Wheeler, Ex Parte Stuart Oland ( 2015 )

PD-1408-15
To The Court Of Criminal Appeals Of Texas
No. 01-14-00868-CR
Ex Parte Stuart Oland Wheeler
Petitioner / Appellant
Stuart Oland Wheeler’s
Petition for Discretionary Review
On Petition for Discretionary Review from the First Court of
Appeals; Cause Number 01-14-00868-CR, affirming the denial
of habeas corpus in Cause Number 2014V-0074 from the 155th
Criminal District Court of Austin County, Texas.
Mark W. Bennett
TBN 00792970
Bennett & Bennett
735 Oxford Street
Houston, Texas 77007
Tel. 713.224.1747
email MB@IVI3.com
Counsel for Appellant
29 October 2015
November 2, 2015
Table of Contents
Table of Contents..................................................................................................... ii
Table of Authorities ................................................................................................ iv
Statement Regarding Oral Argument ...................................................................... vi
Names of All Parties............................................................................................... vii
Statement of the Case .............................................................................................. 1
Statement of Procedural History .............................................................................. 2
Grounds for Review ................................................................................................. 2
First Ground for Review ...................................................................................... 2
Second Ground for Review .................................................................................. 2
Third Ground for Review ..................................................................................... 2
Reason for Review .................................................................................................... 3
Facts ......................................................................................................................... 3
Argument and Authorities........................................................................................ 4
Summary of the Argument ................................................................................... 4
First Ground of Review: The First Court of Appeals erred when it
presumed Section 33.021 to be valid. ................................................................... 5
The Text of the Statute .................................................................................. 6
Section 33.021 is a content-based restriction on speech. ................................ 8
ii
Because Section 33.021 is a content-based restriction on speech, it is
presumptively invalid. .................................................................................... 9
The First Court s Rationale ......................................................................... 10
Conclusion ................................................................................................... 14
Second Ground of Review: The First Court of Appeals erred when it held
that Section 33.021 of the Texas Penal Code, the Online Solicitation of a
Minor statute, is not void for overbreadth. ..........................................................15
Other presumptions are also reversed. ..........................................................15
Does Section 33.021 forbid only unprotected speech? ................................. 17
Section 33.021 will fail strict scrutiny. .......................................................... 21
Conclusion ................................................................................................... 29
Third Ground of Review: The First Court of Appeals erred when it held
that Section 33.021 of the Texas Penal Code, the Online Solicitation of a
Minor statute, is not void for vagueness. ............................................................ 29
Conclusion ....................................................................................................31
Prayer ......................................................................................................................31
Certificate of Service .............................................................................................. 33
Word Count ........................................................................................................... 33
Appendix ................................................................................................................ 34
iii
Table of Authorities
Cases
Arganbright v. State, 328 P.3d 1212 (Okla. Crim. App. 2014) ......................... 12
Ashcroft v. ACLU, 542 U.S. 656 (2004) .......................................................... 16
Brandenburg v. Ohio, 395 U.S. 444 (1969) ......................................................20
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)............................................. 26
Duncantell v. State .......................................................................................... 30
Duncantell v. State, 230 S.W.3d 835 (Tex. App.̶Houston [14th Dist.] 2009,
pet. ref d).................................................................................................... 16
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979) ...................................... 17
Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). ............................... passim
Ex parte Thompson, 414 S.W.3d 872 (Tex. App.̶San Antonio 2013) ............. 10
Ex Parte Thompson, 442 S.W.3d 347 (Tex. Crim. App. 2014) ................. 8, 11, 21
Grayned v. City of Rockford, 408 U.S. 104, 108‒09 (1972) .............................. 29
Karwoski v. State, 867 So. 2d 486 (Fla. Dist. Ct. App. 2004).......................... 12
LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005) ................................... 12
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) ................................... 29
Maloney v. State, 294 S.W.3d 613 (Tex. App. ̶ Houston [1st Dist. 2009, pet.
ref d.) .............................................................................................. 15, 25, 28
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789 (1984) .................................................................................................. 27
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) ........................................ 8
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................................................ 10
Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218 (2015) ........................... 8
Spence v. Washington, 418 U.S. 405 (1974) ..................................................... 11
iv
State v. Rung, 774 N.W.2d 621 (Neb. 2009) ................................................... 12
Tinker v. Des Moines Community School District, 393 U.S. 503 (1969) ............. 11
United States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004) ............................. 12
United States v. Stevens, 559 U.S. 460 (2010) ................................................. 17
United States v. Williams, 553 U.S. 285 (2008)...............................................20
Ward v. Rock Against Racism, 491 U.S. 781 (1989) .......................................... 13
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ......... 11
Statutes
Tex. Penal Code § 33.021 (2014) ........................................................... passim
Tex. Penal Code § 33.021 (2015) .................................................................. 24
Tex. Penal Code § 33.021(d)(2)...................................................................... 6
Other Authorities
http://www.amazon.com/s/?url=search-alias%3Dstripbooks&field-
keywords=age+play+erotica ....................................................................... 25
http://www.legis.state.tx.us/tlodocs/84R/analysis/html/SB00344I.htm ..... 24
The Prevalence and Scope of Ageplay ....................................................... 3, 25, 26
Constitutional Provisions
U. S. Const. amend. 1. ...................................................................................... 8
v
Statement Regarding Oral Argument
Applicant believes that oral argument will be helpful,
and requests oral argument.
vi
Names of All Parties
Mr. Stuart Oland Wheeler Appellant
Mark W. Bennett Trial and Appellate Counsel
TBN 00792970 for Appellant
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
Mr. Phil Baker
P.O. Box 628
La Grange, Texas 78945
Tel. 979.968.3783
Ms. Brandy Robinson Trial and Appellate Counsel for
Asst. Criminal District Attorney Appellee
One East Main
Bellville, Texas 77418
(979) 865-5933
Hon. Jeff Steinhauser Trial Judge, 155th District Court,
Austin County, Texas
vii
To The Court Of Criminal Appeals Of Texas
No. 01-14-00868-CR
Ex Parte Stuart Oland Wheeler
Petition for Discretionary Review
On Petition for Discretionary Review from the First
Court of Appeals; Cause Number 01-11-20-CR, affirming
the denial of habeas corpus in Cause Number 1276551
from the 248th Criminal District Court of Harris County,
Texas.
