Ex Parte Juan Jose Sanchez ( 2016 )

Opinion issued August 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-16-00180-CR and 01-16-00181-CR
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EX PARTE JUAN JOSE SANCHEZ, Appellant
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case Nos. 14-DCR-067551, 14-DCR-067552
MEMORANDUM OPINION
In this appeal from the denial of his pretrial habeas petition, Juan Jose
Sanchez presents a facial challenge to the constitutionality of Section 32.51 of the
Texas Penal Code. We affirm.1
1
We withdraw the opinion and judgment dated July 28, 2016 and issue this opinion
and these judgments in their stead to include both appellate cause numbers.
Background
Sanchez was indicted on two counts of possession or use of identifying
information with the intent to harm or defraud another, under Section 32.51 of the
Penal Code. See TEX. PENAL CODE ANN. § 32.51 (West 2011 & Supp. 2015).
Sanchez moved to quash the indictments and applied for a writ of habeas corpus on
the ground that the statute is facially unconstitutional. The trial court denied relief.
Sanchez appeals the trial court’s denial of habeas relief. 2 See TEX. R. APP. P. 31.
Because Sanchez challenges the statute’s facial validity, we analyze the challenge
without regard to the specific facts of his cases. Ex parte Lo, 424 S.W.3d 10, 14
n.2 (Tex. Crim. App. 2013).
Discussion
Pursuant to Section 32.51(b):
A person commits an offense if the person, with the intent to harm or
defraud another, obtains, possesses, transfers, or uses an item of:
(1) identifying information of another person without the other
person’s consent;
(2) information concerning a deceased natural person, including a
stillborn infant or fetus, that would be identifying information
of that person were that person alive, if the item of information
is obtained, possessed, transferred, or used without legal
authorization; or
(3) identifying information of a child younger than 18 years of age.
2
We note also that the State has filed two new indictments alleging check forgery
under separate cause numbers in the trial court.
2
TEX. PENAL CODE ANN. § 32.51(b). The statute defines “identifying information”
to include an individual’s name, social security number, and date of birth. Id.
§ 32.51(a)(1).
Sanchez challenges Section 32.51 on the ground that it violates the First
Amendment right to freedom of speech. He also contends that it criminalizes mere
thought, which he alleges violates the First and Eighth Amendments of the federal
constitution and article 1, section 19 of the Texas Constitution.3
I. Standard of Review
Determining whether a statute is facially constitutional is a question of law
that we review de novo. Ex parte Lo, 424 S.W.3d at 14 (Tex. Crim. App. 2013);
Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). In our review, we “presume that the statute is valid and that the legislature
was neither unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d
39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see TEX. GOV’T CODE ANN
§ 311.021(1), (3) (West 2013); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.
App. 2002). If the statute may be construed in two different ways, and one
construction sustains the validity of the statute, we must use the construction that
sustains the statute’s validity. Maloney, 294 S.W.3d at 626. The party who
3
Sanchez also contends that Section 32.51 violates the Dormant Commerce Clause,
but waived that contention on appeal by failing to raise it first in the trial court.
See TEX. R. APP. P. 33.1.
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challenges the statute bears the burden of establishing that it is unconstitutional.
See State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).
II. Analysis
In a similar challenge, our court upheld Section 32.51 against a claim of
constitutional overbreadth. Horhn v. State, 481 S.W.3d 363, 366–67 (Tex.
App.―Houston [1st Dist.] 2015, pet. ref’d). In Horhn, the defendant was
convicted under the statute for possessing names, dates of birth, and social security
numbers in the form of a stolen credit card and cell phone photographs of
computer spreadsheets. Id. Horhn challenged the statute’s constitutionality in a
motion to quash the indictment, in which he argued that Section 32.51 “is invalid
on its face because it’s overbroad and [] is a restriction on the First Amendment
right to free speech.” Id.
