Ex parte Nelson

• Decision Date: 26 November 2019
• Docket Number: NO. 01-19-00325-CR,01-19-00325-CR
• Parties: EX PARTE JOSHUA JERMAINE NELSON, Appellant
• Court: Texas Court of Appeals

EX PARTE JOSHUA JERMAINE NELSON, Appellant

NO. 01-19-00325-CR

Court of Appeals For The First District of Texas

November 26, 2019

On Appeal from the 458th District Court Fort Bend County, Texas

Trial Court Case No. 15-DCR-068407

MEMORANDUM OPINION

Appellant, Joshua Jermaine Nelson, appeals from the trial court's denial of his amended application for a writ of habeas corpus. In eight issues, appellant contends that the trial court erred in denying him habeas relief.

We affirm.

Background

A Fort Bend County Grand Jury issued a true bill of indictment, alleging that appellant, on or about November 19, 2014, "did then and there, over the Internet, or by electronic mail, or by a commercial online service, knowingly solicit [the complainant], an individual who represented himself to be younger than [seventeen] years of age or an individual whom [appellant] believed to be younger than [seventeen] years of age, and not the spouse of [appellant], to meet [appellant] with the intent that [the complainant would] engage in sexual contact or sexual intercourse with [appellant]." Appellant pleaded not guilty to the felony offense of online solicitation of a minor as alleged in the indictment.¹

On April 22, 2019, appellant filed his amended application for a writ of habeas corpus, asserting that he was entitled to habeas relief because the statute under which he is indicted—Texas Penal Code section 33.021(c)—is unconstitutional and void. Appellant asserted:

• "Section 33.021 is unconstitutionally overbroad on its face under the First Amendment [to the United States Constitution] because it is a content-based restriction that severely criminalizes a substantial amount of speech protected under the First Amendment";

• "Section 33.021 is unconstitutionally vague under the Fifth and Fourteenth Amendments [to the United States Constitution] because men of common intelligence must necessarily guess at its meaning and differ as to its application";• "Section 33.021 violates the Dormant Commerce Clause [of the United States Constitution] because it unduly burdens interstate commerce by attempting to place regulations on the entirety of the Internet"; and

• "Section 33.021 allows law enforcement to entrap persons such as [appellant] and is therefore unconstitutional as applied."

The trial court denied appellant's amended application for habeas relief.

Standard of Review

We review a trial court's ruling on a pretrial application for a writ of habeas corpus for an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In conducting our review, we view the facts in the light most favorable to the trial court's ruling and defer to the trial court's implied findings that the record supports. See Washington, 326 S.W.3d at 704 (citing Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006)). The applicant has the burden to prove his claims by a preponderance of the evidence. Id. at 706; Ex parte Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref'd). We will uphold the trial court's judgment on any theory of law applicable to the case. Ex parte Evans, 410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref'd).

We review the constitutionality of a criminal statute de novo, as a question of law. See Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. 2013); Ex parte Wheeler, 478 S.W.3d 89, 93 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Ordinarily, whenreviewing the constitutionality of a statute, we presume that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. See Ex parte Lo, 424 S.W.3d at 14-15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Wheeler, 478 S.W.3d at 93. If a statute can be construed in two ways, one of which sustains its validity, we apply the interpretation that sustains its validity. Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). The party challenging the statute carries the burden of establishing its unconstitutionality. See Ex parte Lo, 424 S.W.3d at 15; Rodriguez, 93 S.W.3d at 69. We must uphold the statute if we can determine a reasonable construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979).

Habeas Relief

In his eight issues, appellant argues that the trial court erred in denying him habeas relief because Texas Penal Code section 33.021(c) is "unconstitutionally overbroad" in violation of the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, sections 8 and 19 of the Texas Constitution; "unconstitutional on its face" in violation of the First Amendment to the United States Constitution and Article I, section 8 of the Texas Constitution "as it is a content-based [regulation] that severely criminalizes a substantial amount of harmless speech between adults"; "unconstitutionally vague and overbroad" inviolation of the United States Constitution and the Texas Constitution; unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the "Due Course of Law provision of the Texas Constitution" as it "fails to require the State to prove that [a]ppellant had a culpable mental state . . . relating to the complain[ant's] . . . age" and it "fails to recognize the affirmative defense based upon [a]ppellant's reasonable belief that the complain[ant] . . . was [seventeen] years of age or older at the time of the alleged offense"; and unconstitutional in violation of the Dormant Commerce Clause of the United States Constitution. See U.S. CONST. art. I, § 8, cl. 3; U.S. CONST. amends. I, V, XIV; TEX. CONST. art. I, §§ 8, 19.

Texas Penal Code section 33.021(c) defines the offense of online solicitation of a minor as follows:

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.

TEX. PENAL CODE ANN. § 33.021(c). At the time of appellant's indictment, "[m]inor" was defined as "an individual who represents himself . . . to be younger than [seventeen] years of age" or "an individual whom the actor believes to beyounger than [seventeen] 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 ANN. § 33.021(a)(1)). And it was not "a defense to prosecution under [section 33.021(c)] that . . . the actor did not intend for the meeting to occur."³ 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 ANN. § 33.021(d)).

A. Waiver

In a portion of his fifth issue, as well as, his third, fourth, and seventh issues, appellant argues that the trial court erred in denying him habeas relief because Texas Penal Code section 33.021(c) violates certain provisions of the Texas Constitution. Yet, appellant, in his amended application for a writ of habeas corpus, only argued to the trial court that he was entitled to habeas relief because Texas Penal Code section 33.021(c) "violates the First Amendment, the Due Process Clause, and the Dormant Commerce Clause" of the United States Constitution. He did not assert that section 33.021(c) violates the Texas Constitution.

To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires a complaining party to make a specific objection or complaint and obtain a ruling on it before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Ex parte James, Nos. 01-05-00282-CR, 01-05-00480-CR to 01-05-00485-CR, 2005 WL 1540791, at *3 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication) ("[A]ppellant did not preserve th[e] issue for [appellate] review because he did not raise th[e] complaint to the [trial] court in his applications for writs of habeas corpus or at the hearing."). And issues on appeal must track the arguments made in the trial court. See Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd); see also Ex parte Letizia, No. 01-16-00808-CR, 2019 WL 610719, at *4 (Tex. App.—Houston [1st Dist.] Feb. 14, 2019, pet. ref'd) (mem. op., not designated for publication) (appellant did not preserve argument for appellate review because he did not raise it in trial court in his application for writ of habeas corpus). "Where a trial [complaint] does not comport with the issue raised on appeal, [an] appellant . . . preserve[s] nothing for review." Wright, 154 S.W.3d at 241; see also Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (appellate court should not address merits of issue not preserved for appeal); Ex parte Evans, 410 S.W.3d at 485 (declining to consider argument that appellant did not raise in application for writ of habeas corpus in trial court); State v. Romero, 962 S.W.2d 143, 144 (Tex.App.—Houston [1st Dist.] 1997, no pet.). Because appellant did not argue in his amended application for a writ of habeas corpus that he was entitled to habeas relief because Texas Penal Code section 33.021(c) violates certain provisions of the Texas Constitution, we hold that appellant has not preserved for our review his third, fourth, and seventh issues, as well as, the portion of his fifth issue in which asserts that section 33.021(c) is "unconstitutionally vague and overbroad under . . . [the] Texas Constitution[]."⁴ See TEX. R. APP. P. 33.1(a); Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.—Houston [1st Dist.] 2017, no pet.) ("In reviewing an order denying habeas relief, an intermediate court of...