To The Honorable Court Of Criminal Appeals:
Appellant Stuart Oland Wheeler, by and through his counsel on appeal,
Bennett & Bennett, petitions for discretionary review.
❧
Statement of the Case
The State charged Mr. Wheeler on February 26, 2014, by indictment with the
second-degree felony of online solicitation of a minor.1 Before trial, on June 13,
2014, Mr. Wheeler filed a writ of habeas corpus alleging that Texas Penal
Code Section 33.021, the Online Solicitation of a Minor statute, is
1
Clerk’s Record 14.
1
unconstitutional because it is overbroad and vague.2 The trial court denied
relief on October 23, 2014.3 Mr. Wheeler appealed.
❧
Statement of Procedural History
The First Court of Appeals handed down its opinion on September 29, 2015,
affirming the trial court’s denial of habeas relief.4 No motion for rehearing was
filed.
❧
Grounds for Review
Mr. Wheeler presents three grounds for review.
First Ground for Review
The First Court of Appeals erred when it mistakenly applied the usual standard of review,
including the presumption of the statute’s validity, instead of the presumption-of-invalidity
standard of review for First Amendment, content-based statutes.
Second Ground for Review
The First Court of Appeals erred when it held that Section 33.021 of the Texas Penal Code, the
Online Solicitation of a Minor statute, is not void for overbreadth.
Third Ground for Review
The First Court of Appeals erred when it held that Section 33.021 of the Texas Penal Code, the
Online Solicitation of a Minor statute, is not void for vagueness.
❧
2
Clerk’s Record 3–29
3
Clerk’s Record 57.
4
Ex Parte Wheeler, No. 01-14-00868-CR (Tex. App.—Houston [1st Dist.], delivered
September 29, 2015).
2
Reason for Review
The First Court of Appeals has decided an important question of federal law
in a way that conflicts with the applicable decisions of this Court and the
Supreme Court of the United States. Tex. R. App. Proc. 66.3(c).
❧
Facts
Mr. Wheeler is charged by indictment with:
with the intent that K. McBee, a minor, would engage in sexual contact with the defendant,
knowingly solicit[ing] over the Internet the said K. McBee to meet the defendant.
This is an accusation of Online Solicitation of a Minor under Section 33.021 of
the Texas Penal Code.5
In this case, unlike in other cases that have come to this Court on PDR
challenging the constitutionality of Section 33.021(c) under the First
Amendment, there is evidence in the record of the real and substantial
unconstitutional overreach of the statute.6
❧
5
Beyond this, the facts of Mr. Wheeler’s case are not a part of the record, as this is an as-
written challenge to the statute. The First Court noted in its opinion that “Wheeler himself
does not assert that he was engaging in innocent ageplay when he made the online solicitation
for which he was indicted.” Opinion below at 9, fn. 1. This is as it should be—that assertion
would make this an as-applied challenge to the statute, not properly made in this context.
6
See The Prevalence and Scope of Ageplay, Clerk’s Record at 15–29. In brief, ageplay—
sexual roleplay by adults pretending to be children—is “a substantial and longstanding
tradition”; “The ageplay community and its practitioners are numerous, diverse, and
multifaceted.” Section 33.021 forbids ageplay online.
3
Argument and Authorities
Summary of the Argument
What remains of Section 33.021 of the Texas Penal Code after Ex Parte Lo7
forbids a substantial amount of speech that is protected under the First
Amendment: speech that either is not soliciting or is directed at an adult
whom the speaker does not believe to be a child.
The modern approach to First Amendment challenges to speech-
restricting penal statutes8 is a three-step inquiry:
1. Does the statute restrict speech (including expressive conduct) based on its
content, including its subject matter? If the answer is “yes,” then the
statute is presumed to be unconstitutional, and the court must ask…
2. Does the restricted speech fall entirely into a category of unprotected speech? If
the statute forbids only unprotected speech, the First Amendment is
satisfied. If, however, the statute captures protected speech along with
unprotected speech, then…
3. Does the statute satisfy strict scrutiny? That is, is it necessary and narrowly
written to satisfy a compelling state interest?
In the case of what remains of Section 33.021, the analysis should have shaken
out as follows:
1. Section 33.021 restricts speech based on its content, including its
subject matter and its intent. Therefore it is presumed to be
unconstitutional.
7
Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).
8
See, generally, United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012) (applying this
approach to the Stolen Valor Act).
4
2. Section 33.021 captures both protected speech (solicitation with the
intent that a crime—sex with a minor—be committed) and unprotected
speech (fantasy speech; solicitation of people believed to be adults; and
other solicitant speech with no intent that a crime be committed).
3. Section 33.021 does not satisfy strict scrutiny because it is not narrowly
written.
The First Court of appeals went off-track in the first step: it presumed this
content-based restriction on speech to be constitutional.
