Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 15-DCR-069800
consists of Justices Christopher, Jamison, and Donovan.
HILL JAMISON JUSTICE.
Dillon Travis Moy, who was indicted for the felony offense of
online solicitation of a minor under Texas Penal Code section
33.021(c), challenges in eight issues the constitutionality
of the statute. Appellant filed a pretrial application for
writ of habeas corpus in which he asserted that the online
solicitation statute is unconstitutional on its
face. In the writ application, appellant argued
that the statute (1) is unconstitutionally overbroad in
violation of the First Amendment; (2) is unconstitutionally
vague in violation of the Fifth and Fourteenth Amendments;
and (3) unconstitutionally burdens interstate commerce in
violation of the Dormant Commerce Clause by attempting to
regulate the internet. The trial court denied relief.
appeal, appellant brings the constitutional challenges that
he raised below and others. Concluding that appellant did not
preserve error as to the constitutional challenges brought
for the first time on appeal, the statute is not overbroad or
vague, and the statute does not unduly burden interstate
commerce, we affirm.
Under Texas Penal Code section 33.021(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. Penal Code § 33.021(c).
time of appellant's indictment on June 30, 2015,
"minor" was defined as "an individual who
represents himself or herself to be younger than 17 years of
age" or "an individual whom the actor believes to
be younger than 17 years of age." Act of June 18,
2005, 79th Leg., R.S. ch. 1273 § 1, 2005 Tex. Sess. Laws
1291 (amended 2015) (current version at Tex. Penal Code
§ 33.021(a)(1)). Also at the time of appellant's
indictment, it "was not a defense to prosecution under
Subsection (c) that . . . the actor did not intend for the
meeting to occur." Act of June 18, 2005, 79th Leg., R.S.
ch. 1273 § 1, 2005 Tex. Sess. Laws 1291 (amended 2015)
(current version at Tex. Penal Code §
33.021(d)). An offense under this section is a second
degree felony. Id. § 33.021(f).
Waiver of Issues Not Raised Below
first address whether appellant preserved all of his
appellate issues for our review. A defendant may not raise a
facial challenge to the constitutionality of a statute for
the first time on appeal.Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009). And a reviewing court should
not address the merits of an issue that has not been
preserved for appeal. Ford v. State, 305 S.W.3d 530,
532 (Tex. Crim. App. 2009).
pretrial application for writ of habeas corpus, appellant
challenged the constitutionality of section 33.021(c) under
the United States Constitution on the bases of (1)
overbreadth, as a content-based restriction of speech in
violation of the First Amendment; (2) vagueness, in violation
of the due process clauses in the Fifth and Fourteenth
Amendments; and (3) undue restriction of commerce, in
violation of the Dormant Commerce Clause. On appeal,
appellant brings several additional constitutional challenges
to the statute: (1) overbreadth, in violation of the due
process clauses in the Fifth and Fourteenth Amendments; (2)
overbreadth and vagueness under the Texas Constitution; and
(3) a strict liability offense, in violation of due process
under the United States and Texas Constitutions.
may not raise facial constitutional challenges to a statute
for the first time on appeal. See Karenev, 281
S.W.3d at 434; Ford, 305 S.W.3d at 532. Accordingly,
appellant has forfeited his constitutional challenges that
were not raised below. We address only appellant's
constitutional challenges that were raised
Constitutional Challenges Raised Below
address appellant's facial constitutional challenges to
the statute raised below on grounds of overbreadth,
vagueness, and undue restriction of commerce. Whether a
statute is unconstitutional on its face is a question of law
that we review de novo. Ex parte Lo, 424 S.W.3d 10,
14 (Tex. Crim. App. 2013). We begin with the presumption that
the statute is valid and that the legislature has not acted
unreasonably or arbitrarily. Id. at 14-15.
Ordinarily, the party challenging the statute carries the
burden to establish the statute's unconstitutionality.
Id. at 15.
Is section 33.021(c) a content-based regulation?
argues in his second issue that section 33.021(c) is a
content-based regulation that criminalizes a
"substantial amount of harmless speech." We address
that issue first ...