Opinion
No. 04-15-00459-CR
04-27-2016
EX PARTE Adam Wayne INGRAM
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2015W0279
Honorable Jefferson Moore, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
This appeal stems from the trial court's denial of Appellant Adam Wayne Ingram's pretrial writ of habeas corpus asserting Texas Penal Code sections 33.021(c) and (d) are unconstitutional. Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015) (current version at TEX. PENAL CODE ANN. § 33.021). Having previously determined section 33.021(c) is not unconstitutional, we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2014, Ingram was indicted for online solicitation of a minor, in violation of Texas Penal Code 33.021, alleged to have occurred on May 21, 2013. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015).
Texas Penal Code section 33.021 is titled "Online Solicitation of a Minor." On the date of Ingram's alleged offense, the pertinent sections read as follows:
(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
See id.(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.
On July 14, 2015, Ingram filed his second Application for Pre-Trial Writ of Habeas Corpus Seeking Relief From Facially Unconstitutional Statute predicated on the facial unconstitutionality of Texas Penal Code sections 33.021(c) and 33.021(d). See id. After hearing the argument of counsel, the trial court denied relief and this appeal ensued.
We first turn to court's jurisdiction.
APPELLATE JURISDICTION
A. Arguments of the Parties
The State contends this court is without jurisdiction because the trial court heard the identical issues in a previous petition for writ of habeas corpus and, because Ingram failed to timely file his notice of appeal from that order, the trial court was without jurisdiction to withdraw or vacate its order issued five months previously. Therefore, when Ingram filed his second petition, he was precluded from raising identical issues raised in the initial petition. The State further argues that when the trial court denied Ingram's initial petition for writ of habeas corpus, the ruling became the "law of the case."
Ingram contends the State waived any challenge to proper notice and further argues that the subsequent petition, which included additional grounds for argument and review, was not identical to the initial petition.
B. Procedural History
On August 12, 2013, attorney Joe Gonzales filed his notice of appearance as retained counsel for Ingram. One year later, on August 13, 2014, attorney Don Flanary filed his notice of appearance as co-counsel with Joe Gonzales.
1. January 5, 2015—Ingram's First Petition for Writ of Habeas Corpus
On January 5, 2015, Flanary filed a pretrial petition for writ of habeas corpus asserting facial challenges to Texas Penal Code sections 33.021(c) and (d). See id. On February 5, 2015, the trial court denied the application. The trial court's order found "said motion, [was] heard on the merits." The record substantiates the trial court's order was sent by facsimile to Gonzales, but not to Flanary. Ingram did not file a notice of appeal of the trial court's February 5, 2015 order.
2. July 7, 2015—Ingram's Second Petition for Writ of Habeas Corpus
On July 7, 2015, after learning the previous petition was denied, Flanary filed a subsequent petition for writ of habeas corpus and a motion to set aside the trial court's February 5, 2015 order.
On July 14, 2015, the matter was called for hearing and the trial court allowed the State and Ingram to make arguments regarding the jurisdictional question and the merits of the constitutional challenge to section 33.021(c). The trial court heard the motion and arguments on Ingram's July 7, 2015 petition, and explained as follows:
My concern is I told the defense attorney, Mr. Flanary, he would have a hearing that did not happen. And when it was denied, there was no notice given as to that denial on that. And then I also believe that writ under that cause number is not an application that can honestly be filed under that cause number, so I don't think my order has any effect as far as that cause number on the writ is concerned.
I note the State's position. I overrule the State and I'm going to then listen and hear this application . . . . Having heard that, Mr. Flanary, I'm going to deny your application.
C. Jurisdiction Over Ingram's Second Petition for Writ of Habeas Corpus
1. Requirements for Appeal
"'An order denying relief on the merits is a final judgment in the habeas corpus proceeding,'" and is, therefore, immediately appealable. Abdygapparova v. State, No. 04-14-00393-CR, 2015 WL 3505101, at *1 (Tex. App.—San Antonio June 4, 2015, pet. ref'd) (mem. op., not designated for publication) (citing Greenwell v. Court of Appeals for Thirteenth Judicial Dist, 159 S.W.3d 645, 649 (Tex. Crim. App. 2005)). As with any other appeal, the general rule is that a defendant appealing the denial of a petition for writ of habeas corpus "has thirty days from the date of an appealable order to file a notice of appeal." Ex parte Matthews, 452 S.W.3d 8, 10 (Tex. App.—San Antonio 2014, no pet.) (citing TEX. R. APP. P. 26.2(a)(1)); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)). "'If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.'" Ex parte Matthews, 452 S.W.3d at 11 (quoting Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012)); see also Olivo, 918 S.W.2d at 522.