Having gone off-track, the First Court of Appeals applied the wrong
analysis and arrived at the wrong result. This Court should grant discretionary
review, order briefing, hear argument, and reverse with an order that the
indictment be dismissed.
❧
First Ground of Review: The First Court of Appeals erred when it presumed
Section 33.021 to be valid.
In Ex Parte Lo this Court reversed the First Court of Appeals because “the
court of appeals mistakenly applied the usual standard of review, including the
presumption of the statute’s validity, instead of the presumption-of-invalidity
standard of review for First Amendment, content-based statutes.”9 In this
case the First Court of Appeals has repeated the mistake that it made in Lo: it
9
Ex Parte Lo, 424 S.W.3d at 16.
5
has mistakenly presumed Section 33.021’s content-based restriction on speech
to be valid,10 and put the burden on Mr. Wheeler to rebut that presumption.11
In making this mistake, the First Court read too much into12 this Court’s
dicta in Lo implying that Section 33.021(c) of the Texas Penal Code is not a
content-based restriction on speech.13
❧
The Text of the Statute
The relevant portions of Texas Penal Code Section 33.021 state:
Sec. 33.021. ONLINE SOLICITATION OF A MINOR. (a) In this section:
(1) "Minor" means:
(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.
(2) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings
assigned by Section 21.01.
…
(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.
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
10
Opinion below at 6.
11
Opinion below at 7.
12
See Opinion below at 6 (“Ex parte Lo leads us to this conclusion”); id. at 7 (“Following Lo,
we conclude that Section 33.021(c) regulates conduct and unprotected speech”).
13
Lo at 16–17.
6
(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.14
Mr. Wheeler’s complaint below was that “what remains of Section 33.021 is
unconstitutionally overbroad in violation of the First Amendment.”15 The
First Court of Appeals addressed subsections 33.021(d)(2) and (d)(3)
separately and ignored subsection (a)(1)(A). It is the interplay of subsections
33.021(a)(1)(A), (d)(2), and (d)(3) with (c), however, that renders the whole of
the statute unconstitutional.
While the State may constitutionally forbid speech that is intended to
lead to sex with children, in Section 33.021 it also forbids speech that it may
not constitutionally forbid: speech that is intended to lead to sex with adults
(subsection (a)(1)(A)); and speech that is not intended to result in sex with
either children or adults (subsections (d)(2)–(3)).
While the statute is captioned “Online Solicitation of a Minor” (which
would be a category of constitutionally unprotected speech) the forbidden
conduct includes a real and substantial amount of speech that is not the
solicitation of a minor, and so is protected.
❧
14
Tex. Penal Code § 33.021 (West 2014). This Court held in Ex Parte Lo, 434 S.W.3d 10
(2013) that Section 33.021(b) of the Texas Penal Code is unconstitutional, and the definitions
of Section 33.021(a)(3) applied only to 33.021(b), so this is what remains of the statute.
15
Appellant’s brief below at 3.
7
Section 33.021 is a content-based restriction on speech.
The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws “abridging the freedom of
speech.”16 Under the Free Speech Clause a government “has no power to
restrict expression because of its message, its ideas, its subject matter, or its
content.”17 Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to serve
compelling state interests. R. A. V. v. St. Paul, 505 U.S. 377, 395 (1992);
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S.
105, 115, 118 (1991).
Government regulation of speech is content-based if a law applies to
particular speech because of the topic discussed or the idea or message
expressed.18 An otherwise content-neutral restriction may be rendered
content-based if it discriminates because of the intent of the speech.19
16
U. S. Const. amend. 1.
17
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
18
Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218, 2227, (2015).
19
See Ex Parte Thompson, 442 S.W.3d 325, 347 (Tex. Crim. App. 2014) (holding that a
portion of section 21.15 of the Texas Penal Code was content-based because it discriminated
on the basis of the underlying sexual thought).
8
“If it is necessary to look at the content of the speech in question to
decide if the speaker violated the law, then the regulation is content-based.”20
It is necessary to look at the content of the speech in question to decide if
someone charged under Section 33.021 violated the law. Section 33.021 applies
to particular speech because of the topic discussed (meeting for sex), because
of the idea or message expressed (that the speaker would like to meet the
recipient of the message for sex), and perhaps because of the intent of the
speech.21
❧
Because Section 33.021 is a content-based restriction on speech, it is
presumptively invalid.
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. The burden normally rests upon the person
challenging the statute to establish its unconstitutionality. However, when
the government seeks to restrict and punish speech based on its content, the
usual presumption of constitutionality is reversed. Content-based
regulations (those laws that distinguish favored from disfavored speech
based on the ideas expressed) are presumptively invalid, and the
government bears the burden to rebut that presumption.22
❧
20
Ex Parte Lo, 424 S.W.3d at 15 fn. 12.
21
Whether the intent of the speech matters under Section 33.021 is an interesting question, as
discussed below in the context of vagueness.
22
Ex Parte Lo, 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013).
9
The First Court’s Rationale
As its rationale for applying the wrong presumption (validity rather than
invalidity) the First Court in this case “conclude[d] that Section 33.021(c)
regulates conduct and unprotected speech.”23 It was wrong about conduct,
and it put the cart before the horse on protected speech.
❧
Does Section 33.021 regulate conduct?
In Ex Parte Lo, this Court cited R.A.V. v. City of St. Paul for the proposition
that “content-based regulations of speech are presumptively invalid.”24 The
paragraph in R.A.V. from which the court drew this proposition begins:
The First Amendment generally prevents government from proscribing
speech, or even expressive conduct, because of disapproval of the ideas
expressed. Content-based regulations are presumptively invalid.25
There is no distinction between content-based restrictions of speech, and
content-based restrictions of expressive conduct.
