Ex parte Moy, 14–16–00420–CR
| Decision Date | 09 May 2017 |
| Docket Number | NO. 14–16–00420–CR,14–16–00420–CR |
| Citation | 523 S.W.3d 830 |
| Parties | EX PARTE Dillon Travis MOY |
| Court | Texas Court of Appeals |
L. T. "Butch" Bradt, Sugar Land, TX, for Appellant.
Jason Travis Bennyhoff, Richmond, TX, for State.
Panel consists of Justices Christopher, Jamison, and Donovan.
Appellant Dillon Travis Moy, who was indicted for the felony offense of online solicitation of a minor under Texas Penal Code section 33.021(c), challenges in eight issues the constitutionality of the statute. Appellant filed a pretrial application for writ of habeas corpus in which he asserted that the online solicitation statute is unconstitutional on its face.1 In the writ application, appellant argued that the statute (1) is unconstitutionally overbroad in violation of the First Amendment; (2) is unconstitutionally vague in violation of the Fifth and Fourteenth Amendments; and (3) unconstitutionally burdens interstate commerce in violation of the Dormant Commerce Clause by attempting to regulate the internet. The trial court denied relief.
On appeal, appellant brings the constitutional challenges that he raised below and others. Concluding that appellant did not preserve error as to the constitutional challenges brought for the first time on appeal, the statute is not overbroad or vague, and the statute does not unduly burden interstate commerce, we affirm.
Under Texas Penal Code section 33.021(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.
At the time of appellant's indictment on June 30, 2015, "minor" was defined as "an individual who represents himself or herself to be younger than 17 years of age" or "an individual whom the actor believes to be younger than 17 years of age."2 Act of June 18, 2005, 79th Leg., R.S. ch. 1273 § 1, 2005 Tex. Sess. Laws 1291 (amended 2015) (current version at Tex. Penal Code § 33.021(a)(1) ). Also at the time of appellant's indictment, it "was not a defense to prosecution under Subsection (c) that ... the actor did not intend for the meeting to occur." Act of June 18, 2005, 79th Leg., R.S. ch. 1273 § 1, 2005 Tex. Sess. Laws 1291 (amended 2015) (current version at Tex. Penal Code § 33.021(d) ).3 An offense under this section is a second degree felony. Id. § 33.021(f).
We first address whether appellant preserved all of his appellate issues for our review. A defendant may not raise a facial challenge to the constitutionality of a statute for the first time on appeal.4 Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). And a reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State , 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
In his pretrial application for writ of habeas corpus, appellant challenged the constitutionality of section 33.021(c) under the United States Constitution on the bases of (1) overbreadth, as a content-based restriction of speech in violation of the First Amendment; (2) vagueness, in violation of the due process clauses in the Fifth and Fourteenth Amendments; and (3) undue restriction of commerce, in violation of the Dormant Commerce Clause. On appeal, appellant brings several additional constitutional challenges to the statute: (1) overbreadth, in violation of the due process clauses in the Fifth and Fourteenth Amendments; (2) overbreadth and vagueness under the Texas Constitution; and (3) a strict liability offense, in violation of due process under the United States and Texas Constitutions.
Appellant may not raise facial constitutional challenges to a statute for the first time on appeal. See Karenev , 281 S.W.3d at 434 ; Ford , 305 S.W.3d at 532. Accordingly, appellant has forfeited his constitutional challenges that were not raised below. We address only appellant's constitutional challenges that were raised below.5
We now address appellant's facial constitutional challenges to the statute raised below on grounds of overbreadth, vagueness, and undue restriction of commerce. Whether a statute is unconstitutional on its face is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14–15. Ordinarily, the party challenging the statute carries the burden to establish the statute's unconstitutionality. Id. at 15.
Appellant argues in his second issue that section 33.021(c) is a content-based regulation that criminalizes a "substantial amount of harmless speech." We address that issue first because it determines our standard of review.