"There is no right of appeal from a refusal to issue a writ of habeas corpus when the trial court did not consider and resolve the merits of the petition." Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see also Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref'd) ("Neither the order—nor anything else in the record before us—reflects that the trial court considered the merits of appellant's petition."). "The crucial question to be answered is not whether the trial court issued the writ, but whether the court considered and resolved the merits of the petition." Purchase, 176 S.W.3d at 407.
2. Finality of the February 5, 2015 Order
The State contends the trial court's February 5, 2015 order denying Ingram's petition for writ of habeas corpus was an appealable order. We disagree.
Unlike Ex parte Matthews, 452 S.W.3d at 10, the record before this court clearly establishes the trial court did not hold a hearing, did not take arguments of counsel, and did not make a determination on the merits. Accordingly, we conclude the February 5, 2015 order was not a final, appealable order. See Purchase, 176 S.W.3d at 407.
3. Finality of the July 14, 2015 Order
Because the February 5, 2015 order was not a final order, the trial court possessed jurisdiction to rule on the merits of the second petition for writ of habeas corpus filed on July 7, 2015. Furthermore, because the trial court held a hearing on the July 7, 2015 petition, and resolved the petition on the merits, the trial court's ruling on the second petition was a final, appealable order, and this court has jurisdiction over the matter.
4. Law of the Case
"The 'law of the case' doctrine provides that an appellate court's resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue." State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014) (emphasis added) (citing Carroll v. State, 101 S.W.3d 454, 461 n.35 (Tex. Crim. App. 2003)). "In other words, when the facts and legal issues are virtually identical, they should be controlled by an appellate court's previous resolution." See id. (emphasis added). The trial court's previous ruling on a petition for writ of habeas corpus is not an appellate court's previous resolution and, thus, the law of the case doctrine is inapplicable. See id.
Having determined this court has jurisdiction over this matter, we turn to the merits of the trial court's July 14, 2015 order and, specifically, whether Texas Penal Code section 33.021(c) is facially unconstitutional.
CONSTITUTIONALITY OF TEXAS PENAL CODE SECTIONS 33.021(C) AND (D)
A. Standard of Review
The constitutionality of a criminal statute is reviewed de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref'd) (citing Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007)). "In determining the constitutionality of a statute that does not restrict speech based on its content, we begin by presuming the statute is valid, and that the legislature did not act unreasonably or arbitrarily in enacting the statute." Ex parte Zavala, 421 S.W.3d at 231. "The party challenging the statute has the burden to establish it is unconstitutional." Ex parte Zavala, 421 S.W.3d at 231 (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)); accord Ex parte Lo, 424 S.W.3d at 15.
This presumption of validity, however, does not apply when the speech the government seeks to restrict is based on content. Ex parte Lo, 424 S.W.3d at 15. A regulation that is content-based is presumptively invalid, and it is the government's burden to rebut that presumption. Id.
We apply the appropriate presumptions and burdens to Ingram's individual arguments.
B. Facial Challenges to a Statute
Ingram makes a facial challenge to the statute. As such, his argument is not based on an application of the specific facts of this case; instead, Ingram maintains the language of the statute itself renders the statute unconstitutional. "A claim that a statute is unconstitutional 'on its face' is a claim that the statute, by its terms, always operates unconstitutionally." Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). In other words, a facial challenge requires the defendant to "establish that the statute always operates unconstitutionally in all possible circumstances." State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); see also Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990) (reiterating the individual challenging the statute bears the burden of establishing its unconstitutionality).
As the reviewing court, we consider the "statute only as it is written, rather than how it operates in practice." State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). We further "presume that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily." See Rodriguez, 93 S.W.3d at 69.
C. Texas Penal Code Section 33.021
Ingram contends that section 33.021 is unconstitutional in four ways: (1) it violates Ingram's Due Process rights; (2) it is unconstitutionally overbroad because its content-based restrictions severely criminalize protected speech; (3) it is unconstitutionally vague because it is open to different meanings and applications; and (4) it unduly and impermissibly burdens interstate commerce in violation of the Dormant Commerce Clause.
We address each individually.
1. Due Process Violations
Ingram argues that Texas Penal Code section 33.021 is unconstitutional because it violates his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution, his right to due course of law under article I, section 19 of the Texas Constitution and his right to present a defense under the Sixth Amendment of the United States Constitution. More specifically, Ingram contends that section 33.021(d) bars a defendant from raising the defense that he did not intend for the meeting to occur. It also simultaneously denies a defendant the right to present a defense or put on evidence to show that there was no intention to actually meet with a "minor." In other words, the defendant is denied the right to raise a defense that he was merely engaged in a fantasy exchange. Ingram argues these limitations restrict defending against the crux of the offense—his intent at the time of the alleged request, and thus, negate the mens rea requirement.
