Ex parte Fujisaka

Citation472 S.W.3d 792
Decision Date12 August 2015
Docket NumberNo. 05–15–00355–CR,05–15–00355–CR
Parties Ex parte Jeffrey Wayne Fujisaka
CourtCourt of Appeals of Texas

F. Clinton Broden, Dallas, TX, for appellants.

John Rolater, Greg Willis, Wes Wynne, McKinney, TX, for appellees.

Before Justices Fillmore, Myers, and Evans

OPINION

Opinion by Justice Fillmore

Jeffrey Wayne Fujisaka is charged with four counts of knowingly inducing E.D., a child under eighteen years old, to engage in sexual conduct or a sexual performance consisting of touching her genitals with her hand. See TEX. PENAL CODE ANN. § 43.25(b) (West 2011). Appellant filed a pretrial application for writ of habeas corpus challenging the constitutionality of section 43.25(b).1 The trial court denied relief on appellant's application. In his sole issue on appeal, appellant contends section 43.25 is facially unconstitutional under the First Amendment to the United States Constitution.2 We affirm.

STANDARD OF REVIEW AND APPLICABLE LAW

A defendant may file a pretrial application for a writ of habeas corpus to raise a facial challenge to the constitutionality of a statute that defines the offense charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex.Crim.App.2014). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.2013). 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). The challenger normally bears the burden to establish the statute is unconstitutional. Lo, 424 S.W.3d at 15.

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 valid or that the statute lacks any plainly legitimate sweep. Id. ; see also United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). However, in the case of statutes that encroach upon activity protected by the First Amendment, the challenger may also bring a "substantial overbreadth" challenge. Under such a facial challenge, a statute may be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Stevens, 559 U.S. at 473, 130 S.Ct. 1577 ; see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (overbreadth doctrine prohibits government from banning unprotected speech if substantial amount of protected speech prohibited or chilled in process). This type of facial challenge may be made when a statute restricts or punishes speech based upon its content. Lo, 424 S.W.3d at 15.

A law is "content-based" if it distinguishes between favored and disfavored speech on the basis of the views expressed or if it is necessary to review the content of the speech in order to determine whether the speaker violated the law. Thompson, 442 S.W.3d at 345. A content-based regulation that distinguishes favored from disfavored speech based on the views expressed is presumptively invalid, and the government bears the burden to rebut the presumption. Lo, 424 S.W.3d at 15. We apply the "most exacting scrutiny to regulations that suppress, disadvantage, or impose different burdens on speech because of its content." Id. To satisfy a strict scrutiny review, a statute that regulates speech must be necessary to serve a compelling state interest and be narrowly drawn. Id. To be considered narrowly drawn, a law must employ the least restrictive means to achieve its goal and there must be a close nexus between the state's compelling interest and the restriction. Id. The statute does not survive strict scrutiny review if there is a less restrictive means of meeting the state's compelling interest that would be at least as effective as the statute under review. Id. at 15–16. However, a statute may not be held overbroad merely because it is possible to conceive of some impermissible applications. United States v. Williams, 553 U.S. 285, 303, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

ANALYSIS

The first step in an overbreadth analysis is to determine whether the statute reaches a substantial amount of activity protected by the First Amendment. City of Houston, Tex. v. Hill, 482 U.S. 451, 458–59, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). If the law does not reach a substantial amount of constitutionally protected activity, then the overbreadth challenge fails. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). We begin our analysis by examining what the statute covers. Stevens, 559 U.S. at 474, 130 S.Ct. 1577.

Section 43.25(b), entitled "Sexual Performance by a Child," states:

A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

TEX. PENAL CODE ANN. § 43.25(b). A "sexual performance" under the statute means "any performance or part thereof that includes sexual conduct by a child younger than 18 years of age." Id. § 43.25(a)(1). A "performance" means "any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons." Id. § 43.25(a)(3). "Sexual conduct," within the meaning of the statute, is "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola." Id. § 43.25(a)(2).3

Appellant contends section 43.25(b) is overbroad, and thus facially unconstitutional under the First Amendment, because it regulates the content of speech, should be subjected to strict scrutiny, and cannot survive strict scrutiny review because it was not narrowly drawn to achieve the State's compelling interest to protect minors from sexual abuse. In pressing his facial challenge, appellant does not assert that "employing" a child to engage in sexual conduct or a sexual performance constitutes any constitutionally protected activity. Instead, he argues the statute's prohibition on "authorizing" and "inducing" a child to engage in sexual conduct or a sexual performance violates the First Amendment because it prohibits a person from authorizing or persuading another to engage in lawful activity.

A statute that regulates only conduct, not speech or any other expressive activity which is protected by free speech guarantees, does not trigger any protection under the First Amendment. See Arnold v. State, 853 S.W.2d 543, 545–46 (Tex.Crim.App.1993) ; see also Lo, 424 S.W.3d at 16–17 (noting statutes prohibiting online solicitation of minor routinely held constitutional because gravamen of offense is conduct of requesting minor to engage in illegal sexual acts). As the Supreme Court has explained:

Facial overbreadth ... attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citations omitted).

The State contends section 43.25(b) regulates only conduct and does not implicate First Amendment rights at all. Conversely, appellant argues the conduct of "authorizing" and "inducing" a child to engage in sexual conduct or a sexual performance is usually accompanied by speech, one may prove inducement from "persuasion" alone, and thus "a large part" of what section 43.25 regulates is, in fact, speech. Appellant does not cite any authority holding that authorizing or inducing a child to engage in sexual conduct or a sexual performance constitutes a form of constitutionally protected speech, but he attempts to support his position by analogy. See Hill, 482 U.S. at 466, 107 S.Ct. 2502 (ordinance making it unlawful to "interrupt" police officers in performance of their duties unconstitutional because it criminalized substantial amount of constitutionally protected speech); Loper v. N.Y.C. Police Dept., 999 F.2d 699, 704–06 (2d Cir.1993) (statute prohibiting loitering in public place for purpose of "begging" violates First Amendment because speech frequently accompanies begging); State v. Melchert–Dinkel, 844 N.W.2d 13, 23–24 (Minn.2014) (portion of statute prohibiting advising or "encouraging" another to commit suicide violated First Amendment). Appellant contends "inducing" a child to engage in sexual conduct or a sexual performance involves speech as much as "interrupting" a police officer, "begging" in a public place, or "encouraging" another to commit suicide.

Neither "authorizes" nor "induces" is defined in the penal code. In the...

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