In Ex Parte Thompson this court reiterated: “The free speech protections
of the First Amendment are implicated when the government seeks to regulate
protected speech or expressive conduct.”26
23
Opinion below at 7.
24
Lo at 14 fn 6 (citing to R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)).
25
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted, emphasis added).
26
Ex parte Thompson, 414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), aff'd, 442
S.W.3d 325 (Tex. Crim. App. 2014) (emphasis added).
10
In the First Amendment context, in fact, “speech” includes expressive
conduct, sometimes called “symbolic speech.”27 The speech in this case,
however, is not expressive conduct but pure speech — words spoken or typed
into a computer.
This Court misled the First Court with an offhand remark in dicta in Ex
Parte Lo about Section 33.021(c) forbidding conduct: “it is the conduct of
requesting a minor to engage in illegal sexual acts that is the gravamen of the
offense.”28 The First Court made much of these dicta in its opinion.29 But in
Lo this Court also wrote:
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.” The State may not justify
restrictions on constitutionally protected speech on the basis that such
restrictions are necessary to effectively suppress constitutionally
unprotected speech, such as obscenity, child pornography, or the solicitation
of minors.30
27
See, e.g., Spence v. Washington, 418 U.S. 405 (1974) (affixing peace symbol to flag),
Tinker v. Des Moines Community School District, 393 U.S. 503 (1969) (wearing black arm
bands), West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (not saluting
the flag); Ex Parte Thompson, 442 S.W.2d 325 (Tex. Crim. App. 2014) (taking photographs).
28
Ex parte Lo, 424 S.W.3d at 17, reh’g denied (Mar. 19, 2014). This rationale does not apply
to the fantasy speech expressly criminalized by Section 33.021(c) and (d).
29
See Opinion Below at 6–7.
30
Ex parte Lo, 424 S.W.3d at 18.
11
So this Court in Lo correctly gave “the solicitation of minors” as an example
of “speech” — unprotected speech, but speech nonetheless.31 Even aside
from Lo, there are many cases describing solicitation as speech.32
The First Court’s error in this case (and its error in Maloney and Lo, and
the Beaumont Court’s error in Victorick) was not in treating “speech” as
“conduct,” but in treating a content-based restriction on expressive conduct
(“speech” in the First Amendment context) as something else.
The opposite of a content-based restriction on speech is not a conduct-
based regulation. It is, rather, a “time, place, or manner” restriction. A time,
31
This internal contradiction in Lo — calling solicitation at once “conduct” and “speech” —
illustrates why dicta are not binding.
32
See, e.g., United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Speech
attempting to arrange the sexual abuse of children is no more constitutionally protected than
speech attempting to arrange any other type of crime”) (emphasis added); Karwoski v. State,
867 So. 2d 486, 488 (Fla. Dist. Ct. App. 2004) (“In this case, it is … speech that amounts to
seduction, solicitation and enticement of a child to commit a crime that is prohibited)
(emphasis added); LaRose v. State, 820 N.E.2d 727, 730 (Ind. Ct. App. 2005) (“Indiana
Code section 35–42–4–6 criminalizes speech sexually soliciting an individual under the belief
that the individual solicited is a minor, which is a content-based regulation subject to strict
scrutiny”) (emphasis added); Arganbright v. State, 328 P.3d 1212, 1217 (Okla. Crim. App.
2014) (“This statutory provision causes it to be unlawful for any person to communicate with a
minor through the use of electronic technology for the purposes of facilitating, encouraging,
offering, or soliciting sexual conduct or communicating sexual or prurient interest with any
minor, or other individual the person believes to be a minor. Therefore, we find that the statute
regulates speech based upon its content or subject matter”) (emphasis added); State v. Rung,
774 N.W.2d 621, 630 (Neb. 2009) (“Various state courts considering statutes similar to §
28–320.02 have also rejected First Amendment challenges on the basis that speech to entice a
minor to engage in illegal sexual activity is not speech protected by the First Amendment”)
(emphasis added). There are certainly many more such cases.
12
place, or manner restriction is subject only to intermediate scrutiny.33 Section
33.021 is not a “time, place, or manner” restriction on speech because it is not
content-neutral. It is not content-neutral because the factfinder must consider
the content of the speech to determine whether it violates the law.
❧
Unprotected speech?
Whether a content-based restriction on speech such as Section 33.021 is
presumed to be invalid does not depend on whether the statute restricts
protected speech, but on whether it restricts speech based on its content. If, as
here, a statute restricts speech based on its content, it is presumed to be
invalid. The state might rebut the presumption of unconstitutionality by
showing that all of the speech forbidden by a statute was unprotected. It
cannot in this case, but in theory it might.
For example, if Section 33.021(a)(1) did not define “minor” to include a
person whom the defendant knows to be an adult, and if Section 33.021(d) did
not exclude the defenses of fantasy and lack of intent then Section 33.021(c)34
it would probably forbid only true solicitation, and the State could argue that
that itself was a rebuttal of the presumption of invalidity. But sex between
consenting adults, even those who pretend (“represent themselves”) to be
33
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
34
Indeed, the Texas Legislature has rewritten Section 33.021 to do just this.
13
children is not a crime, and solicitation without intent is not solicitation.
Because true solicitation requires the specific intent that a crime be imminently
committed, Section 33.021(c) regulates speech other than true solicitation.