The First Amendment—which prohibits laws "abridging the freedom of speech"—limits the government's power to regulate speech based on its substantive content. U.S. Const. amend. I ; Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) ; State v. Stubbs , 502 S.W.3d 218, 224 (Tex. App.–Houston [14th Dist.] 2016, pet. ref'd). Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed. Lo , 424 S.W.3d at 15 ; Stubbs , 502 S.W.3d at 224. These regulations operate to restrict particular viewpoints or public discussion of an entire topic or subject matter. Stubbs , 502 S.W.3d at 224 (citing Reed , 135 S.Ct. at 2229–30 ). In these situations, the usual presumption of constitutionality is reversed; the content-based statute is presumed invalid, and the State bears the burden to rebut this presumption.6 Lo , 424 S.W.3d at 15 ; Stubbs , 502 S.W.3d at 224.
Based on his premise that the statute is a content-based restriction on protected speech, appellant asserts that we must presume the statute invalid and the State has the burden to demonstrate its validity. See United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (). The State contends that the statute restricts conduct—not speech—and we must presume the statute is valid.
The Court of Criminal Appeals recently acknowledged that section 33.021(c) regulates "the conduct of requesting a minor to engage in illegal sexual acts." Lo , 424 S.W.3d at 17 (emphasis in original). As the court noted, section 33.021(c) is a solicitation statute, the likes of which have been routinely upheld because offers to engage in illegal transactions such as sexual assault of minors are categorically excluded from First Amendment protection. Id. at 16–17 ; see also Ex parte Wheeler , 478 S.W.3d 89, 94 (Tex. App.–Houston [1st Dist.] 2015, pet. ref'd).
Appellant acknowledges this language in Lo but contends it is dicta and not binding on this court. However, judicial dicta from the Court of Criminal Appeals, as a deliberate and unequivocal declaration of criminal law, is binding on this court as an intermediate court of appeals. Murray v. State , 261 S.W.3d 255, 257 (Tex. App.–Houston [14th Dist.] 2008), aff'd , 302 S.W.3d 874 (Tex. Crim. App. 2009) ; McLendon v. State , 167 S.W.3d 503, 507 (Tex. App.–Houston [14th Dist.] 2005, pet. ref'd).
Our sister court recently held Lo compels the conclusion that the usual presumption of constitutionality applies to section 33.021(c), as it regulates conduct and speech that is not protected under the First Amendment. See Wheeler , 478 S.W.3d at 93–94. Lo was charged under section 33.021(b), which prohibited a person from communicating online in a sexually explicit manner with a minor if the person had the intent to arouse and gratify anyone's sexual desire. Lo , 424 S.W.3d at 17 ; see also Wheeler , 478 S.W.3d at 93. The Court of Criminal Appeals noted that section 33.021(b) restricted and punished speech based on its content. Lo , 424 S.W.3d at 17. The high court further noted that section 33.021(c)"provides an excellent contrast" because the gravamen of the offense is the conduct of soliciting sexual conduct from minors. Id. at 16–17 ; see also Wheeler , 478 S.W.3d at 93–94. The court contrasted section 33.021(b) as "very different [because it] prohibits and punishes speech based on its content." Lo , 424 S.W.3d at 17 ; see also Wheeler , 478 S.W.3d at 94.
We agree with our sister court that Lo requires us to conclude that section 33.021(c) regulates conduct and only unprotected speech. See Wheeler , 478 S.W.3d at 93–94. We therefore presume the statute's validity and place the burden of demonstrating unconstitutionality on appellant. See id. at 94 (citing numerous cases). We overrule appellant's second issue.
In his first and fifth issues, appellant challenges, among other things, the constitutionality of section 33.021(c) as overbroad under the First Amendment. A statute is facially invalid under the First Amendment's overbreadth doctrine if it prohibits a "substantial" amount of protected speech "judged in relation to the statute's plainly legitimate sweep." Lo , 424 S.W.3d at 18 (quoting Virginia v. Hicks , 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ); see also Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The overbreadth claimant bears the burden of demonstrating from the text of the law and from actual fact that substantial overbreadth...
To continue reading
Request your trial