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Ex parte Ingram

Court of Criminal Appeals of Texas

June 28, 2017

Ex parte ADAM WAYNE INGRAM, Appellant

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

          Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Keel, and Walker, JJ., joined. Yeary, J., joined the opinion of the Court as to parts II.A. and II.B. and otherwise concurred. Alcala, J., filed a concurring opinion joined by Newell, J. Keasler, J., concurred.

          KELLER, P.J.

         This is an appeal from the denial of relief on a pretrial habeas application. In it, appellant raises various facial challenges to the constitutionality of the pre-2015 version of subsection (c) of the "Online Solicitation of a Minor" statute. Some of these challenges depend on the interaction between subsection (c), which proscribes the offense, and subsection (d), which provides that certain facts are "not a defense to prosecution." Appellant also contends that subsection (a)'s definition of "minor, " which includes "an individual who represents himself or herself to be younger than 17 years of age, " makes subsection (c) overbroad because the definition results in penalizing constitutionally protected roleplay between adults. Appellant also contends that subsection (c) places an undue and impermissible burden on interstate commerce in violation of the United States Supreme Court's Dormant Commerce Clause jurisprudence. We conclude that appellant's claims are without merit because (1) constitutional attacks on free-standing anti-defensive issues are not cognizable on pretrial habeas, (2) without the anti-defensive issues and under a narrowing construction of the word "represents, " subsection (c) is not unconstitutionally overbroad, and (3) subsection (c) does not violate the Supreme Court's Dormant Commerce Clause jurisprudence. Consequently, we affirm the judgments of the courts below.

         I. BACKGROUND

         Appellant was indicted for the offense of "Online Solicitation of a Minor" under the pre-2015 version of Penal Code § 33.021(c). The indictment provided that, on or about May 21, 2013, appellant, [1]

with the intent that [the complainant], a minor, would engage in sexual contact, sexual intercourse, and deviate sexual intercourse with [the complainant], did knowingly solicit over the internet by electronic mail or text message or other electronic message service or system, or through a commercial online service, [complainant] to meet [appellant].

         Appellant filed a pretrial habeas application, raising various facial constitutional challenges to the statute. The trial court denied the application, and appellant filed an interlocutory appeal. Addressing and rejecting all of appellant's constitutional complaints on the merits, the court of appeals affirmed the trial court's order denying habeas relief.[2]

         II. ANALYSIS

         A. The Statute

         Before September 1, 2015, § 33.021 provided in relevant part:

(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.
* * *
(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:
* * *
(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.[3]

         B. Cognizability

         Appellant contends that Subsections (d)(2) and (d)(3) render the online solicitation statute unconstitutional for a variety of reasons. He claims that the provisions impermissibly negate the mens rea requirement of the statute in violation of the right to due process, deny a defendant his Sixth Amendment right to present a defense, help render the online solicitation statute unconstitutionally overbroad in violation of the First Amendment, and render the statute unconstitutionally vague under the Fifth and Fourteenth Amendments.[4] We conclude that none of these complaints are cognizable in a pretrial habeas proceeding.

         Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.[5] This remedy is reserved "for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review."[6] Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant's favor, would not result in immediate release.[7] Moreover, pretrial habeas is generally unavailable "when the resolution of a claim may be aided by the development of a record at trial."[8] The only recognized exception to the general prohibition against record development on pretrial habeas is when the constitutional right at issue includes a right to avoid trial, such as the constitutional protection against double jeopardy.[9]

         Ordinarily, a facial challenge to the statute defining the offense can be brought on pretrial habeas, [10] and we have specifically recognized the ability to bring an overbreadth challenge.[11] But, as we shall see, anti-defensive issues pose complications that we have not before addressed, and we ultimately conclude that a challenge to a freestanding anti-defensive issue is not cognizable, even when it is a facial challenge.

         The "law applicable to the case" in a criminal prosecution always includes the elements of the charged offense, but there are other types of issues, such as a defense, that become law applicable to the case if raised by the evidence. On occasion, evidence may raise an issue that is anti-defensive-an issue that benefits the State's position in the case but is not something the indictment required the State to prove from the outset. Perhaps the most common anti-defensive issue is voluntary intoxication: "Voluntary intoxication does not constitute a defense to the commission of a crime."[12] An instruction on the non-defensive nature of voluntary intoxication is appropriate when "there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions."[13] We think this pronouncement of the standard for when to submit an anti-defensive issue is not unique to the issue of voluntary intoxication. Because an anti-defensive issue is not something that has to be alleged in the indictment, and is not part of the State's prima facie case, an instruction on such an issue is appropriate only when some evidence at trial raises it. Only at that time does an anti-defensive issue become law applicable to the case.

