Ex parte Odom

• Decision Date: 20 December 2018
• Docket Number: NO. 01-18-00169-CR,01-18-00169-CR
• Citation: 570 S.W.3d 900
• Parties: EX PARTE Dennis Lee ODOM
• Court: Texas Court of Appeals

570 S.W.3d 900

EX PARTE Dennis Lee ODOM

NO. 01-18-00169-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 20, 2018

Rehearing En Banc Denied April 16, 2019

Elton Mathis, Criminal - State of Texas for The State of Texas.

Mandy Miller, Katy, for Appellant.

Panel consists of Justices Keyes, Massengale, and Brown.

Harvey Brown, Justice

In this appeal from the trial court’s denial of a pretrial application for writ of habeas corpus, we consider a constitutional challenge to the Texas Sex Offender Registration Program’s requirement that convicted sex offenders register internet identifiers. Chapter 62 of the Code of Criminal Procedure (the Sex Offender Registration Program) requires convicted sex offenders to disclose and periodically update information regarding their internet identities. TEX. CODE CRIM. PROC. art. 62.051(c)(7). Article 62.0551(a) requires registrants to report any change or establishment of new online identifiers. TEX. CODE CRIM. PROC. art. 62.0551(a).

Dennis Lee Odom, a convicted sex offender charged with failing to report online identifiers, appeals the denial of his pretrial application for writ of habeas corpus challenging Article 62.0551(a) ’s reporting requirements as a facially unconstitutional violation of the First Amendment right to freedom of speech. He asserts that Article 62.0551 is unconstitutional on its face because "[i]t results in an impermissible prior restraint on speech and is overbroad when considering the State’s interest in preventing crime."

We affirm the trial court’s denial of habeas relief.

Background

A. Sex offenders' duty to register and reporting requirements

Chapter 62 of the Texas Code of Criminal Procedure contains provisions that relate to the "Sex Offender Registration Program." TEX. CODE CRIM. PROC. Arts. 62.001 –.408. A reportable conviction or adjudication requires lifetime registration as a sex offender.

TEX. CODE CRIM. PROC . art. 62.101(a)(1). The registration program is designed to protect the public from sex offenses that could be perpetrated by convicted sex offenders. See In re M.A.H. , 20 S.W.3d 860, 864 (Tex. App.—Fort Worth 2000, no pet.) ; see also Ex parte Robinson , 80 S.W.3d 709, 715 (Tex. App.—Houston [1st Dist.] 2002), aff'd , 116 S.W.3d 794 (Tex. Crim. App. 2003) ; Reynolds v. State , 385 S.W.3d 93, 100 (Tex. App.—Waco 2012), aff'd , 423 S.W.3d 377 (Tex. Crim. App. 2014) ; Velez v. State , 14-00-01514-CR, 2002 WL 220572, at *3 (Tex. App.—Houston [14th Dist.] Feb. 14, 2002, no pet.)

Article 62.051 denotes those persons who are required to register as a sex offender. TEX. CODE CRIM. PROC. art. 62.051(a). The article also details what must be included in the sex offender registration form. Id. art. 62.051(c), (d). One requirement is that a registrant disclose "the identification of any online identifier established or used by the person." Id. art. 62.051(c)(7). An "online identifier" is:

[E]lectronic mail address information or a name used by a person when sending or receiving an instant message, social networking communication, or similar Internet communication or when participating in an Internet chat. The term includes an assumed name, nickname, pseudonym, moniker, or user name established by a person for use in connection with an electronic mail address, chat or instant chat room platform, commercial social networking site, or online picture-sharing service.

Id. art. 62.001(12).

If a person who is required to register should change "any online identifier included on the person’s registration form or establishes any new online identifier not already included on the person’s registration form," then that person is required to report the change or establishment to the appropriate authority within seven days. Id. art. 62.0551(a).

An individual commits the offense of failing to comply with sex offender registration requirements if "the person is required to register and fails to comply with any requirement of" Chapter 62. TEX. CODE CRIM. PROC. art. 62.102(a) ; see also Young. v. State , 341 S.W.3d 417, 425 (Tex. Crim. App. 2011) (" Article 62.102 is a generalized ‘umbrella’ statute that criminalizes the failure to comply with any of the registration requirements set out in Chapter 62."). Depending on certain conditions, the offense for failure to comply with the registration requirements range from state jail felony to first degree felony. See TEX. CODE CRIM. PROC. art. 62.102(b), (c).

