Ex parte Barrett

• Decision Date: 17 July 2020
• Docket Number: No. 05-19-00889-CR,05-19-00889-CR
• Citation: 608 S.W.3d 80
• Parties: EX PARTE Jeffrey BARRETT Ex parte Barbara Jean Barrett
• Court: Texas Court of Appeals

608 S.W.3d 80

EX PARTE Jeffrey BARRETT

Ex parte Barbara Jean Barrett

No. 05-19-00889-CR

Court of Appeals of Texas, Dallas.

Opinion Filed July 17, 2020

Rehearing Denied September 21, 2020

Jessica Layne McDonald, Jessica McDonald & Associates, PLLC, Greenville, for Appellant Barbara Jean Barrett.

Frederick C. Shelton, Attorney at Law, Frederick C. Shelton Jr., Attorney at Law, Greenville, for Appellant Jeffrey Barrett.

Kirsta Leeburg Melton, Assistant Attorney General, Special Assistant District Attorney Hunt County, Texas, Michael Villarreal, Office of the Attorney General, Austin, Noble Dan Walker Jr., Hunt County District Attorney, Greenville, for State of Texas.

Before Justices Osborne, Partida-Kipness, and Pedersen, III

Opinion by Justice Partida-Kipness

Jeffrey Leon Barrett and Barbara Jean Barrett are charged with the offense of trafficking of children for forced labor or services. See TEX. PENAL CODE § 20A.02(a)(5)–(6). The Barretts appeal the trial court's denial of their pretrial applications for writ of habeas corpus in which they asserted facial constitutional challenges to section 20A.02.¹ Although the Barretts are represented by separate counsel in the trial court and on appeal, the trial court jointly heard and decided their pretrial applications without objection. Moreover, aside from the party names and cosmetic differences, the Barretts' briefs in this Court are substantively identical. Because the legal issues are the same, the Court consolidated the appeals on its own motion following submission of the case to the above-referenced judicial panel. After reviewing the parties' briefs and the appellate record, we affirm the trial court's orders.

BACKGROUND

In this case of first impression, the Barretts are accused of forcing their own children to work against their will and profiting from the children's labor. The indictments charge that two or more times between February 11, 2012 and September 23, 2017, the Barretts "did knowingly traffic" four children under the age of eighteen "and through force, fraud or coercion" caused the complainants "to engage in forced labor or services." The indictments further charge the Barretts did "knowingly receive a benefit from participating in a venture that involved trafficking" the four child complainants "and through force, fraud or coercion" caused the complainants "to engage in forced labor or services." The indictments charge the Barretts with the offense of continuous trafficking of persons as set out in section 20A.03 of the penal code. See TEX. PENAL CODE §§ 20A.03(a), 20A.02(a)(5)–(6).

The record is silent regarding what specific acts the State contends the Barretts engaged in to violate the statute. An appellate court, however, has the discretion to take judicial notice of adjudicative facts that are matters of public record on its own motion and for the first time on appeal. TEX. R. EVID . 201(b), (c), (f) ; Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Tex. , 878 S.W.2d 598, 600 (Tex. 1994). An appellate court may take judicial notice of a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. TEX. R. EVID . 201(b) ; Hudson v. Markum , 931 S.W.2d 336, 337 n. 1 (Tex. App.—Dallas 1996, no writ) (appellate court took judicial notice of funeral and death announcement in Dallas Morning News); In re Estate of Hemsley , 460 S.W.3d 629, 638–39 (Tex. App.—El Paso 2014, pet. denied) (taking judicial notice that it was widely reported on local, state, and national news that Hemsley was buried in El Paso on November 21, 2012 at Fort Bliss National Cemetery).