         It follows that an anti-defensive issue is not law applicable to the case at the pretrial habeas stage. That is a problem for appellant because, even in the First Amendment context, a defendant has standing to challenge a statute only if it is being invoked against him.[14] At this juncture, subsections (d)(2) and (d)(3) have not been invoked in appellant's case, and, therefore, he cannot meet the basic standing requirement necessary to obtain relief.

         Of course, it is also true that defensive issues (e.g., defenses and affirmative defenses) are not law of the case until raised by the evidence, [15] yet they may sometimes be taken into consideration when determining whether a statute is unconstitutionally vague or overbroad.[16] But that is because a defensive issue might narrow the scope of a statute that has been invoked against the defendant. That does not mean that a defendant can raise a pretrial habeas challenge to provisions that arguably broaden the scope of a statute when those provisions have not been shown to be applicable to his case. If an anti-defensive issue is merely a limitation on the scope of a defensive issue, [17] then it may be relevant to how much the defensive issue narrows the statutory provisions proscribing the offense with which the defendant was charged. But that is not the case here because the anti-defensive issues are freestanding-they are not attached to a defensive issue.

         Standing concerns aside, the fact that a freestanding anti-defensive issue does not become law applicable to the case until raised by the evidence means that a constitutional challenge involving such an issue is one that requires record development to substantiate. As we have explained above, unless the defendant relies upon a constitutional right that includes a right to avoid trial, [18] developing the record at a pretrial habeas proceeding is inappropriate, and so it follows that the proper remedy would be to litigate the constitutionality of a freestanding anti-defensive issue at trial if the issue is raised by the evidence at trial. Appellant's situation is similar in relevant respects to the in pari materia claim alleged on pretrial habeas by the defendant in Ex parte Smith.[19] In that case, the defendant claimed a due process right to be prosecuted under a special statute that he claimed was in pari materia with the statute under which he was charged.[20] We held that such a claim was "not yet ripe for review" because a "decision on the in pari materia claim would be premature before the State has had an opportunity to develop a complete factual record during a trial, " and we were not aware of any authority that would require the State to prove its case before that time."[21]

         Moreover, a determination that a freestanding anti-defensive issue is unconstitutional (in combination with the statute proscribing the offense)-even on its face-would not terminate a defendant's prosecution and, so, would not result in immediate release. If and when a freestanding anti-defensive issue were held to be facially unconstitutional, the remedy would be to sever the provision from the statute, [22] and applying that remedy at the pretrial habeas stage would not terminate the prosecution. In fact, unless the State were to actually allege the anti-defensive issue in the indictment, holding such an issue unconstitutional would not affect any of the State's indictment allegations.[23] And even if, in a given case, the State might need an anti-defensive issue to procure a conviction for the charged offense, that fact would not be known until the evidence in the defendant's case was presented at trial.

         We conclude that appellant's claims that revolve around the anti-defensive issues-the mens rea, right to present a defense, and vagueness claims-are not cognizable on pretrial habeas. We also conclude that appellant's overbreadth and dormant commerce claims, to the extent that they depend on the anti-defensive issues, are not cognizable.

         C. Overbreadth

         1. Standards

         But appellant's overbreadth claim does not rely solely upon the anti-defensive issues, and to the extent it does not, it is cognizable.[24] "Overbreadth" is a First Amendment doctrine that allows a facial challenge to a statute even though the statute might have some legitimate applications.[25]"The overbreadth of a statute must be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep."[26] To be overbroad, a statute must prohibit a substantial amount of protected expression, and the danger that the statute will be applied in an unconstitutional manner "must be realistic and not based on fanciful hypotheticals."[27] The person challenging the statute must demonstrate from its text and from actual fact that a substantial number of instances exist in which the statute cannot be applied constitutionally.[28]

         The first step in an overbreadth analysis is to construe the challenged statute.[29] We construe a statute in accordance with the plain meaning of its text unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.[30] In determining plain meaning, we can consult dictionary definitions, and we read words in context, applying rules of grammar and giving effect to every word in the text if reasonably possible.[31] Text in a statute is ambiguous if it "may be understood by reasonably well-informed persons in two or more different senses."[32] If the text is ambiguous or the plain meaning leads to absurd results, then we can consider extratextual factors including the object sought to be attained, the legislative history, and the consequences of a particular construction.[33] In addition, we have a duty to employ, if possible, a reasonable narrowing construction in order to avoid a constitutional violation.[34]

         2. Definition of "Minor"

         Appellant contends that the pre-2015 statute's definition of "minor" creates an overbreadth problem by allowing the criminal provisions of the online solicitation statute to apply to protected speech between adults. As we set out above, the pre-2015 statute 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 years of age.[35]

         The definition in (B) appears to be self-explanatory, but further discussion is needed for the definition in (A). What does it mean to say that someone "represents" himself or herself to be younger than 17 years of age?

