Ex Parte Stuart Oland Wheeler ( 2015 )

Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00868-CR
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EX PARTE STUART OLAND WHEELER
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2014V-0074
O P I N I O N
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
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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.
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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, 132 S. Ct. 2537 (2012); United States v. Stevens, 559 U.S. 460
(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
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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
(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.
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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 modern 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
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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, 135 S. Ct. 1557 (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
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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 (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 its plainly legal sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973). Put differently, a statute should not be invalidated for overbreadth merely
because it is possible to imagine some unconstitutional application. See In re Shaw,
204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d).
1. Penal Code Section 33.021(c)
This Court, and the Beaumont Court of Appeals, have held that Penal Code
section 33.021(c) is not unconstitutionally overbroad. See Maloney, 294 S.W.3d at
626–29 (rejecting overbreadth challenge to subsection 33.021(c)); Ex parte
Victorick, 2014 WL 2152129, at *2 (same). Nevertheless, Wheeler urges us to
revisit this precedent in light of his argument that the statute prohibits an adult
ageplayer from soliciting a consenting fellow ageplayer who is pretending to be a
child as part of a fantasy. In support of his argument, Wheeler relies on an article
by Paul J. Dohearty demonstrating the purported prevalence of ageplay.
But longstanding precedent teaches that a statute should not be invalidated
for overbreadth merely because it is possible to imagine some unconstitutional
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application. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118 (1984)); Ex parte
Victorick, 2014 WL 2152129, at *2. Indeed, the United States Supreme Court has
explained,
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 (1982) (citing Broadrick,
413 U.S. at 613).
Here, the government objective—to protect children from sexual
exploitation and abuse—is one the Supreme Court of the United States regards as
having surpassing importance. Id. at 757. Although the Dohearty article asserts
that ageplay is increasingly prevalent in the age of social media, we conclude that
the legitimate reach of Penal Code section 33.021(c) dwarfs the threat of its
arguably impermissible application to innocent ageplayers and that whatever
overbreadth exists should be cured by thorough and case-by-case analysis and
judicious use of prosecutorial discretion.1 See Maloney, 294 S.W.3d at 627 (citing
Ferber, 458 U.S. at 773–74). Because the statute’s arguable overbreadth is
insubstantial when judged in relation to the statute’s plainly legitimate sweep, we
1
We note that Wheeler himself does not assert that he was engaging in innocent
ageplay when he made the online solicitation for which he was indicted.
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hold that Penal Code section 33.021(c) is not unconstitutionally overbroad. Id; see
also Ex parte Victorick, 2014 WL 2152129, at *2.
2. Penal Code Section 33.021(d)(2)
Wheeler contends that Penal Code section 33.021(d)(2) is overbroad because
it eliminates the element of specific intent required by subsection (c). See TEX.
PEN. CODE ANN. § 33.021(d)(2) (providing that it is not a defense to prosecution
under section 33.021(c) that the actor did not intend for the solicited meeting to
occur). Thus, argues Wheeler, the statute permits conviction even of one who did
not, in fact, intend at the time of the solicitation to actually meet the minor whom
he solicited. We disagree.
“If a statute can be construed in two different ways, one of which sustains its
validity, we apply the interpretation that sustains its validity.” Maloney, 294
S.W.3d at 626. Here, we read subsection (c) to require proof of specific intent to
meet at the time of the solicitation, and subsection (d)(2) to refer only to the
solicitor’s intent post-solicitation. In other words, we interpret subsection (d)(2) to
preclude only a defense on the basis that the solicitor lost the specific intent to
meet or changed his mind about meeting after the solicitation occurred. We hold
that Subsection (d)(2) does not relieve the State of its burden to prove that the
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defendant had the specific intent to meet at the time of the solicitation. 2 See Ex
parte Zavala, 421 S.W.3d at 231–32 (concluding that Penal Code sections
33.021(c) and (d)(2) are not contradictory and construing (d)(2) to mean that it is
irrelevant whether, post-solicitation, the defendant no longer intended for the
meeting to occur, because offense is complete at the time of solicitation if the
defendant has the requisite intent to meet at the time of the solicitation).
3. Penal Code Section 33.021(d)(3)
Wheeler argues that Penal Code section 33.021(d)(3) is unconstitutionally
overbroad because it precludes a defense to prosecution under (c) based on the fact
that a defendant was engaged in ageplay—i.e., was fantasizing that the consenting
adult receiving the solicitation was actually a child—at the time of the solicitation.