We affirmed Horhn’s conviction, holding that the statute did not implicate
the First Amendment’s free speech protections. Id. at 375–76. As we noted, the
Court of Criminal Appeals has recognized that the First Amendment protects two
different kinds of conduct. See id. at 373 (citing Ex parte Thompson, 442 S.W.3d
325, 333–34 (Tex. Crim. App. 2014)). Conduct that is inherently expressive, such
as participating in a parade or publishing a novel, is presumptively protected by the
First Amendment. Ex parte Thompson, 442 S.W.3d at 334. Conduct that is not
inherently expressive implicates the First Amendment if (1) it was intended to
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convey a political message, and (2) this message would likely be understood by
those who viewed it. Id. (citing Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct.
2533, 2539 (1989)). In Horhn, we rejected the defendant’s constitutional
challenge because the statute criminalized conduct that was “essentially
noncommunicative,” and thus it did not per se criminalize protected speech.
Horhn, 481 S.W.3d at 375 (citing Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim.
App. 2010)). To the extent that Section 32.51 could be applied to communicative
conduct, we found that such speech invaded the privacy interests of another person
in an essentially intolerable manner and thus was unprotected under First
Amendment jurisprudence. Id.; accord Scott, 322 S.W.3d at 668–69 (citing Cohen
v. California, 403 U.S. 15, 21, 91 S. Ct. 1780, 1786 (1971)).
Sanchez asks that we overrule Horhn. He cites works of literature which
invoke or refer to a person’s name, and analogizes that these works are illegal uses
of a name as defined by the statute. Sanchez suggests that the statute criminalizes
the publication of a newspaper editorial or an investigative report that is critical of
a public figure.
We rejected this premise in Horhn. “Under the canons of statutory
construction, we are to construe a statute according to its plain language, unless the
language is ambiguous or the interpretation would lead to absurd results that the
legislature could not have intended.” Tapps v. State, 294 S.W.3d 175, 177 (Tex.
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Crim. App. 2009) (quoting Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim.
App. 2008)). We read the text of the statute in context, construing it “according to
the rules of grammar and common usage.” TEX. GOV’T CODE ANN. § 311.021
(West 2013); Tapps, 294 S.W.3d at 177. Section 32.51 criminalizes actions taken
with intent to harm or defraud. Considered within this context, the term “use”
does not embrace criticism of a person by name. See TEX. PENAL CODE ANN.
§ 32.51(b)(1); SMI Realty Mgmt. Corp. v. Underwriters at Lloyd’s, London, 179
S.W.3d 619, 625 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(observing that under the maxim of noscitur a sociis, the meaning of a word may
be determined by reference to the meaning of words associated with it).
Following Horhn, we hold that Section 32.51(b) withstands a facial
challenge based on a violation of the First Amendment. See TEX. PENAL CODE
ANN. § 32.51; Ex parte Thompson, 442 S.W.3d at 334; Tapps, 294 S.W.3d at 177;
Horhn, 481 S.W.3d at 376.
Sanchez next contends that Section 32.51, by forbidding “possession” of
identifying information, criminalizes knowledge of identifying information without
requiring any criminal act. Sanchez argues that punishment of knowledge alone
violates the First Amendment, the Eighth Amendment’s prohibition on cruel and
unusual punishment, and the Texas Constitution’s guarantee of due course of law.
See U.S. CONST. amends. I, VIII; TEX. CONST. art. I, § 19.
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The State cannot criminalize thoughts. Goldberg v. State, 95 S.W.3d 345,
373 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Texas v. Johnson,
491 U.S. 397, 414, 109 S. Ct. 2533, 2544 (1989)). But when a statute can be
interpreted in two ways, one of which preserves its constitutionality, we apply the
interpretation that preserves it. Maloney v. State, 294 S.W.3d 613, 626 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d).
The Penal Code defines “possession” as “actual care, custody, or
management,” terms which suggest physical possession of tangible items. TEX.