         Without citing any definitions, appellant suggests that it means "one or both adults hold themselves out to be a minor." Our research has revealed several possibly applicable definitions of the word "represents." Ballentine's Law Dictionary defines "represent" to mean "[t]o state as a fact."[36] The Random House Dictionary sets forth many definitions, but there are two that might conform to appellant's claim or fit the statutory language: (1) "to set forth clearly or earnestly with a view to influencing opinion or action or making protest, "[37] and (2) "to set forth or describe as having a particular character." [38] The Oxford English Dictionary likewise sets forth many definitions but contains two that parallel the Random House definitions above: (1) "to place a fact clearly before another; to state or point out explicitly or seriously to one with a view to influencing action or conduct, "[39] and (2) "to describe as having a specified character or quality; to give out, assert, or declare to be of a certain kind."[40] The most recent edition of Black's Law Dictionary does not define "represent, " but it does define "representation" as: "a presentation of fact-either by words or by conduct-made to induce someone to act, especially to enter into a contract; especially, the manifestation to another that a fact, including a state of mind, exists."[41]

         These dictionary definitions reveal two competing interpretations of "represent." One interpretation of "represent" is to state something as a fact, to be accepted as true. If this meaning attaches to the word "represent, " then a person "represents" himself to be under age 17 if he is asserting his age as a matter of fact, to be accepted as true. The other interpretation of "represent" is to describe something as having a certain character or quality. One dictionary-cited example of this definition is when someone "represents himself as a friend."[42] If that meaning attaches, then it might be argued that a person "represents" himself to be under age 17 if he describes himself to be under age 17.

         We conclude that extratextual factors support the first interpretation-that a person "represents" his age when he states his age as a fact, to be accepted as true. The pre-2015 version of this statute arose from House Bill 2228, enacted in 2005. As originally filed, the bill defined "minor" in subsection (A) as a person "who is younger than 17 years of age."[43] The language was changed to "who represents himself or herself to be younger than 17 years of age."[44] Representative McCall explained that this change was made because the original bill language could result in punishing someone who honestly thought he was soliciting someone who was an adult but who was really a minor representing himself or herself to be an adult.[45] This legislative history indicates that the "represents" language was intended to prevent the statute from ensnaring individuals who, based on the child's own statements, reasonably thought the child was an adult. Such legislative history is consistent with giving the word "represents" a narrow construction, which would be consistent with the first interpretation. Moreover, the legal dictionaries cited support the first interpretation, and it seems likely that the legislators were thinking of how the word "represent" is generally used in the legal field when it comes to making statements. Finally, construing "represents" under the more narrow first interpretation is consistent with giving statutory language a reasonable narrowing construction to avoid a constitutional violation.

         Having decided that "represents" means to state as a fact, to be accepted as true, we must determine from whose perspective the character of the statement must be viewed. Is it enough, for example, that the speaker intends the statement to be one of fact even if the statement does not convey to a reasonable listener that it is one of fact? Consistent with construing the statute narrowly to avoid a constitutional violation but to effectuate the legislature's purpose, and keeping in mind the legal concept of representation, we conclude that the statement must also be one that a reasonable listener would view as an assertion of fact.[46] That is, a person represents himself or herself to be under the age 17 if, in view of the totality of the speaker's statements, (1) the speaker intended to state his or her age as a matter of fact, to be accepted as true and (2) a reasonable person in the listener's shoes would perceive the speaker to be stating his or her age as a fact, to be accepted as true. That does not mean that the representation is true. A police officer could be impersonating an individual under age 17 as part of a sting operation. But, in that example, it does mean that the officer is intending the assertion of underage status to be accepted as true, and that a reasonable person in the defendant's position would believe that underage status was being asserted as fact, to be accepted as true.