As we discussed above, a statute should not be invalidated for overbreadth
merely because it is possible to imagine some unconstitutional application. In re
Shaw, 204 S.W.3d at 15 (citing Taxpayers for Vincent, 466 U.S. at 800); Ex parte
Victorick, 2014 WL 2152129, at *2. As we have already concluded, the statute’s
plainly legitimate objective is one of surpassing importance. When judged in
2
Wheeler argues that this interpretation of (d)(2) would render it superfluous and
therefore meaningless, because a “change of heart” defense is not a defense in any
case. We note, however, that renunciation may be an affirmative defense in some
circumstances, see TEX. PENAL CODE ANN. § 15.04 (West 2011), and that it was
the legislature’s prerogative to underscore in (d)(2) the concept that the offense
described in section 33.021 is complete when the culpable request or inducement
is unilaterally presented. We also note that the legislature has amended section
33.021 to eliminate (d)(2) and (d)(3), effective September 1, 2015.
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comparison to the statute’s plainly legitimate sweep, we conclude that the statute’s
arguable overbreadth is insubstantial. Accordingly, we hold that Penal Code
section 33.021(d)(3) is not unconstitutionally overbroad. Id.; see also Ex parte
Victorick, 2014 WL 2152129, at *2.
We overrule Wheeler’s first issue.
Vagueness Challenge
Under the void-for-vagueness doctrine, a statute will be invalidated if it fails
to give a person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.
App. 2006). Statutes are not necessarily unconstitutionally vague merely because
the words or terms employed in the statute are not defined. See Engelking v. State,
750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When the words used in a statute
are not otherwise defined in the statute, we will give the words their plain meaning.
See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999).
Wheeler argues that the statute is unconstitutionally vague because Section
33.021(d) “eliminates the intent element from Section 33.021(c).” Wheeler asserts
that the statute is thus self-contradcitory and, therefore, people of common
intelligence must necessarily guess at its meaning. As we discussed in the context
of Wheeler’s overbreadth challenges, if a statute can be construed in two different
ways, one of which sustains its validity, we apply the interpretation that sustains its
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validity. Maloney, 294 S.W.3d at 625. We have construed subsection (c) to
require proof of specific intent to meet at the time of the solicitation, and we hold
that subsection (d)(2) refers only to the solicitor’s intent post-solicitation. This
construction of the statute eliminates any supposed conflict between subsection (c)
and subsection (d)(2). See Ex parte Zavala, 421 S.W.3d at 232 (concluding that
Penal Code sections 33.021(c) and (d)(2) are not contradictory and rejecting
vagueness challenge based on asserted contradiction). Accordingly, we hold that
Penal Code section 33.021 is not unconstitutionally vague.
We overrule Wheeler’s second issue.
Commerce Clause Challenge
In his third issue, Wheeler contends that section 33.021 violates the Dormant
Commerce Clause of the United States Constitution by “unduly burden[ing]
interstate commerce by attempting to place regulations on the entirety of the
internet.” See U.S. CONST. art. I, § 8.
The only authority Wheeler cites in support is American Libraries
Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (striking down statute
criminalizing use of a computer to communicate sexually explicit materials to
minors). In Pataki, the defendants “[did] not challenge the sections of the statute
that . . . prohibit adults from luring children into sexual contact by communicating
with them via the internet.” Id. at 179. Rather, the law challenged in Pataki was
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aimed at limiting exposure by minors to harmful content. It was that portion of the
law which was ultimately found to impose a burden on interstate commerce that
was disproportionate to the local benefits of regulation. Section 33.021(c), by
contrast, does not punish communication of explicit materials to minors. Instead, it
criminalizes online solicitation of minors with the intent to engage in sexual
conduct. Pataki is thus inapposite.
The Supreme Court of the United States established a balancing test to
determine whether a burden on interstate commerce imposed by a regulation is
excessive in relation to putative local benefits. See Pike v. Bruce Church, Inc., 397
U.S. 137, 142; 90 S. Ct. 844, 847 (1970). Where the statute regulates even-
handedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits. Huron
Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 816
(1960). If a legitimate local purpose is found, then the question becomes one of
degree. And the extent of the burden that will be tolerated will depend on the
nature of the local interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities. Pike, 397 U.S. at 142.
Wheeler does not articulate, and we cannot discern, how section 33.021
differentiates between inter and intra state commerce. The statute is even-handed.
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Courts have concluded—and we agree—that protecting children from sexual
predators is a legitimate local public interest. See, e.g., Ex parte Lo, 424 S.W.3d at
21 (“There is no question that the State has a right—indeed a solemn duty—to
protect young children from the harm that would be inflicted upon them by sexual
predators.”). And we also conclude that the effect of the statute on interstate
commerce is only incidental in relation to the local benefit of the statute.
Accordingly, we reject Wheeler’s challenge to section 33.021 under the Dormant
Commerce Clause. Huron Portland Cement, 362 U.S. at 443 (evenhanded local
regulation to effectuate a legitimate local public interest is valid unless unduly
burdensome on interstate commerce).
We overrule Wheeler’s third issue.
Conclusion
We affirm the trial court’s ruling denying Wheeler’s application for habeas
corpus relief.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Publish. TEX. R. APP. P. 47.2.
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