In re Shaw

• Decision Date: 11 August 2006
• Docket Number: No. 06-06-00004-CR.,06-06-00004-CR.
• Parties: In re Shelly Kasandra SHAW.
• Court: Texas Court of Appeals

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204 S.W.3d 9 In re Shelly Kasandra SHAW. No. 06-06-00004-CR. Court of Appeals of Texas, Texarkana. Submitted June 28, 2006. Decided August 11, 2006. Rehearing Overruled September 26, 2006.

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Phil Smith, Sulphur Springs, for appellant.

Steven Lilley, Asst. Dist. Atty., Martin Braddy, Dist. Atty., Sulphur Springs, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Shelly Kasandra Shaw has been charged by indictment with the offense of improper relationship between educator and student. See TEX. PEN.CODE ANN. § 21.12 (Vernon Supp.2006).¹ The indictment alleges Shaw engaged in prohibited sexual contact with a student of the secondary school where Shaw was employed. Shaw filed a pretrial motion for a writ of habeas corpus in the trial court, alleging Section 21.12 is unconstitutional on its face.² The trial court denied relief, finding the statute is not unconstitutional. Shaw now appeals that ruling, contending the statute is facially void under the United States Constitution because it violates: 1) the First Amendment rights of privacy and freedom of association by being overly broad; 2) the Due Process Clauses of the Fifth and Fourteenth Amendments by being void for vagueness; 3) the Equal Protection Clause of the Fourteenth Amendment by creating

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a class treated differently from any other class; and 4) the Fifth Amendment prohibition against double jeopardy by authorizing the State to prosecute twice for the same offense. Shaw also claims the statute is in violation of corresponding provisions of the Texas Constitution, but makes no discernible argument for a separate application of state constitutional principles. We overrule Shaw's challenge and affirm the trial court's ruling.

HABEAS CORPUS

Habeas corpus is an extraordinary remedy that should not be used as a substitute for an appeal. Ex parte Culver, 932 S.W.2d 207, 210 (Tex.App.-El Paso 1996, pet. ref'd). Thus, an application for pretrial writ of habeas corpus should not be entertained where there is an adequate remedy by appeal after final judgment. Id. A defendant may raise by pretrial habeas corpus claims concerning double jeopardy, collateral estoppel, and bail, because those protections would be undermined if review were not permitted until after conviction. Jaime v. State, 81 S.W.3d 920, 924 (Tex.App.-El Paso 2002, pet. ref'd). The writ of habeas corpus is not available where judicial determination of the question presented, even if resolved in favor of the defendant, would not result in immediate release. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001).

STANDARD OF REVIEW

We review a trial court's grant or denial of relief under an application for writ of habeas corpus for an abuse of discretion. Jaime, 81 S.W.3d at 924 (citing Ex parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.-Amarillo 1996, pet. ref'd); Ex parte Ayers, 921 S.W.2d 438, 441 (Tex. App.-Houston [1st Dist.] 1996, no pet.)). Whether discretion was so abused depends on whether the trial court acted without reference to any guiding rules or principles. Brashear v. State, 985 S.W.2d 474, 476 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). The reviewing court accords great deference to the trial court's findings and conclusions, and views the evidence in a light most favorable to the ruling. Pipkin, 935 S.W.2d at 215.

A facial challenge to the constitutionality of a statute is difficult to mount successfully because the challenger must establish that no set of circumstances exists under which the statute is valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim.App.1992). To prevail on such a claim, the challenger must show that, in its operation, the statute is unconstitutional as applied in the situation. The fact the statute may be unconstitutional as applied to others is not sufficient. Id.

OVERBREADTH AND FIRST AMENDMENT RIGHTS OF PRIVACY AND ASSOCIATION

The First Amendment to the United States Constitution is the source of certain fundamental freedoms, including freedom of speech and freedom to assemble. U.S. CONST. AMEND. I. What we commonly know as an individual's right to privacy and right of association find their wellspring in the so-called penumbras of the First Amendment. Griswold v. Connecticut, 381 U.S. 479, 483-84, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). We will assume, without deciding, that Shaw's claim that the rights of privacy and association emanating from the First Amendment's penumbra includes a constitutional right of adults to consensual sex. Such a right would logically qualify as part of an individual's rights to privacy and association, "protected from governmental intrusion." Id. at 483, 85 S.Ct. 1678.

Shaw contends Section 21.12 is overly broad, and therefore a violation of the First Amendment, because it applies to "all `employees' of school districts . . .

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[and] all students (persons enrolled), regardless of age." Therefore, Shaw argues, "[t]his statute . . . infringes upon Appellant's liberty interest to engage in private sexual conduct between consenting adults and makes criminal what other adults can do freely and without restraint."

An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). However, a statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Further, as stated by the United States Supreme Court:

Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine" and have employed it with hesitation, and then "only as a last resort."

New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).

The overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. The Supreme Court has therefore developed a requirement that the overbreadth must be "substantial" before the statute will be held unconstitutional on its face. See Taxpayers for Vincent, 466 U.S. at 800, 104 S.Ct. 2118. In other words, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Id. at 801, 104 S.Ct. 2118. Only if the statute "reaches a substantial amount of constitutionally protected conduct" may it be struck down for overbreadth. City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).

Shaw imagines a number of circumstances involving sexual conduct between consenting adults where she alleges the statute would be applied unconstitutionally. However, we cannot say the statute is impermissibly broad when "judged in relation to the statute's plainly legitimate sweep," i.e., employees and students in primary and secondary schools, when the vast majority of such students are undoubtedly not adults. The record before us contains no data about what percentage of secondary school students affected by this statute are adults. Thus, even if this statute could be said to infringe on fundamental First Amendment rights of those students and employees who are of age, there is no evidence before us indicating Section 21.12 "reaches a substantial amount of constitutionally protected conduct." Hill, 482 U.S. at 458, 107 S.Ct. 2502 (quoting Vill. of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. 1186). Accordingly, we reject Shaw's contention that Section 21.12 violates the First Amendment by being overly broad.

DUE PROCESS CLAUSE AND VOID FOR VAGUENESS

Shaw contends the overbreadth of the statute also violates the Due Process Clauses of the Fifth and Fourteenth Amendments. As the overbreadth doctrine has been recognized only in First

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Amendment contexts, we will not address this claim. Shaw also contends, however, that the statute's vagueness violates these same constitutional protections.

The State contends this Court lacks jurisdiction over Shaw's due process claims. Because of the existence of an adequate remedy by appeal, a defendant may not use pretrial habeas corpus to assert his or her constitutional rights to due process. Culver, 932 S.W.2d at 210; Ex parte Gonzales, 667 S.W.2d 932, 935 (Tex.App.-Austin 1984, pet. ref'd). Due process claims, therefore, are not cognizable on a pretrial application for habeas relief. Mitchell v. State, 963 S.W.2d 532, 540-41 (Tex.App.-Tyler 1996), aff'd, 977 S.W.2d 575 (Tex.Crim.App.1997).

Notwithstanding the lack of cognizability of this issue on a pretrial writ, Shaw has not met the strict requirements for claiming a statute is void for vagueness. A statute is void for vagueness and lacks the first essential element of due process when it either forbids or requires the...