Affirmed and Opinion filed August 20, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00401-CR

                    RODNEY JAMES ROBLES, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 8
                            Harris County, Texas
                        Trial Court Cause No. 2072804

                                    OPINION

      In this appeal from a conviction for prostitution, we consider several
challenges to the constitutionality of a statute, as well as a challenge to the trial
court’s exclusion of evidence and its denial of two requested charge instructions.
Finding no merit to any of the challenges presented, we affirm the trial court’s
judgment.
                                 BACKGROUND

       Appellant was driving at night through a neighborhood known for prostitution
when he noticed a woman on the sidewalk who was dressed provocatively in black
and pink striped leggings. Appellant pulled into a parking lot and gestured at the
woman, inviting her to come closer. When the woman approached and said that she
was “working” (a slang term for prostituting), appellant responded that he desired to
have sex with her in exchange for a fee. The woman told appellant to meet her at a
park, and appellant drove away as instructed. The woman, who was actually an
undercover officer, then gave a signal to a standby unit, which swooped in and made
an arrest.

                            DUE PROCESS CLAUSE

       In a pretrial motion to quash the charging instrument, appellant challenged the
constitutionality of the prostitution statute, which, at the time of the offense,
provided in material part as follows: “A person commits an offense if, based on the
payment of a fee by the actor or another person on behalf of the actor, the person
knowingly (1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for
hire.” Act effective Sept. 1, 2015, 84th Leg., R.S., ch. 1273, § 1, 2015 Tex. Gen.
Laws 4311, 4311 (amended 2017) (current version at Tex. Penal Code § 43.02).

       Appellant argued that this statute ran afoul of multiple constitutional
provisions, but the trial court overruled his motion in its entirety. Appellant now
complains of that ruling in separate issues on appeal, and he begins by arguing that
the statute violates his liberty interest under the Due Process Clause of the
Fourteenth Amendment.




                                          2
       The Due Process Clause encompasses both substantive and procedural
components. See Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016).
When, as in this case, a party claims that a statute has deprived him of a right
protected by substantive due process, our level of review depends on whether the
right involved is fundamental or non-fundamental. Id. A right is fundamental if it is
“deeply rooted in this Nation’s history and tradition” and “implicit in the concept of
ordered liberty.” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21
(1997)). If the right involved is fundamental under this standard, then we review the
challenged statute with strict scrutiny, which requires the government to show that
the statute is narrowly tailored to serve a compelling state interest. Id. If, on the other
hand, the right involved is non-fundamental, then our review of the statute is more
deferential. Id.

       The party claiming the deprivation of substantive due process has the initial
burden of demonstrating that he has a constitutionally protected liberty interest at
stake. Id. at 313–14. As the challenger here, appellant claims that he has a
fundamental liberty interest to engage another adult in consensual sexual conduct.
This characterization oversimplifies the right at issue.

       “In a substantive-due-process inquiry, the framing of the right at issue is key
to determining whether that right is so rooted in this nation’s history as to be afforded
the same heightened protections as other fundamental rights.” Id. at 315. Here, the
right at issue is more properly characterized as the right to engage another adult in
consensual sexual conduct for a fee.

       Appellant cites to several cases involving certain rights of sexual intimacy,
beginning with Lawrence v. Texas, 539 U.S. 558 (2003), which invalidated the
Texas statute against homosexual sodomy. That case has no bearing on our analysis
here because the Supreme Court specifically noted that that case “does not

                                            3
involve . . . prostitution.” Id. at 578. Appellant also refers to Obergefell v. Hodges,
135 S. Ct. 2584 (2015), which involved restrictions on the right to marry, and
Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008), which involved
restrictions on the sale of sexual devices. None of these cases establishes that there
is a deeply rooted right to engage another adult in consensual sexual conduct for a
fee. Because appellant has not shown that this right is fundamental, we do not apply
strict scrutiny.

       Normally, if a statute is not subject to strict scrutiny, then a court may only
perform a deferential form of review that considers whether the statute is rationally
related to a legitimate governmental purpose. See Schlittler, 488 S.W.3d at 313.
Appellant suggests that we should apply an intermediate level of scrutiny instead,
relying on the Ninth Circuit’s decision in Witt v. Department of Air Force, 527 F.3d
806 (9th Cir. 2008), which involved a challenge to the since-repealed policy known
as “Don’t Ask, Don’t Tell.” But Witt is not binding on us, and it is inapposite in any
event because the Ninth Circuit restricted its intermediate level of scrutiny to as-
applied challenges. Id. at 819. Appellant has framed his complaint here as a facial
challenge to the prostitution statute, not as an as-applied challenge.