Whether the restricted speech falls entirely into a category of
unprotected speech is the second step in the analysis, and the burden is on the
State to show that it does. Here, the statute restricts some protected speech—
fantasy and ageplay—as well as some unprotected speech—actual
solicitation—so the First Court should have found its way to the third step in
the analysis: strict scrutiny, with the burden on the State.
❧
Conclusion
Because Section 33.021 is a content-based restriction on speech, it is
presumptively invalid and the State has the burden of rebutting that
presumption by showing that the statute satisfies strict scrutiny.
The First Court’s application of the incorrect standard—presuming that
the statute is valid—alone would be reason enough for this Court to grant
review under Texas Rule of Appellate Procedure 66.3(c) even if the First
Court had accidentally arrived at the right substantive conclusion by applying
the wrong standard. It is axiomatic that it is more important that a court apply
the rules correctly than that it arrive at any particular result.
❧
14
Second Ground of Review: The First Court of Appeals erred when it held that
Section 33.021 of the Texas Penal Code, the Online Solicitation of a Minor
statute, is not void for overbreadth.
Having found that the statute is a content-based restriction on speech and is
presumed unconstitutional, this Court must next determine whether the
speech forbidden by the statute is wholly unprotected. If the statute forbids
only unprotected speech then it is a valid restriction on speech. If the statute
forbids protected speech as well as unprotected speech then the Court must
apply strict scrutiny. The burden is on the State to support a presumptively
unconstitutional content-based restriction on speech.
The State has failed to meet that burden.
❧
Other presumptions are also reversed.
In Maloney v. State the First Court of Appeals listed several “principles
governing constitutionality review:”
When reviewing the constitutionality of a statute, we presume that the
statute is valid and that the legislature has not acted unreasonably or
arbitrarily. If a statute can be construed in two different ways, one of which
sustains its validity, we apply the interpretation that sustains its validity. The
party challenging the statute carries the burden to establish its
unconstitutionality. We must uphold the statute if we can determine a
reasonable construction that will render it constitutional.35
35
Maloney v. State, 294 S.W.3d 613, 626 (Tex. App. — Houston [1st Dist. 2009, pet. ref’d.)
(cites omitted).
15
The presumption of Section 33.021’s invalidity, which follows from the
recognition that the statute is a content-based restriction on speech, has
interesting and important consequences, which are the converse of Maloney’s
“principles”:
• The presumption of invalidity creates a presumption that the legislature
has acted unreasonably or arbitrarily in passing Section 33.021 (because if
the legislature passed an unconstitutional statute, it acted unreasonably
or arbitrarily);
• Because of the presumption of invalidity, if Section 33.021 can be
construed in two different ways, one of which renders it invalid, the court
must apply the interpretation that renders it invalid: In Duncantell v. State
the Fourteenth Court wrote, “We begin our review of the
constitutionality of a statute with the presumption that the statute is
valid and assume the legislature did not act arbitrarily and unreasonably
in enacting the statute. Therefore, if a statute can be construed in two
different ways, one of which sustains its validity, we apply the
interpretation that sustains its validity.”36 Just as the presumption of
validity leads to the principle that the statute must be interpreted to
sustain its validity if possible, so does the presumption of invalidity leads
to the principle that the statute must be interpreted to sustain its
invalidity if possible;
• Because the statute is presumed to be invalid, the State carries the burden
to establish Section 33.021’s constitutionality;37 and
• Because the statute is presumed to be invalid, this Court must reject
Section 33.021 if it can determine a reasonable construction that will render
36
Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d) (emphasis added, cites omitted).
37
Ex parte Lo, 424 S.W.3d at 15; Ashcroft v. ACLU, 542 U.S. 656, 660 (2004).
16
it unconstitutional: In Ely v. State the Court of Criminal Appeals held
that “this [non-content-based] statute is vested with a presumption of
validity and this Court is duty bound to construe such statutes in such a
way as to uphold their constitutionality.”38 Just as courts are bound to
construe presumptively valid statutes in such a way as to uphold their
constitutionality, they are bound to construe presumptively invalid
statutes in such a way as to overturn them.
We presume that a statute that might be unconstitutionally applied will be
because we do not trust the State not to apply such a statute
unconstitutionally. To trust criminal prosecutors to resist applying a statute
unconstitutionally would be to abdicate courts’ responsibility to defend the
First Amendment.39
❧
Does Section 33.021 forbid only unprotected speech?
The second step in the contemporary analysis of a penal statute restricting
speech is to ask whether the statute forbids only unprotected speech. If a
statute forbids only unprotected speech—that is, speech that falls into a
recognized category of historically unprotected speech—then the court need
not apply strict scrutiny.
38
Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
39
See U.S. v. Stevens, 559 U.S. 460, 480 (2010) (“[T]he First Amendment protects against
the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an
unconstitutional statute merely because the Government promised to use it responsibly.”).
17
There are a few narrowly defined categories of historically unprotected
speech.
Among these categories are advocacy intended, and likely, to incite
imminent lawless action; obscenity; defamation; speech integral to criminal
conduct; so-called "fighting words”; child pornography; fraud; true threats;
and speech presenting some grave and imminent threat the government has
the power to prevent, although a restriction under the last category is most
difficult to sustain.40
All speech that does not fall into one of those categories is protected by the
First Amendment.
The only recognized category of historically unprotected speech into
which the speech restricted by Section 33.021 even arguably falls is the first:
speech intended and likely to incite imminent lawless action—in a word,
“incitement.”41
When it is read in isolation, Section 33.021(c) appears to forbid only
incitement — a communication with the intent that a real-world (that is, non-
speech) crime be committed:
(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
40
Alvarez, 132 S. Ct. at 2544 (citations omitted).
