 344, available at: http://www.capitol.state.tx.us/Search/DocViewer.aspx?ID=84RSB003445A&QueryText=%22S B+344%22&DocType=A 25 Why did they think that? On what testimony? Based on what arguments? The
lack of answers that would allow this Court to evaluate the reasoning that led the
legislature to amend the statute, demonstrates exactly why Appellant’s reliance on
those amendments is not at all persuasive.
V. SECTION 33.021 DOES NOT VIOLATE THE DORMANT
COMMERCE CLAUSE
In asserting section 33.021(c) runs afoul of the Dormant Commerce Clause
of the United States Constitution, Appellant relies solely, and mistakenly, on
American Libraries Ass’n v. Pataki 60. The court in Pataki did strike down a statute
criminalizing the use of communicating sexually explicit materials to minors, a
statute similar to section 33.021(b) that the Court of Criminal Appeals held
unconstitutional in Ex Parte Lo. However, that Court specifically noted that the
defendants there, “[did] not challenge the sections of the statute that . . . prohibit
adults from luring children into sexual contact by communicating with them via
the internet.61” Instead, the challenged law was meant to limit the exposure of
60 American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). 61 Id. at 179. 26 minors to harmful content 62.
Thus, both the federal court in Pataki and the Court of Criminal Appeals in
Ex Parte Lo distinguish between the purely speech oriented concerns of
distributing sexually explicit content to minors and the predatory conduct of
soliciting minors to meet with the intent of perpetrating crimes such as sexual
assault. Appellant cites no authority for the proposition that the dormant
commerce clause applies at all to section 33.021, because it does not.
Even if the dormant commerce clause did apply, section 33.021 would not
violate it. The Supreme Court of the United States has made clear that statutes that
even-handedly regulate to assert a legitimate local public interest and impact
interstate commerce only incidentally must be upheld unless they impose a clearly
excessive burden on commerce, in relation to the putative local benefits 63. If the
Court finds a legitimate local purpose, whether the law will tolerate any burden on
interstate commerce depends on the nature of the local interest and whether the
government can promote that interest just as well with a lesser impact on interstate
activities64.
62 Id. 63 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443 (1960); Pike v. Bruce Church, 397 U.S. 137, 142 (1970). 64 Pike, 397 U.S. at 142; Huron Portland Cement, 362 U.S. at 443. 27 Appellant does not articulate at all how section 33.021 treats inter and intra
state commerce differently, most likely because it clearly does not. The statute has
no regard for commercial activity at all and, as written, it matters not at all whether
or not any transaction or exchange of funds occurred when determining whether or
not the prohibited solicitation has occurred. With regard to the legitimate local
purpose, “[t]here is no question that the State has a right—indeed a solemn duty—
to protect young children from the harm that would be inflicted upon them by
sexual predators.65” The purpose of section 33.021 is thus clearly legitimate66.
Any burden that may exist is incidental in relation to the local benefit.67
Because the dormant commerce clause is so clearly inapplicable to section
33.021, this Court would do well to keep in mind the words of Supreme Court
Justice Clarence Thomas regarding this judicially created doctrine: “[it] has no
basis in the text of the Constitution, makes little sense, and has proved virtually
unworkable in application, and, consequently, cannot serve as a basis for striking
down a state statute.68” Especially in light of that context, this Court should not
65 Lo, 424 S.W.3d at 21. 66 Id.; Wheeler, 478 S.W.3d 89, 96-97 (Tex. App.—Houston [1st Dist.] 2015, pet ref’d). 67 Id. 68 McBurney v. Young, 133 S. Ct. 1709, 1721 (2013) (Thomas, J., concurring). 28 allow Appellant to jam the square peg of the dormant commerce clause into the
round hole of section 33.021(c).
Therefore, Section 33.021(c) does not violate the dormant commerce clause.
PRAYER
Wherefore, the State respectfully requests that this Court affirm the trial
court’s denial of Appellant’s pre-trial Application for Writ of Habeas Corpus.
Respectfully submitted,
/s/ John C. Prezas John C. Prezas State Bar No: 24041722 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626 (512) 943-1234 (512) 943-1255 (fax) jprezas@wilco.org
29 CERTIFICATE OF COMPLIANCE
I certify that, after allowable exclusions, the State’s brief contains 7,658 words in compliance with Rule 9.4 of the Texas Rules of Appellate Procedure.
__/s/ John C. Prezas______________ John C. Prezas
CERTIFICATE OF SERVICE
I hereby certify that on June 13, 2016, I electronically filed the foregoing document with the clerk of the court for the Texas Court of Criminal Appeals, using the efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was sent to Appellee’s appellate attorneys of record, Robert F. Maier at robert@rfmaierlaw.com and Mark Bennet at mb@ivi3.com
_/s/ John C. Prezas_______________ JOHN C. PREZAS