Ex Parte Oscar Calvin Fisher , 2015 Tex. App. LEXIS 12596 ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00098-CR
EX PARTE OSCAR CALVIN FISHER
On Appeal from the 106th District Court
Garza County, Texas
Trial Court No. 14-2685, Honorable Carter T. Schildknecht, Presiding
December 10, 2015
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Oscar Calvin Fisher, appeals from the denial of a pre-trial writ of
habeas corpus. By three issues,1 appellant contends that section 33.021 of the Texas
Penal Code2 is: (1) unconstitutionally overbroad, in violation of the First Amendment to
the United States Constitution;3 (2) unconstitutionally vague, in violation of the
1
Appellant’s brief initially contained an issue arguing that section 33.021(b) of the Texas Penal
Code was unconstitutional. That issue has been resolved by the Texas Court of Criminal Appeals in Ex
parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013). The State has conceded error on that issue and has
abandoned count 2 of the indictment.
2
See TEX. PENAL CODE ANN. § 33.021 (West Supp. 2015). Further reference to the Texas Penal
Code will be by reference to “section ____” or “§ ____.”
3
See U.S. CONST. amend. I.
Fourteenth Amendment;4 and (3) unconstitutionally violates Article I, section 8, of the
United States Constitution, also known as the Commerce Clause.5 We will affirm.
Factual and Procedural Background
Appellant was indicted in count one of a two-count indictment with intentionally
and knowingly soliciting a minor, J1 (pseudonym), to meet appellant with the intent that
J1 would engage in sexual contact, sexual intercourse, and deviate sexual intercourse
with appellant. As such, count one alleges a violation of section 33.021(c) of the Texas
Penal Code.
Appellant filed a pre-trial writ of habeas corpus, which the trial court denied.
Appellant now brings forth his three constitutional challenges to the statute as outlined
above. We will affirm.
Penal Code Provisions
Section 33.021(c) states:
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.
Additionally, section 33.021(a)(1) defines “minor” as:
(A) an individual who represents himself or herself to be younger than 17
years of age; or
4
See id. amend. XIV.
5
See id. Art. I, § 8.
2
(B) an individual whom the actor believes to be younger than 17 years of
age.
Finally, section 33.021(d) provides:
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.
With these provisions in mind, we next turn to the issue of the question of the proper
standard of review that the Court must use in assessing the allegations of constitutional
infirmity.
Standard of Review
We review a facial challenge to the constitutionality of a statute as a question of
law that we review de novo. See Ex parte Lo, 424 S.W.3d at 14-15. Traditionally, we
begin with a presumption that the statute is valid and that the legislature did not act
unreasonably or arbitrarily. See id. at 15. In such a review, the party challenging the
constitutionality of the statute has the burden of establishing the statute’s
unconstitutionality. See id. We are taught that we should seek to uphold the statute as
constitutional. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
Under the traditional approach, we construe the statute according to its plain
language, unless the language is ambiguous or would lead to absurd results that the
legislature could not have intended. See Williams v. State, 253 S.W.3d 673, 677 (Tex.
Crim. App. 2008). Pursuant to the Texas Government Code, we read the words and
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phrases in context and construe them according to the rules of grammar and common
usage. See TEX. GOV’T CODE ANN. § 311.011(a) (West 2013). After doing so, if there is
a reasonable construction that renders the statute constitutional, we defer to that
construction. See Peraza, 467 S.W.3d at 514.
However, appellant contends that the statute at issue is an attempt by the State
to restrict and punish speech based on its content and, thus, the usual presumption is
reversed. See Ex parte Lo, 424 S.W.3d at 15. Content-based regulations, that is, those
laws that distinguish favored from disfavored speech based on the idea expressed, are
presumptively invalid, and the State bears the burden to rebut that presumption. See id.
(citing Ashcroft v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004)).
Further, the United States Supreme Court has applied the most exacting scrutiny to
regulations that suppress, disadvantage, or impose differential burdens upon speech
because of its content. See id. (citing Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.
622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994)). Therefore, the issue before the
Court is the correct standard of review to apply in this context.
The State urges the Court to use the traditional approach to the question of the
constitutionality of the statute. The State’s position is anchored in the Texas Court of
Criminal Appeals’ decision in the Lo case. In Lo, the Texas Court of Criminal Appeals
was dealing directly with a facial challenge to subsection (b) of section 33.021. See §
33.021(b) (sexually explicit communications);6 Ex parte Lo, 424 S.W.3d at 14. The
6
§ 33.021(b) read as follows: “A person who is 17 years of age or older commits an offense if,
with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by
electronic mail or text message or other electronic message service or system, or through a commercial
online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes
sexually explicit material to a minor.”
