Ex parte Wheeler, 01–14–00868–CR

• Decision Date: 29 September 2015
• Docket Number: No. 01–14–00868–CR,01–14–00868–CR
• Citation: 478 S.W.3d 89
• Parties: Ex parte Stuart Oland Wheeler
• Court: Texas Court of Appeals

478 S.W.3d 89

Ex parte Stuart Oland Wheeler

No. 01–14–00868–CR

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

Opinion issued September 29, 2015

Discretionary Review Refused February 3, 2016

Mark W. Bennett, Houston, TX, for Appellant.

Travis J. Koehn, District Attorney, Randy N. Robinson, Assistant District Attorney, Bellville, TX, for State.

Panel consists of Justices Jennings, Higley, and Huddle.

OPINION

Rebeca Huddle, Justice

Stuart Oland Wheeler was indicted on the felony charge of online solicitation of a minor under Texas Penal Code section 33.021(c). See Tex. Pen. Code Ann. § 33.021(c) (West 2014). Wheeler filed a pretrial application for a writ of habeas corpus in which he asserted that subsections 33.021(c) and (d) are facially unconstitutional. Noting that the Court of Criminal Appeals invalidated subsection (b) of the same statute as an overbroad content-based restriction on protected speech, see Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App.2013), Wheeler argued that the surviving subsections (c) and (d) are likewise unconstitutional. In particular, Wheeler contends that subsections (c) and (d), in combination, (1) violate the First Amendment of the United States Constitution because they are overbroad content-based restrictions that criminalize protected speech between consenting adults, (2) are contradictory and unconstitutionally vague, and (3) violate the Dormant Commerce Clause because they unduly restrict interstate internet communication. Wheeler appeals the trial court's denial of the application. We affirm.

Penal Code Section 33.021

Wheeler was indicted under Penal Code section 33.021(c), which states:

(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.

TEX. PEN. CODE ANN. § 33.021(c) (West 2014). Section 33.02(a)(1) defines "minor" as:

(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.

Id. § 33.021(a)(1). And subsection (d) provides that it is not a defense to prosecution under subsection (c) that:

(1) the meeting did not occur;

(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.

Id. § 33.021(d).

The Parties' Arguments

Wheeler contends that these provisions are facially unconstitutional in three respects. First, he asserts that they are overbroad because they impermissibly restrict protected speech between persons engaged in "ageplay," which Wheeler asserts is a prevalent practice in which consenting adults roleplay as children for their sexual gratification. According to Wheeler, the statute is overbroad because it permits the conviction of an ageplayer who speaks solicitant words to "the object of his sexual attention, who ‘represents himself’ to be a child"—and thus meets the statute's definition of "minor"—but is not in fact a child. Wheeler also contends that the statute is overbroad because subsection (d) both (1) eliminates the specific intent requirement of (c) and (2) precludes an ageplayer from defending himself on the basis that the solicitation was a mere fantasy.

Second, Wheeler argues that the statute is unconstitutionally vague because subsection (c) purports to require proof of specific intent—that the defendant intended to meet and have sexual contact with the minor at the time of the solicitation—only to have subsection (d) "eliminate[ ] the intent element" of (c). Wheeler asserts that this contradiction prevents persons of ordinary intelligence from understanding the prohibited conduct.

Finally, Wheeler asserts that the statute violates the Dormant Commerce Clause because it unduly burdens interstate commerce by "attempting to place regulations on [i]nternet users everywhere."

Based on his premise that the statute is a content-based restriction on protected speech, Wheeler asserts that we must presume the statute invalid and that the State has the burden to demonstrate its validity under the categorical approach employed by the United States Supreme Court in Alvarez and Stevens. See United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) ; United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Alternatively, he argues that, at a minimum, we must subject the statute to strict scrutiny.

The State contends that Penal Code section 33.021(c) restricts conduct and not merely speech. Therefore, argues the State, we must presume that the statute is valid and subject it only to rational basis review. The State contends that the statute bears a rational relationship to the legitimate state interest in protecting minors from sexual predators and thus passes constitutional muster. Alternatively, the State argues that if the combination of (c) and (d) is unconstitutional, we should uphold subsection (c), under which Wheeler was indicted, and strike the offending portions of subsection (d).

Standard of Review

Whether a statute is facially unconstitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d at 14. When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Id. at 14–15. The party challenging the statute normally carries the burden to establish the statute's unconstitutionality. Id. at 15.

A different standard of review applies, however, if the challenged statute seeks to restrict speech based on its content. Ex parte Lo, 424 S.W.3d at 15. In that case, the usual presumption of constitutionality is reversed, the statute is presumed invalid, and the State bears the burden to rebut the presumption. Id. This is because statutes that suppress, disadvantage, or impose differential burdens upon speech because of its content are subject to the most exacting scrutiny. Id. (quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). A law that regulates speech thus survives only if it is narrowly drawn and necessary to serve a compelling state interest. Ex parte Lo, 424 S.W.3d at 15.

Wheeler argues that the Court of Criminal Appeals incorrectly applied strict scrutiny in Ex parte Lo , and he urges us to apply the "categorical approach." We conclude that we are bound to apply the usual standard in which we presume the statute's validity and Wheeler bears the burden to demonstrate its invalidity.

Ex parte Lo leads us to this conclusion. 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. Ex parte Lo, 424 S.W.3d at 17. The Court of Criminal Appeals concluded that section 33.021(b) was unconstitutionally overbroad because it restricted and punished speech based on content but was not narrowly drawn. Id. at 24 (noting that subsection (b) would bar electronic communication relating to "many modem movies, television shows, and ‘young adult’ books, as well as outright obscenity, material harmful to a minor, and child pornography").

In reaching that conclusion, the Court of Criminal Appeals noted that subsection (c), under which Wheeler was charged, "provides an excellent contrast" to subsection (b). Id. at 17. The Court described subsection (c) as 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. It expressly noted that the gravamen of the offense of solicitation is "the conduct of requesting a minor to engage in illegal sexual acts." Id. at 17 (emphasis in original). It contrasted subsection (b) as "very different" because it "prohibits and punishes speech based on its content." Id. Following Lo, we conclude that section 33.021(c) regulates conduct and unprotected speech. Id. (noting solicitation of minors is constitutionally unprotected speech); see also Ex parte Victorick, No. 09–00551–CR, 2014 WL 2152129, at *2 (Tex.App.—Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication) (concluding that section 33.021(c) punishes conduct rather than the content of speech alone), cert. denied, Victorick v. Texas, ––– U.S. ––––, 135 S.Ct. 1557, 191 L.Ed.2d 638 (2015). We therefore must presume the statute's validity and place the burden of demonstrating unconstitutionality upon Wheeler. Ex parte Lo, 424 S.W.3d at 17 ; Maloney v. State, 294 S.W.3d 613, 626 (Tex.App.—Houston [1st Dist.] 2009, pet. ref'd.) (applying presumption that statute is valid in its review of overbreadth and vagueness challenges to Penal Code section 33.021(c) ); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex.App.—San Antonio 2013, pet. ref'd) (presuming validity of Penal Code section 33.021(c) in considering vagueness challenge); Ex parte Victorick, 2014 WL 2152129, at *2 (applying presumption of statutory validity in overbreadth and vagueness challenges to section 33.021(c) ).

Overbreadth Challenges

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 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 Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial in relation to...