Here, local news media outlets reported the Barretts' arrests. E.g. , Brad Kellar, Greenville couple charged with trafficking, accused of using adopted kids as ‘slave labor’ , HERALD BANNER (Aug, 3, 2018), https://tinyurl.com/y824spmn² ; Amanda Jesse, Texas couple accused of using adopted children as slave labor to run puppy mill , THE DALLAS MORNING NEWS (Aug. 9, 2018), https://tinyurl.com/y7wa4teg³ . We take judicial notice that it was reported in local newspapers after the Barretts' arrests that the Barretts were arrested by Texas Department of Public Safety officers on August 2, 2018, charged with continuous human trafficking, and accused of removing their adopted children from public school and beating and forcing the children "to care for more than 100 animals in filthy conditions at a puppy mill being run behind their home." Jesse, supra ; see also Kellar, supra. We also take judicial notice that media outlets reported that officials began investigating the children's welfare shortly after Hunt County officials arrested the Barretts on charges of animal cruelty⁴ following the seizure of 117 animals from the family's home in September 2017, officials observed four of the children had "marks, bruises and open wounds in different stages of healing," and "[t]he children told authorities that the Barretts hit them with plywood, bamboo sticks, and brushes." Jesse, supra. The reports cited as sources officials from the Texas Department of Family and Protective Services and arrest-warrant affidavits. Id. ; Kellar, supra. We attach no legal significance to these facts and make no findings or conclusions regarding the truth of the State's allegations. We take judicial notice of these facts solely for the purpose of providing context to the case.

The Barretts each filed an application for pretrial writ of habeas corpus alleging the indictment failed to charge an offense because the four named complainants are the Barretts' children and it is legally impossible to charge parents with trafficking their own children for forced labor or services. The trial court denied the first writ applications, and the Barretts did not appeal those decisions.

The Barretts then each filed a second application for pretrial writ of habeas corpus contending subsections 20A.02(a)(5) and 20A.02(a)(6), the predicate offenses for the continuous trafficking charges, are unconstitutionally overbroad and vague on their face under both the United States and Texas constitutions. Specifically, the Barretts contend the challenged portions of the statute violate their freedoms of speech and association, their due process and equal protection rights, and their fundamental right as parents to make decisions concerning the care, custody, and control of their children as guaranteed by the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, sections 8, 10, and 19 of the Texas Constitution.⁵

After conducting a non-evidentiary hearing, the trial court denied relief on the Barretts' second applications. The trial court found that the Barretts conceded there are circumstances under which the forced labor provisions of the statute would be valid. As such, the trial court concluded the facial challenge failed because the Barretts did not meet their burden to show there are no circumstances in which the statute would be valid. The trial court further concluded the constitutional overbreadth doctrine applicable to free speech cases did not apply because (1) the statute regulates conduct rather than free speech, (2) the State has the power to regulate and prohibit child labor, and (3) the statute is not unconstitutionally overbroad, even applying an overbreadth analysis, because the statute does not have a substantial number of unconstitutional applications when judged in relation to its plainly legitimate sweep. As for the Barretts' vagueness complaint, the trial court concluded the statute is not unconstitutionally vague because it gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and has enough clarity to avoid arbitrary and discriminatory enforcement. The trial court also determined the statute does not chill free expression and should not be subjected to a heightened vagueness analysis. On appeal, the Barretts challenge the trial court's findings and conclusions regarding the constitutionality of the statute, including the trial court's failure to apply a heightened level of scrutiny to the statute.

STANDARD OF REVIEW

We review a trial court's ruling on a habeas application for an abuse of discretion, viewing any factual determinations in the light most favorable to the trial court's ruling. Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). When a habeas applicant challenges the facial constitutionality of a statute, that determination is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In conducting our de novo review, we start with the presumption that the statute is valid and that the legislature did not act unreasonably or arbitrarily in creating it. Id. at 14–15. The challenger bears the burden to establish the statute is unconstitutional. Id. at 15. We make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). When, however, the statute under review seeks to restrict speech based on its content, we reverse the usual presumptions of constitutionality, presume the content-based statute is invalid, and shift the burden to the State to show the statute is valid. Lo , 424 S.W.3d at 15.

APPLICABLE LAW

A defendant may raise a facial challenge to the constitutionality of a statute that defines the offense charged through a pretrial application for a writ of habeas corpus. Ex parte Thompson , 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial challenge attacks the statute itself rather than the statute's application to the defendant. Peraza , 467 S.W.3d at 514. Ordinarily, to mount a successful facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be...