4
court pointed out that the intermediate appellate court had used the wrong standard of
review, the traditional presumption of validity, instead of the presumption-of-invalidity
standard required when reviewing a First Amendment, content-based statute. See Ex
parte Lo, 424 S.W.3d at 16. Following this explanation, the court then entered into a
discussion of section 33.021(c). See id. This discussion was by way of contrast to the
content-based prohibitions of section 33.021(b). See id. at 16-17. During this portion of
the opinion, the court delineated what it felt was the conduct that was the gravamen of
the offense under section 33.021(c), that being requesting a minor to engage in illegal
sexual acts. See id. Thus, arose the conflict between conduct versus speech in
determining the proper standard of review. The State essentially contends that Lo’s
discussion sets forth that the traditional standard of review is the proper vehicle to
analyze a challenge to section 33.021(c).
Appellant, on the other hand, contends that such an analysis of whether the
statute is directed at conduct versus speech is a false dichotomy. This is so, according
to appellant, because the Texas Court of Criminal Appeals did not distinguish between
expressive conduct and other speech. Further, according to appellant, the court’s
discussion of section 33.021(c) was an “off-handed remark in dicta.” This would lead to
the conclusion that the true analysis of appellant’s contentions must be under a
presumption-of-invalidity standard that the Texas Court of Criminal Appeals used in
analyzing section 33.021(b).
At this juncture, it is worth noting that three of our sister intermediate appellate
courts have reviewed contentions that section 33.021(c) is facially unconstitutional. The
1st District Court of Appeals undertook such a challenge in the case of Maloney v. State,
5
294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The Maloney court
applied the traditional standard of review, that is, a presumption that the statute is
constitutional. See id. at 626. After applying the traditional standard of review, the court
concluded that the statute was not overbroad or unconstitutionally vague. See id. at
628-29. As noted above, there was no petition for discretionary review to the Texas
Court of Criminal Appeals. Maloney was decided before the Texas Court of Criminal
Appeals handed down the Lo opinion.
After the Maloney opinion, the 4th District Court of Appeals handed down an
opinion in Ex parte Zavala, 421 S.W.3d 227 (Tex. App.—San Antonio 2013, pet. ref’d).
As in this case, Zavala was an appeal from the denial of a pre-trial writ of habeas
corpus. Id. at 230. Based upon the Texas Court of Criminal Appeals’ decision in Lo,
the Zavala court applied the traditional standard of review and upheld the
constitutionality of section 33.021(c). See id. at 231-32. As noted in the original
citation, the Texas Court of Criminal Appeals refused the petition for discretionary
review.
Next, the 9th District Court of Appeals handed down its opinion in Ex parte
Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429 (Tex. App.—Beaumont
May 21, 2014, pet. ref’d) (mem. op., not designated for publication), cert. denied,
Victorick v. Texas, 135 S. Ct. 1557, 191 L. Ed. 2d 638 (2015). Victorick was an appeal
of a pre-trial writ of habeas corpus. Again, our sister court applied the traditional
standard of review to the facial challenge to section 33.021(c). See id. at *4-6. When
discussing the issue of conduct versus speech, the Victorick court again relied upon the
Texas Court of Criminal Appeals’ decision in Lo. See id. at *7-8. However, this was not
6
the only support for the conduct analysis. The Victorick court also relied upon the
United States Supreme Court case of Broadrick v. Oklahoma, 413 U.S. 601, 615, 93. S.
Ct. 2908, 37 L. Ed. 2d 830 (1973), for the proposition that if the statute punishes
conduct rather than speech, the courts apply a “rational basis” level of review to
determine if the statute bears a rational relationship to a legitimate state purpose. Ex
parte Victorick, 2014 Tex. App. LEXIS 5429, at *4. The Victorick court upheld the
constitutionality of section 33.021(c) and the Texas Court of Criminal Appeals refused
the petition for discretionary review.
Finally, the 1st District Court of Appeals issued its opinion in Ex parte Wheeler,
___ S.W.3d ___, No. 01-14-00868-CR, 2015 Tex. App. LEXIS 10117 (Tex. App.—
Houston [1st Dist.] Sept. 29, 2015, pet. filed). In Wheeler, the court applied the
traditional standard of review, citing the Lo opinion for authority and upheld the
constitutionality of section 33.021(c). See id. at *5, *9, *13.
Thus, at this juncture, each court that has considered the issue of the proper
standard of review has come down on the side of the traditional standard of review.
That is, they have all refused to apply the presumption-of-invalidity that the Texas Court
of Criminal Appeals used in analyzing the facial unconstitutionality of section 33.021(b).
Having considered the current state of the law regarding allegations that section
33.021(c) is facially unconstitutional, we will apply the traditional standard of review.