         3. Constitutionality

         One of the few recognized categories of speech that is "fully outside the protection of the First Amendment" is "'speech or writing used as an integral part of conduct in violation of a valid criminal statute.'"[47] This is true even if the "conduct in violation of a valid criminal statute" is never completed: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection, "[48] and "[m]any long established criminal proscriptions-such as laws against conspiracy, incitement, and solicitation-criminalize speech . . . that is intended to induce . . . illegal activities."[49] The Supreme Court has recognized speech as exempt from First Amendment protection when it was the commission of a "sort[] of inchoate crime[]-[an] act looking toward the commission of another crime" that the legislature can validly punish.[50]

         One offense that a legislature can validly punish is sexual assault of a child.[51] That offense occurs in Texas if a person causes a child under age 17 to engage in certain described sexual activities unless the person is not more than three years older than the child or is the spouse of the child.[52] Subsection (c) of the pre-2015 online solicitation statute made it an offense if a person "knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage" in these sorts of sexual activities with the actor or another person.[53] The pre-2015 online solicitation statute included defenses for when the actor is a spouse or not more than three years older than the minor.[54] By prohibiting the conduct of soliciting a minor to meet with the intent that the minor engage in illegal sexual activity, former subsection (c) created an inchoate offense for the object offense of sexual assault of a child.

         We recognized as much, albeit in dicta, in Ex parte Lo: "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."[55] As we suggested in Lo, other courts have held that the First Amendment does not apply to speech that attempts to induce a child to engage in illegal sexual activity: A person "simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts."[56]"The inducement of minors to engage in illegal sexual activity enjoys no First Amendment protection."[57] "[S]peech used to further the sexual exploitation of children does not enjoy constitutional protection."[58] "Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime."[59] "The common thread in cases involving First Amendment challenges to luring statutes is that freedom of speech does not extend to speech used as an integral part of conduct in violation of a valid criminal statute."[60]

         However, instead of defining a "minor" as someone under age 17, the legislature defined the term to mean either someone who represents himself or herself to be under age 17 or someone whom the actor believes to be under age 17. That means a person could commit a crime by soliciting someone who is actually an adult, as long as the person solicited had represented himself or herself to be under age 17 or the actor believed that the person being solicited was under age 17. We conclude, however, that solicitation still qualifies as an "integral part of conduct in violation of a valid criminal statute" if the actor is mentally culpable with respect to the solicited person's age, even if the solicited person turns out to be an adult.[61]

         The Supreme Court has made clear that "[o]ffers to . . . engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer."[62] One characteristic of inchoate crimes that carries over into First Amendment jurisprudence is that the "impossibility of completing the crime because the facts were not as the defendant believed is not a defense."[63] Other courts have specifically held that the First Amendment does not protect a defendant who solicits someone he believes is a child who turns out to be an adult.[64]Distinguishing between "the defendant who attempts to induce an individual who turns out to be a minor from the defendant who, through dumb luck, mistakes an adult for a minor" would "bestow a windfall to one defendant when both are equally culpable."[65]

         This discussion demonstrates the constitutionality of a provision that punishes the solicitation of a "minor" who meets part (B) of the statutory definition-an individual whom the actor believes to be younger than 17 years of age. The remaining question is whether this discussion demonstrates the facial constitutionality of punishing the solicitation of someone who meets part (A) of the statutory definition-an individual who represents himself or herself to be younger than 17 years of age. We believe that it does.

         As we have construed the word "represents, " a person who receives a representation that someone is under age 17, and does not otherwise know the representing individual's age, will be aware of a substantial risk that the individual is in fact under age 17, and a reasonable person would not disregard such a risk. Disregarding such a risk by soliciting the individual would satisfy the definition of recklessness as to the person's age.[66] The Supreme Court has indicated that recklessness can remove a statement from First Amendment protection: A reckless culpable mental state with respect to false statements about a public official removes First Amendment protection against libel litigation.[67]

         Turning specifically to appellant's complaint that the definition of "minor" allows the online solicitation statute to encompass roleplay about age between adults, we disagree. Such roleplay, as appellant has described it, involves two or more adults mutually pretending that one or more of them is a child. Obviously, a defendant who believes that the complainant is a child (under age 17) is not engaged in a mutual game of pretend. A mutual game of pretend also does not occur when the complainant represents himself or herself to be a child, because, under our construction of the statute, the complainant would be asserting age as a matter of fact, to be accepted as true. The following scenarios, for example, would not qualify as a representation that the complainant is under age 17 because the complainant would not be asserting underage status as a matter of fact:

(a) The defendant and complainant are both adults. They both know that the other is an adult and are aware of each other's knowledge in that regard. The complainant makes statements that she is under age 17.
(b) The complainant says that she is an adult but will pretend to be a child. The complainant makes further statements consistent with pretending to be a child that do not, from the perspective of a reasonable person in the ...

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