PENAL CODE ANN. § 1.07(a)(39) (West 2011). Black’s Law Dictionary similarly
defines possession in terms that suggest control of physical items, referring to it as
“the exercise of dominion over property.” Possession, BLACK’S LAW DICTIONARY
(10th ed. 2014). Because the usual definition of the term assumes physical control,
we construe possession in this context to require physical control of identifying
information in written or recorded form. See TEX. PENAL CODE ANN.
§§ 1.07(a)(39), 32.51; Maloney, 294 S.W.3d at 626; Goldberg, 95 S.W.3d at 373.
This construction comports with the general purpose of the Penal Code, which is to
deal with actually or potentially harmful conduct. See TEX. PENAL CODE ANN.
§ 1.02.
Finally, Sanchez contends that Section 32.51 is unconstitutionally vague
because its “harm” standard provides insufficient notice as to what speech is
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prohibited. Due process requires that a criminal statute be specific enough to give
fair notice as to the activity that is criminal. See State v. Holcombe, 187 S.W.3d
496, 499 (Tex. Crim. App. 2006); Bynum v. State, 767 S.W.2d 769, 773 (Tex.
Crim. App. 1989).
We apply a two-part test to determine if a criminal statute is
unconstitutionally vague. To overcome a vagueness challenge, a criminal statute
must define the offense (1) with sufficient specificity that ordinary people can
understand what actions are prohibited, and (2) in a manner that does not permit
arbitrary and discriminatory enforcement. See Holcombe, 187 S.W.3d at 499.
Either the lack of notice or lack of guidelines for law enforcement may constitute
an independent ground for finding a statute void for vagueness. Adley v. State, 718
S.W.2d 682, 685 (Tex. Crim. App. 1985). But a statute need not be
mathematically precise; it need only give fair warning, in light of common
understanding and practices. Rivera v. State, 363 S.W.3d 660, 672 (Tex.
App.―Houston [1st Dist.] 2011, no pet.).
Words defined in dictionaries with meanings understood by a person of
ordinary intelligence are not vague or indefinite. Ex parte Morales, 212 S.W.3d
483, 499 (Tex. App.—Austin 2006, pet. ref’d) (citing Floyd v. State, 575 S.W.2d
21, 23 (Tex. Crim. App. 1978)). We read words in context, according to the rules
of grammar and common usage. See TEX. GOV’T CODE ANN. § 311.011(a). If a
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statute does not substantially implicate constitutionally protected conduct or
speech, it is valid unless it is impermissibly vague in all applications. Holcombe,
187 S.W.3d at 499 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494–495, 102 S. Ct. 1186, 1191 (1982)).
We have determined that Section 32.51 does not implicate constitutionally
protected speech. The statute is therefore valid unless it is unconstitutionally
vague in all applications. Flipside, 455 U.S. at 494–95, 102 S. Ct. at 1191;
Holcombe, 187 S.W.3d at 499. In its context within the statute, “harm or defraud”
provides sufficient notice to the public of the criminal penalty for misuse of
identifying information. See TEX. GOV’T CODE ANN. § 311.011(a); Holcombe, 187
S.W.3d at 499; see also, e.g., Ex parte Morales, 212 S.W.3d at 499; Harm,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003); cf. State v.
Florance, No. 05-07-00088-CR, 2007 WL 2460088, at *4–*5 (Tex. App.—Dallas
Aug. 31, 2007, pet. dism’d) (not designated for publication) (upholding criminal
statute against vagueness challenge to “intent to harm or defraud” language). We
hold that Sanchez has failed to demonstrate that Section 32.51(b) is
unconstitutional on its face. See Rosseau, 396 S.W.3d at 557; Florance, 2007 WL
2460088, at *4–*5; Holcombe, 187 S.W.3d at 499; Ex parte Morales, 212 S.W.3d
at 499; Curry, 186 S.W.3d at 42.
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Conclusion
We hold that the trial court did not err in denying Sanchez’s habeas petition.
We therefore affirm the order of the trial court. All pending motions are denied as
moot.
Jane Bland
Justice
Panel consists of Justices Higley, Bland, and Massengale.
Do not publish. See TEX. R. APP. P. 47.2(b).
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