                                                                                                                              ACCEPTED
                                                                                                                          01-14-00868-CR
                                                                                                               FIRST COURT OF APPEALS
                                                                                                                       HOUSTON, TEXAS
                                  In the Court of Appeals for the                                                   5/14/2015 10:33:36 AM
                                                                                                                    CHRISTOPHER PRINE
                                  First District Court of Appeals                                                                  CLERK

                                         No. 01-14-868-CR

                                                             On Appeal from
                                                                                      FILED IN
Ex Parte                                                     The 155th District 1st
                                                                                Court
                                                                                    COURT OF APPEALS
                                                             Austin County, Texas HOUSTON, TEXAS
                                                                                         5/14/2015 10:33:36 AM
Stuart Oland Wheeler
                                                                                         CHRISTOPHER A. PRINE
                                                             Trial Court Cause           No. 2014V-0074
                                                                                                  Clerk
                                              Postsubmission Brief



       To Justices Jennings, Higley, and Huddle:

            Appellant Stuart Oland Wheeler files this Postsubmission Brief to aid

            the Court in its decision.

       Avoiding This Court’s Error in Lo

            In Ex Parte Lo, the Court of Criminal Appeals wrote:
                 Because the court of appeals used the wrong standard of review for addressing
                 constitutional challenges to a penal statute that restricts speech based on its content, it
                 reached the wrong conclusion.

            Ex Parte Lo, 434 S.W.2d 10, 14 (Tex. Crim. App. 2013).

                 The court went on to cite R.A.V. v. City of St. Paul for the

            proposition      that      “content-based           regulations        of     speech       are

            presumptively invalid.” Lo at 14 fn 6 (citing to R.A.V. v. City of St. Paul,

            505 U.S. 377, 382 (1992)). The paragraph in R.A.V. from which the

            court drew this proposition begins:
                 The First Amendment generally prevents government from proscribing speech, or
                 even expressive conduct, because of disapproval of the ideas expressed. Content-
                 based regulations are presumptively invalid.

            R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted).




                                                                                                          1
     Thus, according to the United States Supreme Court, content-

based regulations of expressive conduct are presumptively invalid.

There is no distinction between content-based restrictions on speech,

and content-based restrictions on expressive conduct.

     In the First Amendment context, in fact, “speech” includes

expressive conduct.

     The State’s contention is that the speech forbidden by Section

33.021(c) and (d) is conduct rather than speech. To the extent that this

distinction is meaningful, it is false.

     The distinction is not meaningful: “The free speech protections

of the First Amendment are implicated when the government seeks to

regulate protected speech or expressive conduct.” Ex parte Thompson,

414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), petition for

discretionary review granted (Nov. 27, 2013), aff'd, 442 S.W.3d 325 (Tex.

Crim. App. 2014).

     This court in Maloney cited Broadrick for the proposition that

“before a statute regulating conduct will be invalidated on its face, the

overbreadth must be substantial.” Maloney v. State, 294 S.W.3d 613,

627 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d.) (citing

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). But in New York v.




                                      2
Ferber the Supreme Court had applied this rule—that overbreadth

must be substantial to invalidate a statute on its face—to a statute

regulating speech (the distribution of books). New York v. Ferber, 458

U.S. 747 (1982). So the rule is the same for expressive conduct as for

speech. Whether Section 33.021 regulates “speech” or conduct,” it

regulates expression, and so it stands only if it is not substantially

overbroad.

      Even if the distinction between conduct and speech were

meaningful, though, it would be false in the case of Section 33.021.

The statute criminalizes communications that solicit. While wordless

conduct can become protected under the First Amendment because it

is expressive, words do not become unprotected—nor even less

protected—merely because we call them “conduct.”

      In Lo the Court of Criminal Appeals made an off-hand remark in

dicta about Section 33.021(c) forbidding conduct: “it is the conduct of

requesting a minor to engage in illegal sexual acts that is the gravamen

of the offense.” Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013),

reh’g denied (Mar. 19, 2014).1,2 But the court also wrote:


1
 This rationale does not apply to the fantasy speech expressly criminalized by Section
33.021(c) and (d).




                                          3
        According to the First Amendment overbreadth doctrine, a statute is facially invalid if
        it prohibits a “substantial” amount of protected speech “judged in relation to the
        statute’s plainly legitimate sweep.” The State may not justify restrictions on
        constitutionally protected speech on the basis that such restrictions are necessary to
        effectively suppress constitutionally unprotected speech, such as obscenity, child
        pornography, or the solicitation of minors.

