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Ex parte Moy

Court of Appeals of Texas, Fourteenth District

May 9, 2017

EX PARTE DILLON TRAVIS MOY

         On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 15-DCR-069800

          Panel consists of Justices Christopher, Jamison, and Donovan.

          OPINION

          MARTHA HILL JAMISON JUSTICE.

         Appellant 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.[1] 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.

         On 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.

         Discussion

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).

         At the 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."[2] 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)).[3] An offense under this section is a second degree felony. Id. § 33.021(f).

         I. Waiver of Issues Not Raised Below

         We 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.[4]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).

         In his 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.

         Appellant 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 below.[5]

         II. Constitutional Challenges Raised Below

         We now 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.

         A. Is section 33.021(c) a content-based regulation?

         Appellant 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 ...


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