This court previously concluded that Texas Penal Code section 33.021(c) contains a mens rea requirement. Ex parte Zavala, 421 S.W.3d at 232 (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)). The elements necessary for conviction require the State to prove that Ingram "knowingly solicited" a minor to meet another person with the intent that the minor would engage in sexual activity. As we previously held, the requirement that "the defendant must solicit 'with the intent that the minor will engage in sexual contact' . . . operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct." Id. While 33.021(d) may not be a defense in and of itself, subsection (d) may be a mere factor or element toward a valid defense—such as no intent. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015). Accordingly, we disagree with Ingram's argument that subsection (d) negates the mens rea requirement of subsection 33.021(c). Id. We conclude Ingram failed to prove the statute violates the Due Process Clause.
2. Overbreadth
Ingram next argues section 33.021(c) is unconstitutionally overbroad on its face because it is a content-based restriction that severely criminalizes a substantial amount of speech protected by the First Amendment. More specifically, Ingram contends the statute is a content-based regulation because it does not require that the actor intend to solicit a minor to meet another to engage in sex; rather, according to Ingram, it criminalizes the discussions and requests of minors to meet for sex when there is no intention to have the minors meet for sex.
The State counters that (a) the statute does not implicate First Amendment speech protections, because offers to engage in illegal transactions—such as sexual assault of a minor—are categorically excluded from First Amendment protection; and (b) the statute does not include within its sweep a substantial amount of protected speech by its potential application to adults engaging in child-rape fantasy. See Ex parte Lo, 424 S.W.3d at 16-17 (noting that subsection (c) of section 33.021 restricts conduct, not speech, and that "offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection") (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)).
The First Amendment's protections are only implicated where the government seeks to regulate protected speech. See Scott v. State, 322 S.W.3d 662, 668-69 (Tex. Crim. App. 2010), abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014). A statute is content-based if the state must look at the content of the speech to determine if the speaker has broken the law. Ex parte Lo, 424 S.W.3d at 15 n.12. The individual challenging a conduct-based regulation bears the burden to demonstrate that the First Amendment even applies. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984).
In Ex parte Lo, 424 S.W.3d at 16-17, the Texas Court of Criminal Appeals distinguished the unconstitutional speech prohibition of sexually explicit communications provision in subsection (b) from the conduct-based prohibition of the solicitation provision in subsection (c). It is "the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the [subsection (c)]" and "'offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.'" Id. at 16-17 (quoting United States v. Williams, 553 U.S. 285, 297 (2008)) (second alteration in original); see also Ex parte Wheeler, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet ref'd) (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)) (holding "section 33.021(c) regulates conduct and unprotected speech"); Ex parte Zavala, 421 S.W.3d at 231-32 (concluding section 33.021(c) is a conduct-based statute subject to a presumption that the statute is valid). Moreover, the amount of hypothetically protected speech that Texas Penal Code section 33.021(c) includes in its sweep is utterly insubstantial in comparison to the legitimate interests advanced by the statute. See Ex parte Lo, 424 S.W.3d at 21 (citing TEX. PENAL CODE ANN. § 33.021(c)) ("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.").
Accordingly, because the statute does not implicate First Amendment speech protections and does not include within its sweep a substantial amount of protected speech, we conclude section 33.021(c) is not overbroad. See Ex parte Lo, 424 S.W.3d at 16-17, 21; see also Ex parte Wheeler, 478 S.W.3d at 94 (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)) (rejecting defendant's contention that section 33.021(c) as combined with subsection (d) was unconstitutionally overbroad because it prohibited adult from soliciting fellow adult pretending to be child as part of fantasy); Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at *5 (Tex. App.—Beaumont May 21, 2014, pet. ref'd) (mem. op., not designated for publication) (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)) (rejecting defendant's argument that section 33.021(c) was unconstitutionally overbroad because it criminalized otherwise legal communications with person who could be older than seventeen); Maloney v. State, 294 S.W.3d 613, 626-28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015)) (rejecting defendant's assertion that section 33.021(c) as combined with subsection (d) was unconstitutionally overbroad because it prohibited consenting adults from engaging in fantasy age-play).
3. Vagueness
Ingram next argues sections 33.021(c) and (d) are unconstitutionally vague because the statute forbids "solicitation" that is not intended to result in a meeting. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015). Due to a contradiction between subsections (c) and (d) as to the required intent, he opines the statute is unconstitutionally vague in all of its applications. See Exparte Zavala, 421 S.W.3d at 231. Ingram further contends the result requires individuals guess at the statute's meaning and allows for differences in its application.