41
Some speech forbidden by Section 33.021 might incidentally be obscene, or integral to
criminal conduct, or present some grave and imminent threat the government has the power to
prevent. But as defined by Section 33.021, the speech forbidden is none of these things.
18
will engage in sexual contact, sexual intercourse, or deviate sexual
intercourse with the actor or another person.42
But including Sections 33.021(a)(1)(A), 33.021(d)(2), and 33.021(d)(3) in our
reading of the statute gives the lie to this perception. There are four scenarios
forbidden by Section 33.021; only one is incitement.
Either the defendant believes the complaining witness to be a child,43 or
the defendant does not believe the complaining witness to be a child.44
Either the defendant intends to have sex with the complaining witness or
the defendant does not intend to have sex with the complaining witness
(33.021(d)(2), (3)).
These two independent either-or conditions generate a matrix of four
scenarios:
42
Tex. Penal Code §33.021(c).
43
Tex. Penal Code § 33.021(a)(1)(B).
44
Tex. Penal Code § 33.021(a)(1)(A). Whether the complainant is a child is not
relevant under the statute.
19
D believes that CW is a D doesn’t believe that CW
child. is a child.
D intends to have sex
Speech is unprotected. Speech is protected.45
with CW
D does not intend to have
Speech is protected. Speech is protected.
sex with CW.
In three of these four scenarios, the defendant’s speech is constitutionally
protected.
Soliciting a child to meet for sex may be “directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action,” and so be unprotected under the Brandenburg test for unprotected
incitement.46
“Many long established criminal proscriptions—such as laws against
conspiracy, incitement, and solicitation—criminalize speech (commercial or
not) that is intended to induce or commence illegal activities.”47 Various anti-
child-solicitation statutes have been upheld. But as this Court noted in Lo,
45
The situation in which the CW is a child but D does not believe it might be an edge case, but
the speech would be protected in that case as well because the accused would have no intent
that a crime be committed.
46
See Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (“the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe advocacy … of law
violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action”).
47
United States v. Williams, 553 U.S. 285, 298 (2008). Following Williams’s language, we
might consider “solicitation” a tenth category of unprotected speech, separate from
20
statutes aimed at preventing the dissemination of harmful materials to
minors and solicitation of minors over the internet … share either of two
characteristics: (1) the definition of the banned communication usually
tracks the definition of obscenity…; or (2) the statutes include a specific
intent to commit an illegal sexual act, i.e., the actor intends to “solicit” or
“lure” a minor to commit a sexual act.48
Because Section 33.021 punishes people who do not intend to commit illegal
sexual acts by forbidding constitutionally protected speech (ageplay or
fantasy) as well as constitutionally unprotected speech (incitement or
solicitation) this Court must determine whether it meets strict scrutiny, that
is, whether it is necessary and narrowly drawn to satisfy a compelling state
interest.49
❧
Section 33.021 will fail strict scrutiny.
“To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to
serve a (2) compelling state interest and (3) narrowly drawn.”50 “In this
context, a regulation is ‘narrowly drawn’ if it uses the least restrictive means
of achieving the government interest.”51
“incitement.” That category would still require the intent that a crime be committed, so the
analysis would remain the same. Neither fantasy nor ageplay implies an intent that a crime be
committed.
48
Ex Parte Lo, 424 S.W.3d at 21.
49
Spoiler: it is not.
50
Ex parte Lo, 424 S.W.3d at 15.
51
Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).
21
Because the statute is presumed to be unconstitutional, the burden is on
the State to prove its constitutionality. The State has failed to do so. Section
33.021 serves a compelling state interest, but it is neither necessary nor the
least restrictive means to further that interest.
❧
There exists a compelling state interest.
The State has a compelling interest in preventing child abuse.
❧
Section 33.021 is not necessary.
The unprotected speech that Section 33.021 forbids—the actual solicitation of
a child to have sex—is also forbidden by Section 15.031 of the Texas Penal
Code:
Sec. 15.031. CRIMINAL SOLICITATION OF A MINOR.
(b) A person commits an offense if, with intent that an offense under Section 20A.02(a)(7) or
(8), 21.02, 21.11, 22.011, 22.021, 43.02, 43.05(a)(2), or 43.25 be committed, the person by
any means requests, commands, or attempts to induce a minor or another whom the person
believes to be a minor to engage in specific conduct that, under the circumstances surrounding
the actor's conduct as the actor believes them to be, would constitute an offense under one of
those sections or would make the minor or other believed by the person to be a minor a party to
the commission of an offense under one of those sections.
An attempt to have sex with a child is also forbidden by section 15.01 of the
Texas Penal Code.
Because everything forbidden by the remainder of Section 33.021 is
either forbidden by Section 15.031 (actual solicitation) and Section 15.01
22
(attempt) or constitutionally protected (fantasy, ageplay),52 Section 33.021 is
not necessary to achieve the compelling state interest of preventing child
abuse.
❧
Section 33.021 is not narrowly drawn.
To satisfy strict scrutiny, a statute must be the least restrictive means to
further the compelling state interest. The Texas Legislature has passed, and
the Governor has endorsed, a narrowing amendment to Section 33.021, which
limits “minor” to someone who is, or whom the defendant believes to be, a
child; and which restores the inferential-rebuttal lack-of-intent defenses
eliminated by subsection (d). Effective September 1, 2015, the amended
Section 33.021 demonstrates that the version of Section 33.021(c) at issue in
this case is not narrowly drawn to accomplish that compelling interest. Section
33.021 is not the least restrictive means to further the State’s interest in
preventing actual sexual abuse of children.