Ex parte Lo, 424 S.W.3d 10, 18 (Tex. Crim. App. 2013), reh’g denied

(Mar. 19, 2014). So the Court of Criminal Appeals gives “the

solicitation of minors” as an example of unprotected “speech.”3

         Even aside from Lo, there are many cases describing solicitation

as speech. See, e.g., United States v. Hornaday, 392 F.3d 1306, 1311

(11th Cir. 2004) (“Speech attempting to arrange the sexual abuse of

children is no more constitutionally protected than speech attempting

to arrange any other type of crime”) (emphasis added); Karwoski v.

State, 867 So. 2d 486, 488 (Fla. Dist. Ct. App. 2004) (“In this case, it

is … speech that amounts to seduction, solicitation and enticement of

a child to commit a crime that is prohibited) (emphasis added); LaRose

v. State, 820 N.E.2d 727, 730 (Ind. Ct. App. 2005) (“Indiana Code

section 35–42–4–6 criminalizes speech sexually soliciting an individual

under the belief that the individual solicited is a minor, which is a


2
 The Lo court did not cite Maloney for this proposition, and Maloney itself did not
hold that Section 33.021(c) prohibits conduct rather than speech.
3
    This is why dicta are not binding.




                                               4
content-based regulation subject to strict scrutiny”) (emphasis

added); Arganbright v. State, 328 P.3d 1212, 1217 (Okla. Crim. App.

2014) (“This statutory provision causes it to be unlawful for any

person to communicate with a minor through the use of electronic

technology for the purposes of facilitating, encouraging, offering, or

soliciting sexual conduct or communicating sexual or prurient interest

with any minor, or other individual the person believes to be a minor.

Therefore, we find that the statute regulates speech based upon its

content or subject matter”) (emphasis added); State v. Rung, 774

N.W.2d 621, 630 (Neb. 2009) (“Various state courts considering

statutes similar to § 28–320.02 have also rejected First Amendment

challenges on the basis that speech to entice a minor to engage in

illegal sexual activity is not speech protected by the First

Amendment”) (emphasis added). There are certainly many more such

cases.

     So this court’s error in Lo (and in Maloney) was not in treating

“speech” as “conduct,” but in treating a content-based restriction on

expressive conduct (“speech” in the First Amendment context) as

something else.




                                  5
Sequelae

     The presumption of invalidity, which follows from the recognition that

     the statute is a content-based restriction on speech, has some

     interesting consequences.

             • It reverses the presumption that the legislature has not

                acted unreasonably or arbitrarily (because we cannot

                presume both that the statute is invalid and that the

                legislature acted reasonably);

             • If a statute can be construed in two different ways, one of

                which renders it invalid, the court must apply the

                interpretation that renders it invalid (because it is

                presumed to be invalid);

             • The     State     carries   the   burden   to     establish   its

                constitutionality; and

             • The court must reject the statute if it can determine a

                reasonable construction that will render it unconstitutional

                (again, because it is presumed to be invalid).

     Each of these principles is the converse of the principles listed in the

     “Principles Governing Constitutionality Review” section of this

     Court’s opinion in Maloney v. State, 294 S.W.3d 613, 626 (Tex. App—




                                           6
     Houston [1st. Dist.] 2009, pet. ref’d). Because the principles listed in

     Maloney follow from the presumption of validity, 4 the inverse

     principles must follow from the presumption of invalidity.

           This makes sense: we do not trust the State to constitutionally

     apply a statute that might be unconstitutionally applied. To trust

     criminal prosecutors to resist applying a statute unconstitutionally

     would be to abdicate the court’s responsibility to defend the First

     Amendment. See U.S. v. Stevens, 559 U.S. 460, 480 (2010) (“[T]he

     First Amendment protects against the Government; it does not leave

     us at the mercy of noblesse oblige. We would not uphold an

     unconstitutional statute merely because the Government promised to

     use it responsibly.”).

Application

     Section 33.021(c) is presumptively invalid, so this court must presume

     that the legislature acted unreasonably, apply the interpretation that

     renders it invalid, and find it unconstitutional if there is a reasonable

     4
       See, for example, Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston
     [14th Dist.] 2009, pet. ref’d) (“We begin our review of the constitutionality of a
     statute with the presumption that the statute is valid and assume the legislature did
     not act arbitrarily and unreasonably in enacting the statute. Therefore, if a statute can
     be construed in two different ways, one of which sustains its validity, we apply the
     interpretation that sustains its validity.”) (emphasis added, cites omitted).




                                                7
construction that renders it invalid. The State bears the burden of

overcoming this presumption.

      For the State to overcome the presumption that the statute is

unconstitutional it would have to demonstrate that the overbreadth of

the statute was not real and substantial. The State has not tried to do

so, much less succeeded.

