Ex parte Fisher

• Decision Date: 10 December 2015
• Docket Number: No. 07–15–00098–CR,07–15–00098–CR
• Citation: 481 S.W.3d 414
• Parties: Ex Parte Oscar Calvin Fisher
• Court: Texas Court of Appeals

481 S.W.3d 414

Ex Parte Oscar Calvin Fisher

No. 07–15–00098–CR

Court of Appeals of Texas, Amarillo.

December 10, 2015

Discretionary Review Refused February 10, 2016

Jason Bujnosek, Michael S. Munk, for the State of Texas.

Mark W. Bennett, Julie Goen Panger, for Oscar Calvin Fisher.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

Mackey K. Hancock, Justice

Appellant, Oscar Calvin Fisher, appeals from the denial of a pre-trial writ of habeas corpus. By three issues,¹ appellant contends that section 33.021 of the Texas Penal Code² is: (1) unconstitutionally overbroad, in violation of the First Amendment to the United States Constitution;³ (2) unconstitutionally vague, in violation of the Fourteenth Amendment;⁴ and (3) unconstitutionally violates Article I, section 8, of the United States Constitution, also known as the Commerce Clause.⁵ We will affirm.

Factual and Procedural Background

Appellant was indicted in count one of a two-count indictment with intentionally and knowingly soliciting a minor, J1 (pseudonym), to meet appellant with the intent that J1 would engage in sexual contact, sexual intercourse, and deviate sexual intercourse with appellant. As such, count one alleges a violation of section 33.021(c) of the Texas Penal Code.

Appellant filed a pre-trial writ of habeas corpus, which the trial court denied. Appellant now brings forth his three constitutional challenges to the statute as outlined above. We will affirm.

Penal Code Provisions

Section 33.021(c) states:

A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

Additionally, section 33.021(a)(1) defines "minor" as:

(A) an individual who represents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

Finally, section 33.021(d) provides:

It is not a defense to prosecution under Subsection (c) that:

(1) the meeting did not occur;

(2) the actor did not intend for the meeting to occur; or

(3) the actor was engaged in a fantasy at the time of commission of the offense.

With these provisions in mind, we next turn to the issue of the question of the proper standard of review that the Court must use in assessing the allegations of constitutional infirmity.

Standard of Review

We review a facial challenge to the constitutionality of a statute as a question of law that we review de novo. See Ex parte Lo, 424 S.W.3d at 14–15. Traditionally, we begin with a presumption that the statute is valid and that the legislature did not act unreasonably or arbitrarily. See id. at 15. In such a review, the party challenging the constitutionality of the statute has the burden of establishing the statute's unconstitutionality. See id. We are taught that we should seek to uphold the statute as constitutional. See Peraza v. State, 467 S.W.3d 508, 514 (Tex.Crim.App.2015).

Under the traditional approach, we construe the statute according to its plain language, unless the language is ambiguous or would lead to absurd results that the legislature could not have intended. See Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008). Pursuant to the Texas Government Code, we read the words and phrases in context and construe them according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (West 2013). After doing so, if there is a reasonable construction that renders the statute constitutional, we defer to that construction. See Peraza, 467 S.W.3d at 514.

However, appellant contends that the statute at issue is an attempt by the State to restrict and punish speech based on its content and, thus, the usual presumption is reversed. See Ex parte Lo, 424 S.W.3d at 15. Content-based regulations, that is, those laws that distinguish favored from disfavored speech based on the idea expressed, are presumptively invalid, and the State bears the burden to rebut that presumption. See id. ( citing Ashcroft v. ACLU, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) ). Further, the United States Supreme Court has applied the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. See id. (citing Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). Therefore, the issue before the Court is the correct standard of review to apply in this context.