In a statement of intent, Judge Joan Huffman, the sponsor of the bill,
noted, “The current statute is overbroad. Though the statute was enacted to
impose sanctions upon those who engage in Internet conversations with
52
See Ex Parte Lo, 424 S.W.3d at 20 (“In sum, everything that Section 33.021(b) prohibits
and punishes is speech and is either already prohibited by other statutes (such as obscenity,
distributing harmful material to minors, solicitation of a minor, or child pornography) or is
constitutionally protected.”)
23
minors with an intent for physical contact to take place, the statute’s sexually
explicit communication provision contains no requirement that an actor ever
possess the intent to meet the child.”53
Under the 2015 statute as amended in 2015, “minor” means either a
child under 17 years of age or someone whom the defendant believes is under
17 years of age, so age-play is protected; and “lack of intent” and “fantasy”
are restored as inferential-rebuttal defenses, so fantasy talk is protected.54 In
other words, the Texas Legislature has corrected the very problems that make
the current Section 33.021 unconstitutional — problems that Judge Huffman
recognized, even though the courts have not yet recognized them.
The new Section 33.021 demonstrates that the broader statute at issue in
this case is not the least restrictive means to further the State’s interest in
preventing the actual sexual abuse of children.
❧
The unconstitutionally forbidden speech is substantial.
Because the statute is presumed to be unconstitutional, the burden was on the
State to prove its constitutionality. For the State to overcome the presumption
that the statute is unconstitutional it would have had to demonstrate that the
53
http://www.legis.state.tx.us/tlodocs/84R/analysis/html/SB00344I.htm
54
See Tex. Penal Code § 33.021 (2015), effective September 1, 2015.
24
overbreadth of the statute was not real and substantial. What does it mean that
a statute is not substantially overbroad? In Maloney the First Court wrote:
Considering the overly broad scope and purpose of Section 33.021, we have
been given no basis to believe that prosecutions of consenting adults
engaging in role-playing would amount to any more than a “tiny fraction”
of all prosecutions under the statute.55
But the problem with a statute that is overbroad under the First Amendment is
that it has a chilling effect on protected speech, and that chilling effect is not
mitigated by the State’s good intentions. So the question cannot be (as the
Maloney court implies) whether the State would prosecute consenting adults
engaging in role play (it is easy for any prosecutor to promise not to, but that
promise is binding on nobody else), but whether the State could prosecute such
adults.
While Mr. Wheeler has no burden beyond showing that the statute is a
content-based restriction on speech, he has presented uncontested evidence
that it is substantial.56 A search for books on Amazon.com
turns up more than 3,000 results.57
Although the number of people interested in ageplay may not be huge in
absolute numbers, neither is the number of people willing to solicit sex with
55
Maloney v. State, 294 S.W.3d 613, 628 (Tex. App.—Houston [1st Dist] 2009, pet. ref’d).
56
Please see CR 16–29, The Prevalence and Scope of Ageplay.
57
http://www.amazon.com/s/?url=search-alias%3Dstripbooks&field-
keywords=age+play+erotica.
25
actual children. For every person willing to engage in extreme human behavior
(here, sexual assault of children) there will always be many more people
interested in a tamer version (here, ageplay).
Substantial overbreadth is not to be measured in absolute terms, but “in
relation to the statute’s plainly legitimate sweep.”58 “Real and substantial in
relation to” does not mean “more than.” “One” is substantial in relation to
“ten,” but probably not in relation to “one million.”
The State has not even tried to carry its burden of showing that age-play
or fantasy is not a real and substantial category of speech, much less
succeeded.
Here is the First Court’s overbreadth analysis:
[W]e conclude that the legitimate reach of Penal Code Section 33.021(c) dwarfs the threat of its
arguably impermissible application to innocent ageplayers.
This “conclusion” is nothing more than a guess. While there is evidence in
the record of the prevalence of ageplay,59 there is no evidence of the
prevalence of actual solicitation of children—the legitimate reach of the
statute. Compared to the number of people interested in ageplay, how many
arrange meetings with children for sex?
58
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
59
On fetish site fetlife.com alone, more than 94,000 people admit an interest in ageplay. See
The Prevalence and Scope of Ageplay 11.
26
To show that the overbreadth was not real and substantial, the State may
not merely argue that most people aren’t ageplayers, nor promise that
ageplayers and fantasizers would not be prosecuted. It would have had to show
that the number of people who use the Internet for age-play or fantasy speech
is not real and substantial in comparison to the number of people who use the
Internet to arrange sex with children.
“Real and substantial” lies somewhere between “one can conceive of
some impermissible applications”60 and “unconstitutional in all
applications.” “In short, there must be a realistic danger that the statute itself
will significantly compromise recognized First Amendment protections of
parties not before the Court for it to be facially challenged on overbreadth
grounds.”61 “However, where the statute unquestionably attaches sanctions
to protected conduct, the likelihood that the statute will deter that conduct is
ordinarily sufficiently great to justify an overbreadth attack.”62
To rebut the presumption of Section 33.021’s unconstitutionality the
State must show that the protected speech is not substantial compared to the
legitimate reach of the statute. The State cannot do so.
60
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984).
61
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. at 801.
62
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. at 800
n. 19.