      The unpublished case of Ex Parte Jennings, No. 14-09-00817-CR

(Tex. App.—Houston [14th Dist] 2010, pet. ref’d) is an example of a

case in which the adult complainant represented herself to be a child,

and the defendant’s knowledge that the complainant was an adult was

not permitted as a defense.5 The crux of Mr. Jennings’s case at trial

was that he was actually engaging in “role play” and that he knew that

the woman with whom he chatted was an adult because she had told

him so during previous unrecorded internet conversations. (Jennings

RR IV at 106.)

      During voir dire in Jennings, members of the jury panel

repeatedly questioned the wording of the charge, and significant


5
 Mr. Wheeler doubts that this Court can take judicial notice of the record in an
appeal from another court, Jennings, but it’s hard to imagine how else Mr. Wheeler
might show that Section 33.021 is actually applied to cases of fantasy, were that his
burden (it is not).




                                         8
confusion transpired about whether the prosecutor had to prove the

defendant actually believed he was communicating to someone under

seventeen. When the prosecutor first read the elements of the offense,

a member of the venire quickly spoke up, saying, “So the law says that

this behavior is unlawful?” (RR II at 79.) The court attempted to

clarify and the following exchange occurred:
     The Court: Hang on, sir, please. Hypothetically if the State proves up that the
     individual who represented herself to be younger than 17 years of age over the
     internet, if they proved that up, they’ve proved the elements of their case. So, that
     very well may mean that the person is older than 17. But the fact is if they proved that
     up that they represented themselves to be under 17, a minor, they’ve proved up that
     element of the case. They have proved up that violation—that particular part of it. Do
     you see what I’m saying?
     Venire Person: I understand.
     The Court: Is there an objection?
     Mr. Becker: Yeah. But basically he has to reasonably believe the person is under the
     age of 17.
     The Court: Right.
     Mr. Becker: Okay. Not just that the person is over the age of 17, that the person—he
     reasonably believes the person he’s talking with at the time of the conversation was
     under the age of 17.
     Mr. Davis: That’s—that’s not an element.
     The Court: Well, no. Well, the element is this: That the person represented herself to
     be 17 years of age. All right. And that the communication was sexually explicit in a
     manner—in the manner. Okay. And that it was for the intent to arouse and gratify the
     sexual desire of the accused. That’s what’s alleged in the indictment. Okay. So there
     you go. If they prove that up, they’ve proved their case. It may be that the individual
     was not, in fact, under the age off 17. It may be that the individual—but, you know,
     represented themselves to be under the age of 17. Now, the question is if they proved
     that up, the elements, can you follow the law, sir?




                                            9
     Venire Person: I already gave my answer, Your Honor. I was just trying to clarify, you
     know, that I wouldn’t be able to do that.

(Jennings RR II at 80-81.)

     Members of the jury panel, perhaps not comfortable with the

court’s explanation, again requested clarification of the issue:
     Venire Person: No. 52. You seem to express in this—a disagreement with the judge
     over something that I thought I heard, having to do witth the age of 17 or if he knew it
     was the age of 17. Did I hear—
     Venire Person: That was one element.
     Mr. Davis: Yes. You did hear disagreement there. That is correct. There is no element
     that I have to prove that he reasonably believed that she was 17. That’s something
     that the defense tried to say. I said no, that is not an element.
     Venire Person: In other words, he could—if it was—
     The Court: Okay. Let me explain.
     Venire Person: Wait a minute. If he thought this person was over 17 and they could
     somehow show—
     Mr. Davis: How about I get elsewhere on this and maybe we’ll see?
     The Court: Well, let me—let me stop you right there. Because the requisite mental
     state for the defendant—the accused’s—all right—mental state, what he was thinking
     is that he did so unlawfully with the intent to arouse and gratify the sexual desire of
     Thomas Jennings. Okay. And that he intentionally communicated in a sexually explicit
     manner. That is the—the mental state that they have to prove, that he did so with the
     intent to gratify his sexual desire. All right. If they don’t prove that, then they haven’t
     proved an element. Yes sir?
     Venire Person: But for 17—but this person has to be 17 or under?
     The Court: No sir. Let’s move along.
     Venire Person: Okay.
     Mr. Davis: Okay. One last thing—yes, sir, No. 45?
     Venire Person: Can we have the reading out of the Penal Code?
     The Court: No. Let’s move along.

(Jennings RR II at 82-83.)