The State urges the Court to use the traditional approach to the question of the constitutionality of the statute. The State's position is anchored in the Texas Court of Criminal Appeals' decision in the Lo case. In Lo, the Texas Court of Criminal Appeals was dealing directly with a facial challenge to subsection (b) of section 33.021. See § 33.021(b) (sexually explicit communications);⁶ Ex parte Lo, 424 S.W.3d at 14. The court pointed out that the intermediate appellate court had used the wrong standard of review, the traditional presumption of validity, instead of the presumption-of-invalidity standard required when reviewing a First Amendment, content-based statute. See Ex parte Lo, 424 S.W.3d at 16. Following this explanation, the court then entered into a discussion of section 33.021(c). See id. This discussion was by way of contrast to the content-based prohibitions of section 33.021(b). See id. at 16–17. During this portion of the opinion, the court delineated what it felt was the conduct that was the gravamen of the offense under section 33.021(c), that being requesting a minor to engage in illegal sexual acts. See id. Thus, arose the conflict between conduct versus speech in determining the proper standard of review. The State essentially contends that Lo's discussion sets forth that the traditional standard of review is the proper vehicle to analyze a challenge to section 33.021(c).

Appellant, on the other hand, contends that such an analysis of whether the statute is directed at conduct versus speech is a false dichotomy. This is so, according to appellant, because the Texas Court of Criminal Appeals did not distinguish between expressive conduct and other speech. Further, according to appellant, the court's discussion of section 33.021(c) was an "off-handed remark in dicta." This would lead to the conclusion that the true analysis of appellant's contentions must be under a presumption-of-invalidity standard that the Texas Court of Criminal Appeals used in analyzing section 33.021(b).

At this juncture, it is worth noting that three of our sister intermediate appellate courts have reviewed contentions that section 33.021(c) is facially unconstitutional. The 1st District Court of Appeals undertook such a challenge in the case of Maloney v. State, 294 S.W.3d 613 (Tex.App.–Houston [1st Dist.] 2009, no pet.). The Maloney court applied the traditional standard of review, that is, a presumption that the statute is constitutional. See id. at 626. After applying the traditional standard of review, the court concluded that the statute was not overbroad or unconstitutionally vague. See id. at 628–29. As noted above, there was no petition for discretionary review to the Texas Court of Criminal Appeals. Maloney was decided before the Texas Court of Criminal Appeals handed down the Lo opinion.

After the Maloney opinion, the 4th District Court of Appeals handed down an opinion in Ex parte Zavala, 421 S.W.3d 227 (Tex.App.–San Antonio 2013, pet. ref'd). As in this case, Zavala was an appeal from the denial of a pre-trial writ of habeas corpus. Id. at 230. Based upon the Texas Court of Criminal Appeals' decision in Lo, the Zavala court applied the traditional standard of review and upheld the constitutionality of section 33.021(c). See id. at 231–32. As noted in the original citation, the Texas Court of Criminal Appeals refused the petition for discretionary review.

Next, the 9th District Court of Appeals handed down its opinion in Ex parte Victorick, No. 09–13–00551–CR, 2014 WL 2152129, 2014 Tex.App. LEXIS 5429 (Tex.App.–Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication), cert. denied, Victorick v. Texas, ––– U.S. ––––, 135 S.Ct. 1557, 191 L.Ed.2d 638 (2015). Victorick was an appeal of a pre-trial writ of habeas corpus. Again, our sister court applied the traditional standard of review to the facial challenge to section 33.021(c). See id. , 2014 WL 2152129, at *1–2, 2014 Tex.App. LEXIS 5429, at *4–6. When discussing the issue of conduct versus speech, the Victorick court again relied upon the Texas Court of Criminal Appeals' decision in Lo. See id. , 2014 WL 2152129, at *2–3, 2014 Tex.App. LEXIS 5429, at *7–8. However, this was not the only support for the conduct analysis. The Victorick court also relied upon the United States Supreme Court case of Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), for the proposition that if the statute punishes conduct rather than speech, the courts apply a "rational basis" level of review to determine if the statute bears a rational relationship to a legitimate state purpose. Ex parte Victorick, 2014 WL 2152129, at *1–2, 2014 Tex.App. LEXIS 5429, at *4.

The Victorick court upheld the constitutionality of section 33.021(c) and the Texas Court of Criminal Appeals refused the petition for discretionary review.

Finally, the 1st District Court of Appeals issued its opinion in Ex parte Wheeler, , 478 S.W.3d 89 (Tex.App.–Houston [1st Dist.] 2015, pet. filed). In Wheeler, the court applied the traditional standard of review, citing the Lo opinion for authority and upheld the constitutionality of section 33.021(c). See id. 478 S.W.3d at 92–93, 94–96, 96–97.

Thus, at this juncture, each court that has considered...