27
This is not a situation in which the statute forbids unprotected speech
and remains silent about the protected speech. Section 33.021 expressly
forbids fantasy speech by eliminating the defense of fantasy. If soliciting
speech with people who represent themselves (but are not believed) to be
children were not substantial in relation to soliciting speech with actual
children, the Texas Legislature would not have addressed such speech with
Section 33.021(a)(1). If fantasy speech and speech with no intent to meet were
not substantial, the Texas Legislature would not have addressed them in
Section 33.021(d). It is no counterargument to say that the Texas Legislature
intended only to eliminate defendants’ false claims that they knew their
correspondents to be adults, or that they did not intend to meet their
correspondents: in all other cases we trust juries to determine what defendants
believed and intended, and we do not eliminate valid and constitutionally
required defenses in the interest of preventing the abuse of those defenses.
For the State to overcome the presumption that the statute is
unconstitutional it would have to have demonstrated that the overbreadth of
the statute was not real and substantial. It would have to have shown that the
number of people who use the Internet for age-play or fantasy speech63 is not
63
The First Court has said elsewhere that “subSection 33.021(d) provides that an accused
cannot defend against an online solicitation of a minor charge by asserting that he was engaged
in a fantasy at the time of commission of the offense.” Maloney, 294 S.W.3d at 626.
28
real and substantial in comparison to the number of people who use the
Internet to arrange sex with children. The State has failed to do so.
❧
Conclusion
Because Section 33.021 forbids a substantial amount of protected speech, such
that it is neither necessary nor narrowly written to satisfy a compelling state
purpose, it is void.
Third Ground of Review: The First Court of Appeals erred when it held that
Section 33.021 of the Texas Penal Code, the Online Solicitation of a Minor
statute, is not void for vagueness.
Where, as here, First Amendment freedoms are implicated, the law must be
sufficiently definite to avoid chilling protected expression.64
A statute is vague if it interferes with free speech rights by causing
citizens to “steer far wider of the unlawful zone,” than they otherwise would
“if the boundaries of the forbidden areas were clearly marked.”65
Section 33.021 is vague because it is contradictory. In subsection (c) it
requires that an accused have “the intent that the minor will engage in sexual
contact, sexual intercourse, or deviate sexual intercourse,” but in subsection
(d)(2) it eliminates the inferential-rebuttal defense that “the actor did not
64
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).
65
Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
29
intend for the meeting to occur.” It is not possible for the accused both to
have the intent that the minor will engage in sexual contact and not to intend
for the meeting to occur.
“The unlawful zone” is the constitutionally unprotected speech of
arranging a meeting with the intent that a crime be committeed. Speech with
no intent that a meeting occur would be constitutionally protected. But
Section 33.021 at best leaves us in doubt whether this constitutionally
protected speech is forbidden by the statute.
The First Court resolved this conundrum by interpreting subsection
(d)(2) to “refer[] only to the solicitor’s intent post-solicitation”—that is, to
exclude a change-of-heart defense. The legal principle underlying the First
Court’s resolution is that “if a statute can be construed in two different ways,
one of which sustains its validity, we apply the interpretation that sustains its
validity.”66
That legal principle—that a court must apply the interpretation that
sustains a statute’s validity—is founded in the presumption of validity.67
66
Opinion below at 12–13.
67
See Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d) (“We begin our review of the constitutionality of a statute with the presumption that
the statute is valid and assume the legislature did not act arbitrarily and unreasonably in
enacting the statute. Therefore, if a statute can be construed in two different ways, one of
which sustains its validity, we apply the interpretation that sustains its validity.”) (emphasis
added).
30
Because that presumption does not apply to a content-based restriction on
speech, the rule does not apply to such a statute.
Indeed, because a content-based restriction on speech is presumed to be
invalid, if it can be construed in two different ways, one of which sustains its
validity, the court must apply the other. The First Court of Appeals erred by
construing subsection (d)(2) not to eliminate subsection (c)’s specific-intent
element.
Properly interpreted, Section 33.021 forbids “solicitation” that is not
intended to result in a meeting. People of common intelligence must
necessarily guess at the meaning of Section 33.021 and differ as to its
application. So even if Section 33.021 were not overbroad—if it did not punish
a substantial amount of constitutionally protected fantasy or ageplay—it
would be void for vagueness.
Conclusion
Because Section 33.021(d)(2) eliminates Section 33.021(c)’s specific-intent
element, Section 33.021 is it not sufficiently definite to avoid chilling protected
expression, and so is void for vagueness.
Prayer
Because the First Court of Appeals applied the wrong standard and reached
the wrong result, please grant discretionary review, order briefing, hear
argument, and reverse with an order that the indictment be dismissed.
31
Thank you,
Bennett & Bennett
By:
_________________________
Mark W. Bennett
917 Franklin Street, Fourth Floor
Houston, Texas 77007
713.224.1747
832.201.7770 fax
Attorneys for Mr. Wheeler
32
Certificate of Service
A copy of this Brief for Appellant has been served upon the State of Texas by
electronic filing and by email to Lisa McMinn at lisa.mcminn@spa.texas.gov,
to Brandy Robinson at brandy.robinson@austincounty.com, and to the
Attorney General at const_claims@texasattorneygeneral.gov.
Word Count
This petition uses Matthew Butterick’s Equity and Concourse typefaces in 14-
point. Margins are 1.5 inches, on principles suggested by Butterick’s
Typography for Lawyers.
According to Microsoft Word’s word count, this petition contains 6,858
words, not including the: caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix.
33
Appendix
Opinion of the First Court of Appeals
Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00868-CR
———————————
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
2
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.
3
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
4
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.
5
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
6
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
7
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
8
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.
9
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
10
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.
11
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
12
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
13
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.
14
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.
15
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