                                             10
     Shortly thereafter, another venire person again ventured for an

explanation regarding the actual behavior that is criminalized by

33.021:
     Venire Person: Is it entrapment if the john know—the john does not believe that is the
     activity he’s been engaging in is—is it entrapment if the person does not believe that
     the activity he’s engaging in is illegal? In other words, that he believes that the person
     was of legal age.
     Mr. Davis: The question is what your intent is.
     Venire Person: Okay.
     Mr. Davis: Did you—in the prostitution example: did you intend to exchange money
     for sex?
     Venire Person: Okay.
     Mr. Davis: That’s the question. In this case it doesn’t matter how old the person really
     was. What matters is did he communicate over the internet in a sexually explicit
     manner with the intent to arouse and gratify his sexual desire, and did she—and did
     she tell or give him some awareness or was she purporting to be under the age of 17?
     That’s all that matters.

(Jennings RR II at 89-90.)

     Some of the venire remained uneasy about the elements of the

offense and one member expressed his concern:
     Venire Person: Your Honor, I just want to say I kind of feel the same way. I mean, in
     some sense, yeah, the law may be what it is. But it seems to be punishing people for, in
     some sense, their sexual fantasies and not for any real harm that they’ve done. That’s
     why I’m kind of uneasy about this law.
     Mr. Davis: Let me ask you this then, sir—
     The Court: Let’s move along…

(Jennings RR II at 99-100.)




                                            11
     At trial the complainant, Lisa Poehl, testified that she worked as a

volunteer for PervertedJustice.com, a voluntary “citizen watchdog”

type organization, by pretending to be a child in internet chat rooms in

order to “catch Internet predators.” (Jennings RR III at 11, 17.) Mr.

Jennings, however, testified that he and Ms. Poehl had several

conversations before July 25, 2005. (Jennings RR IV at 108.) During

these conversations, Ms. Poehl represented herself as being 23 years

old and sent him non-pornographic pictures depicting herself as an

adult. (Jennings RR IV at 107-108.) Appellant testified:
     Q. What were y’all talking about when you had these conversations?
     A. Role playing.
     Q. What do you mean by role playing?
     A. Well, she stated she liked to role play as a 12-year-old or as a young girl.
     Q. Okay. And what did you say to that?
     A. Well, I’ve never done it, but, you know, I’ll give it a try.
     Q. Did you know that the person you were talking to was, in fact, a woman?
     A. Well, according to the pictures and what she said, she was a woman.

(Jennings RR IV at 108-109.)

     During closing argument in Jennings, counsel for the defense

argued that Appellant was not guilty because he believed that he was

talking with a 23 year old woman and the prosecutor argued that it did

not matter what Appellant believed. (RR IV at 164, 165, 167.):




                                              12
          And for the defense to tell you that, oh, well, he didn’t think that it was a kid, that
          would gut the entire purpose of the law. And folks, that why that’s not the law no
          matter how bad he wants to sell it to you that it is. The fact of the matter is I have to
          prove that she represented herself to be under 17. Duh, that is replete in this.

     (Jennings RR IV at 167.)

          “Duh,” indeed: Section 33.021(a)(1) is written to capture people

     who don’t believe they are talking to children. The jury instruction

     supported the State’s argument in Jennings, and Mr. Jennings was

     convicted.

Substantial Overbreadth

     The State has the burden of showing that the statute is not

     substantially overbroad, but what does that mean? In Maloney this

     Court wrote:
          Considering the overly broad scope and purpose of section 33.021, we have been
          given no basis to believe that prosecutions of consenting adults engaging in role-
          playing would amount to any more than a “tiny fraction” of all prosecutions under the
          statute.

     State v. Maloney, 294 S.W.3d 613, 628 (Tex. App.—Houston [1st Dist]

     2009, pet. ref’d).

          The question cannot be whether the State would prosecute

     consenting adults engaging in role play, but whether the State could

     prosecute such adults. The problem with a statute that is overbroad

     under the First Amendment is that it has a chilling effect on protected




                                                 13
      speech, and that chilling effect is not mitigated by the State’s good

      intentions.

Conclusion

      Whether we call it “speech” or “expressive conduct,” expression

      becomes unprotected only when it falls into an unprotected category.

      And while the solicitation of a child to have sex is unprotected, Section

      33.021(c), in conjunction with Section 33.021(d), forbids much more

      than the solicitation of a child to have sex, and goes much further than

      is necessary to protect children: it criminalizes fantasy.

           And if fantasy may be criminalized, then nothing is safe.

Certificate of Service

      A copy of this brief will be delivered to the attorney for the State by

      electronic filing.

Certificate of Compliance

      This brief contains 3,164 words, by Microsoft Word’s count.




                                          14
 Thank you,



 ________________________
 Mark Bennett
 SBN 00792970
 Bennett & Bennett
 917 Franklin Street, Fourth Floor
 Houston, Texas 77002
 713.224.1747
 mb@ivi3.com




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