Ex parte Ingram

• Decision Date: 28 June 2017
• Docket Number: NO. PD-0578-16,PD-0578-16
• Parties: EX PARTE Adam Wayne INGRAM, Appellant
• Court: Texas Court of Criminal Appeals

533 S.W.3d 887

EX PARTE Adam Wayne INGRAM, Appellant

NO. PD-0578-16

Court of Criminal Appeals of Texas.

Delivered: June 28, 2017

Rehearing Denied September 27, 2017

ATTORNEYS FOR APPELLANT: Donald H. Flanary III, Goldstein, Goldstein & Hilley, 310 S. St. Mary's St., 29th Floor Tower Life Bldg., San Antonio, TX 78205.

ATTORNEYS FOR THE STATE: Patrick Ballantyne, Assistant Criminal District Attorney, 101 W. Nueva St., 7th Floor, San Antonio, TX 78205, and Stacey Soule, Austin, TX.

Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Keel, and Walker, JJ., joined.

This is an appeal from the denial of relief on a pretrial habeas application. In it, appellant raises various facial challenges to the constitutionality of the pre-2015 version of subsection (c) of the "Online Solicitation of a Minor" statute. Some of these challenges depend on the interaction between subsection (c), which proscribes the offense, and subsection (d), which provides that certain facts are "not a defense to prosecution." Appellant also contends that subsection (a)'s definition of "minor," which includes "an individual who represents himself or herself to be younger than 17 years of age," makes subsection (c) overbroad because the definition results in penalizing constitutionally protected roleplay between adults. Appellant also contends that subsection (c) places an undue and impermissible burden on interstate commerce in violation of the United States Supreme Court's Dormant Commerce Clause jurisprudence. We conclude that appellant's claims are without merit because (1) constitutional attacks on free-standing anti-defensive issues are not cognizable on pretrial habeas, (2) without the anti-defensive issues and under a narrowing construction of the word "represents," subsection (c) is not unconstitutionally overbroad, and (3) subsection (c) does not violate the Supreme Court's Dormant Commerce Clause jurisprudence. Consequently, we affirm the judgments of the courts below.

I. BACKGROUND

Appellant was indicted for the offense of "Online Solicitation of a Minor" under the pre-2015 version of Penal Code § 33.021(c). The indictment provided that, on or about May 21, 2013, appellant,¹

with the intent that [the complainant], a minor, would engage in sexual contact, sexual intercourse, and deviate sexual intercourse with [the complainant], did knowingly solicit over the internet by electronic mail or text message or other electronic message service or system, or through a commercial online service, [complainant] to meet [appellant].

Appellant filed a pretrial habeas application, raising various facial constitutional challenges to the statute. The trial court denied the application, and appellant filed an interlocutory appeal. Addressing and rejecting all of appellant's constitutional complaints on the merits, the court of appeals affirmed the trial court's order denying habeas relief.²

II. ANALYSIS

A. The Statute

Before September 1, 2015, § 33.021 provided in relevant part:

(a) In this section:

(1) "Minor" means:

(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.

* * *

(c) 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.

* * *

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

* * *

(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.³

B. Cognizability

Appellant contends that Subsections (d)(2) and (d)(3) render the online solicitation statute unconstitutional for a variety of reasons. He claims that the provisions impermissibly negate the mens rea requirement of the statute in violation of the right to due process, deny a defendant his Sixth Amendment right to present a defense, help render the online solicitation statute unconstitutionally overbroad in violation of the First Amendment, and render the statute unconstitutionally vague under the Fifth and Fourteenth Amendments.⁴ We conclude that none of these complaints are cognizable in a pretrial habeas proceeding.

Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.⁵ This remedy is reserved "for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review."⁶ Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant's favor, would not result in immediate release.⁷ Moreover, pretrial habeas is generally unavailable "when the resolution of a claim may be aided by the development of a record at trial."⁸ The only recognized exception to the general prohibition against record development on pretrial habeas is when the constitutional right at issue includes a right to avoid trial, such as the constitutional protection against double jeopardy.⁹

Ordinarily, a facial challenge to the statute defining the offense can be brought on pretrial habeas,¹⁰ and we have specifically recognized the ability to bring an overbreadth challenge.¹¹ But, as we shall see, anti-defensive issues pose complications that we have not before addressed, and we ultimately conclude that a challenge to a freestanding anti-defensive issue is not cognizable, even when it is a facial challenge.

The "law applicable to the case" in a criminal prosecution always includes the elements of the charged offense, but there are other types of issues, such as a defense, that become law applicable to the case if raised by the evidence. On occasion, evidence may raise an issue that is anti-defensive—an issue that benefits the State's position in the case but is not something the indictment required the State to prove from the outset. Perhaps the most common anti-defensive issue is voluntary intoxication: "Voluntary intoxication does not constitute a defense to the commission of a crime."¹² An instruction on the non-defensive nature of voluntary intoxication is appropriate when "there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions."¹³ We think this pronouncement of the standard for when to submit an anti-defensive issue is not unique to the issue of voluntary intoxication. Because an anti-defensive issue is not something that has to be alleged in the indictment, and is not part of the State's prima facie case, an instruction on such an issue is appropriate only when some evidence at trial raises it. Only at that time does an anti-defensive issue become law applicable to the case.

It follows that an anti-defensive issue is not law applicable to the case at the pretrial habeas stage. That is a problem for appellant because, even in the First Amendment context, a defendant has standing to challenge a statute only if it is being invoked against him.¹⁴ At this juncture, subsections (d)(2) and (d)(3) have not been invoked in appellant's case, and, therefore, he cannot meet the basic standing requirement necessary to obtain relief.

Of course, it is also true that defensive issues (e.g., defenses and affirmative defenses) are not law of the case until raised by the evidence,¹⁵ yet they may sometimes be taken into consideration when determining whether a statute is unconstitutionally vague or overbroad.¹⁶ But that is because a defensive issue might narrow the scope of a statute that has been invoked against the defendant. That does not mean that a defendant can raise a pretrial habeas challenge to provisions that arguably broaden the scope of a statute when those provisions have not been shown to be applicable to his case. If an anti-defensive issue is merely a limitation on the scope of a defensive issue,¹⁷ then it may be relevant to how much the defensive issue narrows the statutory provisions proscribing the offense with which the defendant was charged. But that is not the case here because the anti-defensive issues are freestanding—they are not attached to a defensive issue.

Standing concerns aside, the fact that a freestanding anti-defensive issue does not become law applicable to the case until raised by the evidence means that a constitutional challenge involving such an issue is one that requires record development to substantiate. As we have explained above, unless the defendant relies upon a constitutional right that includes a right to avoid trial,¹⁸ developing the record at a pretrial habeas proceeding is inappropriate, and so it follows that the proper remedy would be to litigate the constitutionality of a freestanding anti-defensive issue at trial if the issue is raised by the evidence at trial. Appellant's situation is similar in relevant respects to the in pari materia claim alleged on pretrial habeas by the defendant in Ex parte Smith.¹⁹ In that case, the defendant claimed a due process right to be prosecuted under a special statute that he claimed was in pari materia with the statute under which he was charged.²⁰ We held that such a claim was "not yet ripe for review" because a "decision on the in pari materia claim would be premature before the State has had an opportunity to develop a complete factual record during a trial," and we were not aware of any authority that would require the State to prove its case before that time."²¹

Moreover, a determination that a freestanding anti-defensive issue is unconstitutional(in combination with the statute proscribing the offense)—even on its face—would not terminate a defendant's prosecution and, so, would not result in immediate release. If and...