The State counters that section 33.021(c)'s solicitation offense—which requires the actor to solicit a minor to meet with the intent that the minor will engage in sexual activity—is not rendered unconstitutionally vague by the defense-preclusion provision of § 33.021(d)—which states that it is not a defense that the actor did not intend for the meeting to occur. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015).
"[A] statute is void for vagueness if its prohibitions are not clearly defined." State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). The doctrine further "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement." Id. However, "a statute is not unconstitutionally vague merely because the words or terms employed in the statute are not specifically defined." Maloney, 294 S.W.3d at 628 (citing Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988)) (noting that words not specifically defined in a statute are given their plain meaning); see also Holcombe, 187 S.W.3d at 499.
In Ex parte Zavala, 421 S.W.3d at 232, this court concluded that Texas Penal Code sections 33.021(c) and (d) are not contradictory and rejected Zavala's vagueness challenge based on an asserted contradiction.
The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Indeed, it is the requirement that the defendant must solicit "with the intent that the minor will engage in sexual contact" that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur. TEX. PENAL CODE ANN. § 33.021(d). Thus, subsection (d) does not conflict with or negate the intent element of the solicitation-of-a-minor offense defined by (c).Id.; see also Ex Parte Fisher, No. 07-15-00098-CR, 2015 WL 8781336, at *5 (Tex. App.—Amarillo Dec. 10, 2015, pet. ref'd) (mem. op., not designated for publication). As we previously determined, the mens rea in subsection (c) is the solicitation of a minor, not the actual meeting of the minor. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015). Subsection (d), on the other hand, specifically provides for what is not a defense to prosecution. Id.
Because the requirements contained within sections 33.021(c) and (d) are separate and distinct for when each becomes applicable relative to the act of solicitation, we overrule Ingram's argument that the statute is unconstitutionally vague. See id.
4. Impermissible Burden on Interstate Commerce in Violation of Dormant Commerce Clause
In his final argument, Ingram contends section 33.021 is unconstitutional because it unduly and impermissibly burdens interstate commerce by attempting to place regulations on the entirety of the Internet in violation of the Dormant Commerce Clause of the U.S. Constitution. See U.S. CONST. art. I, § 8, cl. 3.
The State argues Ingram's argument is without merit because the statute (1) does not discriminate between intra and interstate commerce, and (2) serves the important governmental interest of protecting children from online sexual predators, while the burden it places on interstate commerce is, at most, incidental.
Arguing it is impossible to restrict the effects of section 33.021 to conduct occurring in Texas, Ingram relies on American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 163 (S.D.N.Y. 1997), for the proposition that the statute seeks to regulate communications potentially occurring wholly outside Texas. In Pataki, the court held that a law that made using a computer to communicate material sexually harmful to a minor illegal violated the Dormant Commerce Clause because it unduly burdened interstate commerce in the traffic of goods, services, and ideas. Id. at 184.
Unlike Pataki, where the law was aimed at limiting exposure of harmful content to minors, section 33.021(c) criminalizes online solicitation of minors with the intent to engage in sexual conduct. Cf. id. It does not punish communication of explicit materials to minors. See Ex parte Wheeler, 478 S.W.3d at 97; see also Ex Parte Fisher, 2015 WL 8781336, at *5-6. Additionally, section 33.021 does not differentiate between intrastate and interstate commerce. See Ex parte Wheeler, 478 S.W.3d at 97; Ex Parte Fisher, 2015 WL 8781336, at *6.
We therefore conclude that any effect of section 33.021(c) on interstate commerce is only incidental in relation to the local benefit. See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443 (1960) (holding that a statute evenhandedly regulating a legitimate local public interest, with only incidental effects on interstate commerce, will be upheld absent evidence of a clearly excessive burden on such commerce). Like the court held in Ex parte Wheeler, 478 S.W.3d at 97, "we also conclude that the effect of the statute on interstate commerce is only incidental in relation to the local benefit of the statute." Id. (citing Huron Portland Cement, 362 U.S. at 443). Accordingly, we overrule Ingram's argument that section 33.021(c) violates the Dormant Commerce Clause.
CONCLUSION
Having determined Ingram failed to prove Texas Penal Code sections 33.021(c) and (d) are facially unconstitutional, we affirm the trial court's order denying Ingram's Petition for Writ of Habeas Corpus. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015).
Patricia O. Alvarez, Justice DO NOT PUBLISH