We do so because the prohibited act in section 33.021(c) is the conduct of requesting a
minor to engage in illegal sexual acts. Ex parte Lo, 424 S.W.3d at 16-17. In addition to
the teachings of Lo and the cases of the other Texas intermediate courts of appeals’
cases we have cited, we note that the United States Supreme Court has advised that
7
“where conduct and not merely speech is involved” they view an overbreadth challenge
differently than where speech alone is involved. See New York v. Ferber, 458 U.S. 747,
770, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982).
Overbreadth Challenge
Remembering that it is the burden of appellant to demonstrate that the statute at
issue is facially unconstitutional, see Ex parte Lo, 424 S.W.3d at 15, we begin with the
proposition that, “[b]ecause 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.’” See Ferber, 458 U.S.
at 769 (citing Broadrick 413 U.S. at 613). Thus, we are taught to be very circumspect in
holding that a statute is facially unconstitutional.
How then do we analyze the statute at issue? First, what is the interest that the
State is attempting to address? The Lo opinion gives insight into that inquiry when the
Texas Court of Criminal Appeals states,
Such solicitation statutes exist in virtually all states and have been
routinely upheld as constitutional because “offers to engage in illegal
transactions [such as sexual assault of a minor] are categorically excluded
from First Amendment protection.”
Ex parte Lo, 424 S.W.3d at 16. This is a legislative judgment which would, on its face,
pass muster under the First Amendment. See Ferber, 458 U.S. at 759. Our
determination of the State interest that the statute is attempting to address, in this case
8
the solicitation of minors for sexual exploitation, leads us to consideration of the
application of appellant’s facial constitutional challenge.
Appellant contends that the statute is facially unconstitutional because of the
definitions of minor, as found in section 33.021(a)(1), and because section 33.021(d)
excludes defenses that the actor did not intend for the meeting to occur or the actor was
engaged in fantasy, also known as “age play.” Appellant’s contentions seem to be that,
because of the interplay between the definition of minor and the exclusion of defenses,
there is a substantial number of consenting adults who would fall prey to this statute.
To support this proposition, appellant cites the Court to one article, “The Prevalence and
Scope of Ageplay,” by Paul J. Dohearty and a citation to a website that purports to
contain over 3,000 results for the key words “age play.” This, in turn, leads appellant to
contend that the overbreadth involved is “substantial.” See Ferber, 458 U.S. at 769.
Such a finding by this Court would then trigger the further finding that the statute was
constitutionally infirm and thus allow us to invalidate it on its face. See id. (citing
Broadrick, 413 U.S. at 613).
We do not agree with appellant’s assessment of the facts before the trial court
and, thus, the facts before this reviewing court. The cited article appears to be a self-
published article by Mr. Dohearty, who also goes by the nom de guerre of Paul Rulof,
which does not contain any indication that it is a professional publication or that it is
subject to any peer review standards. In fact, a quick read of the article leads to the
conclusion that it is, at best, an anecdotal account of the observations of a layman
regarding a subject matter that interests him. As to the website notation under the key
words “age play,” there is nothing indicating what the publications are, the reach of the
9
publications, or whether any of these publications are expert treatises that have been
subject to any type of peer review. For this Court to conclude that the overbreadth is
substantial based upon these references would be to abandon our determination that
the standard of review places the burden of establishing the statute’s unconstitutionality,
in this case, that the overbreadth is substantial, upon the party challenging the
constitutionality. See Ex parte Lo, 424 S.W.3d at 15. This we may not do. We hold
that section 33.021(c) is not unconstitutionally overbroad. We, therefore, overrule
appellant’s first issue.
Vagueness Challenge
Appellant’s second issue contends that section 33.021 is unconstitutionally
vague in violation of the Fourteenth Amendment to the United States Constitution. See
U.S. CONST. amend. XIV. As applicable in this case, the Fourteenth Amendment
provides that, “No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law . . . .” See id. Appellant’s contention
is that section 33.021(d) eliminates the intent element of 33.021(c). As a result of this
interaction, appellant argues that a person of ordinary intelligence is denied a
reasonable opportunity to know what conduct is prohibited. Appellant cites Connally v.
Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926), and State v.
Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006) (holding the void-for-
vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited),
in support of his contention.
10
Section 33.021(c) provides that an actor commits an offense when he knowingly
solicits a minor to meet with the intent that the minor will engage in sexual contact,
sexual intercourse, or deviate sexual intercourse with the actor or another person. See
§ 33.021(c). Thus, the mens rea is provided in clear language. According to appellant,
the problem is that section 33.021(d) then dispenses with the intent element. Section
33.021(d) provides that it is not a defense to prosecution 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 fantasy at the time of commission of the offense. See § 33.021(d).
In analyzing appellant’s proposition, we are faced with two interpretations of the
meaning of section 33.021(d). Appellant concludes that, from reading the plain
language of section 33.021(d), the statute has internal inconsistency that has the effect
of dispensing with the intent requirement. One reading of the plain language leads to
the conclusion that the mens rea is focused on the time of the solicitation. See Ex parte
Wheeler, 2015 Tex. App. LEXIS 10117, at *12-13; Ex parte Victorick, 2014 Tex. App.