B. The proceedings below

Odom was convicted of aggravated sexual assault of a child in 1996. He was discharged from parole in April 2015 and is required to register under the Sex Offender Registration Program. Odom verified his registration at the Waller County Sheriff’s Office in December 2015. He did not report any online identifiers.

In November 2016, an investigator became aware of an unreported Facebook account belonging to Odom that had been in existence longer than the seven-day period for reporting the change or establishment of online identifiers. See TEX. CODE CRIM. PROC. art. 62.0551(a). Odom was indicted for the felony offense of failing to comply with the Sex Offender Registration Program—specifically, failing to report his online identifiers as required by Article 62.0551(a). See TEX. CODE CRIM. PROC. art. 62.102. The indictment alleges, in pertinent part, that Odom

on or about October 28, 2016, did then and there, while knowing that he was required to register with the local law enforcement authority in the county where the defendant resided or intended to reside for more than seven days, to-wit: Waller County, because of a reportable conviction for Aggravated Sexual Assault of a Child, the defendant failed to report a change in Online Identifiers to the Waller County Sheriff’s Office.

Odom filed a pretrial application for writ of habeas corpus, challenging Article 62.0551(a) as facially unconstitutional for five reasons. At the hearing on the habeas petition, Odom’s counsel stated that Odom was moving forward on only two grounds—his First Amendment and overbreadth arguments, both of which the trial court rejected.

Thus, Odom’s two arguments preserved for our review on appeal are that Article 62.0551(a) is:

(1) "unconstitutionally overbroad on its face because it is a content-based restriction that severely criminalizes a substantial amount of speech protected by the First Amendment of the U.S. Constitution, and Article I, Section 8, of the Texas Constitution"; and

(2) "unconstitutionally overbroad on its face under the First Amendment of the U.S. Constitution, and is not narrowly tailored to promote a compelling state interest, as it prohibits a substantial amount of protected speech that is unnecessary to the protection [ ] of children."

Standard of Review

"In general, we review a trial court’s ruling on an application for writ of habeas corpus using an abuse-of-discretion standard, and we view any evidence in the light most favorable to that ruling and defer to implied factual findings supported by the record." Ex parte Flores , 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). However, whether a statute is facially unconstitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; Ex parte Flores , 483 S.W.3d at 638.

In considering a facial challenge, we usually presume "that the statute is valid and that the legislature has not acted unreasonably or arbitrarily," and the party challenging the statute bears the burden of establishing that it is unconstitutional. Ex parte Lo , 424 S.W.3d at 15. This presumption does not apply, however, if the government regulates speech based on its content. United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Content-based regulations—those that distinguish favored from disfavored speech based on the idea or message expressed—are presumptively invalid, and the government bears the burden to rebut that presumption. Ex parte Lo , 424 S.W.3d at 15.

Three-part Inquiry

Odom challenges Article 62.0551(a) as facially unconstitutional under the First Amendment, asserting that it infringes on his right to anonymous speech on the internet, "is a content-based restriction that severely criminalizes a substantial amount of speech protected by the First Amendment," and "is not narrowly tailored to promote a compelling state interest."

A facial challenge to the constitutionality of a statute attacks the statute itself rather than the statute’s application to the defendant. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). "According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a ‘substantial’ amount of protected speech ‘judged in relation to the statute’s plainly legitimate sweep.’ " Ex parte Wheeler , 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd)(quoting Ex parte Lo , 424 S.W.3d at 18, and Virginia v. Hicks , 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ); see Wagner v. State , 539 S.W.3d 298, 310 (Tex. Crim. App. 2018). "Thus, the overbreadth doctrine prohibits the government from ‘banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.’ " Wagner , 539 S.W.3d at 310 (quoting Ashcroft v. Free Speech Coalition , 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) ).

The First Amendment overbreadth doctrine "provides an exception" to the general rule that a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in a substantial number of its applications. Wagner , 539 S.W.3d at 310. However, "[t]he overbreadth doctrine is ‘strong medicine’ to be employed with hesitation and only as a last resort." Id. (quoting Ex parte Thompson , 442 S.W.3d 325, 349 (Tex. Crim. App. 2014) ). Stated differently, "a statute should not be invalidated for overbreadth merely because it is possible to...