LEXIS 5429, at *19. On the other hand, appellant says that the denial of the defenses
relates back to the time of the solicitation.
We conclude that Wheeler and Victorick are correct in their respective
conclusions. We adopt these opinions for two reasons. First, the societal issue being
addressed, the solicitation of minors to engage in sexual activity, is an area of
significant importance. See Ex parte Lo, 424 S.W.3d at 21 (noting that “[t]here 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”). Second, when
faced with two conflicting constructions of a statute, one of which sustains its validity,
11
we apply the interpretation that sustains that validity. See Ex parte Wheeler, 2015 Tex.
App. LEXIS 10117, at *12. The prohibitions against raising the defenses enumerated in
section 33.021(d) apply only post-solicitation. See id. That is to say, the accused will
not be entitled to a defensive charge 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 fantasy at the time
of commission of the offense. Accordingly, we overrule appellant’s second issue.
Dormant Commerce Clause Challenge
Appellant’s final issue contends that the statute is unconstitutional because it
unduly burdens interstate commerce by attempting to place regulations on Internet
users everywhere by forbidding online age-play everywhere. Appellant’s contention is
grounded in the supremacy of the United States Congress to legislate in this area as
provided for in the Commerce Clause. See U.S. CONST. art. I, § 8. According to
appellant’s theory, by the application of section 33.021, Texas is attempting to regulate
communications that may be occurring outside of the state and this attempted
regulation is a burden on interstate commerce that is disproportionate to local benefits.
Appellant cites the Court to Am. Library Ass’n v. Pataki, 969 F. Supp. 160, 163
(S.D.N.Y. 1997), to support his theory.
Our analysis of the Pataki decision leads to the conclusion that the factual setting
of Pataki is distinguishable from the factual pattern before the Court. In Pataki, the
court was addressing a New York statute that criminalized communications that
depicted actual or simulated nudity, sexual conduct, or sado-masochistic abuse via
computer communications. See id. at 162. Missing from the prohibitions declared
12
unconstitutional in Pataki is any type of prohibition regarding solicitation of a minor for
the purposes of engaging in sexual contact, sexual intercourse, or deviate sexual
intercourse. This is telling in our opinion because, later in Pataki, the author points out
that the plaintiffs were not challenging the sections of the statute that criminalized an
adult’s actions in luring children into sexual contact by communicating with them via the
Internet. See id. at 179.
With this observation in mind, we turn to the test enunciated by the United States
Supreme Court when dealing with a Commerce Clause challenge to a statute. See
Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 23 L. Ed. 2d 174 (1970).
According to Pike, “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.” Id. Though this maxim has evolved over the following years
of United States Supreme Court jurisprudence, the applicable portion, the balancing
between the putative local benefits and inquiry into whether the burden imposed on
interstate commerce is clearly excessive, is still the applicable inquiry. See United
Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 346, 127 S.
Ct. 1786, 167 L. Ed. 2d 655 (2007).
We first point out that appellant is not contending that the statute is not acting
even-handedly. With regard to the putative local benefits of the statute at issue, it is
beyond contention that stopping the solicitation of minors via the Internet is of
paramount local importance. See Ex parte Lo, 424 S.W.3d at 21. Whether the statute’s
effect on interstate commerce is merely incidental or excessively burdensome is the
13
next inquiry. Pike, 397 U.S. at 142. In regard to this inquiry, there is nothing before the
Court that would guide our analysis, save and except for appellant’s simple assertion
that the burden on interstate commerce is disproportionate to the local benefits. There
is nothing before us to indicate how and to what extent this statute burdens interstate
commerce. From the perspective of the Court, any effect on interstate commerce would
be merely incidental. Such, incidental effect on interstate commerce is not sufficient for
us to declare the statute unconstitutional under the Commerce Clause. See id.; see
also Ex parte Wheeler, 2015 Tex. App. LEXIS 10117, at *15.
Further, the State has pointed to cases in other states where similar statutes
have been held constitutional in the face of a Commerce Clause challenge. See State
v. Snyder, 155 Ohio App. 3d 453, 467 (Ohio Ct. App. Third Dist. 2003); State v.
Colosimo, 142 P.3d 352, 356-57 (Nev. 2006); People v. Hsu, 82 Cal. App. 4th 976, 983
(Cal. App. First App. Dist., Div. Five 2000, rev. denied). Accordingly, we hold that
section 33.021 does not violate the Commerce Clause and appellant’s third issue is
overruled.
Conclusion
Having overruled all of appellant’s issues, the trial court’s judgment denying
habeas corpus relief is affirmed.
Mackey K. Hancock
Justice
Publish.
14