       Even if appellant’s complaint could be construed as an as-applied challenge,
the Ninth Circuit has a more recent decision applying rational-basis review to a
California statute that criminalizes prostitution. See Erotic Serv. Provider Legal
Educ. & Research Project v. Gascon, 880 F.3d 450, 457 (9th Cir. 2018). That case
is more directly on point than Witt, and it aligns with precedent from the Texas Court
of Criminal Appeals, which we are bound to follow. See Schlittler, 488 S.W.3d at
313. We therefore apply rational-basis review.

       In a rational-basis review, we presume that the statute is constitutional. See
Estes v. State, 546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018). Appellant, as the

                                           4
challenger of the statute, has the burden of overcoming this presumption, and
because his challenge is against the statute as written, he must show that the statute
operates unconstitutionally in all of its potential applications. Id. If we can determine
that the statute is rationally related to even a single legitimate purpose, then our
inquiry is at an end and the statute must be upheld. Id. at 698.

      Appellant recognizes that three interests have historically been cited in
defense of a statute against prostitution: (1) the statute acts as a deterrent to other
crimes, like human trafficking and violence against women; (2) the statute acts as a
deterrent to the spread of infectious diseases; and (3) the statute acts a deterrent to
the commodification of sex.

      Appellant admits that the State may validly assert the first of these interests,
but he argues that the prostitution statute is unnecessary to achieve that interest
because the State has already criminalized other offenses associated with
prostitution. Appellant also admits that the second interest is valid, but he contends
that the prostitution statute is unnecessary to achieve that interest because some
studies have indicated that the decriminalization of prostitution may actually be safer
and healthier for those who do prostitute. These are essentially policy judgments,
which are insufficient to show that the statute is unconstitutional under the rational-
basis standard. Id. (“Above all, a court should spurn any attempt to turn rational-
basis review into a debate over the wisdom, eloquence, or efficacy of the law in
question.”).

      As for the commodification of sex, appellant argues that this interest is
illegitimate because it represents nothing more than the legislation of morality. We
need not consider this argument because the other two interests are legitimate (as
appellant himself admits), and the statute is rationally related to those interests. See
Erotic Serv. Provider, 880 F.3d at 458 (holding that California’s prostitution statute

                                           5
“is rationally related to several important governmental interests, any of which
support a finding of no constitutional violation under the Due Process Clause of the
Fourteenth Amendment”).

      Appellant’s due-process challenge is accordingly without merit.

                             FREEDOM OF SPEECH

      Appellant argues next that the prostitution statute is unconstitutional because
it criminalizes mere solicitation, in violation of the First Amendment’s guarantee of
freedom of speech. We need not belabor our discussion of this point because this
court, in an earlier decision, has already rejected appellant’s exact argument. See
Young Sun Lee v. State, 681 S.W.2d 656, 661 (Tex. App.—Houston [14th Dist.]
1984, pet. ref’d) (overruling a complaint that the prostitution statute “violates the
First Amendment because it permits prosecution for a mere verbal statement”); see
also Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376,
388 (1973) (“We have no doubt that a newspaper constitutionally could be forbidden
to publish a want ad proposing a sale of narcotics or soliciting prostitutes.”).

                         FREEDOM OF ASSOCIATION

      Appellant’s next challenge invokes the freedom of association, which the
Supreme Court has described as encompassing “certain intimate human
relationships.” See Roberts v. U.S. Jaycees, 468 U.S. 609, 617 (1984). Appellant
argues that the prostitution statute infringes on this freedom because the statute
precludes prostitutes and their clients from enjoying their own intimate relationships.

      Appellant misunderstands the meaning of “intimacy” that is contemplated by
this constitutional protection. Appellant construes the word in a strictly sexual sense,
but the Supreme Court was referring to those associations that “involve deep
attachments and commitments,” like the creation and sustenance of a family, the

                                           6
raising and education of children, and the cohabitation with relatives. Id. at 619–20.
These associations “are distinguished by such attributes as relative smallness, a high
degree of selectivity in decisions to begin and maintain the affiliation, and seclusion
from others in critical aspects of the relationship.” Id. at 620. Prostitution does not
bear these hallmarks because, by their very nature, encounters between prostitutes
and their clients are transactional and temporary. Cf. Bd. of Dirs. of Rotary Int’l v.
Rotary Club of Duarte, 481 U.S. 537, 546 (1987) (declining to recognize an intimate
association in a business club where ten percent of members move away or drop out
during a typical year).

       We reject appellant’s complaint that the prostitution statute runs afoul of the
constitutional guarantee of freedom of association. See Erotic Serv. Provider, 880
F.3d at 458–59 (reaching the same conclusion with regards to California’s
prostitution statute).

                          EQUAL PROTECTION CLAUSE

       Following his conviction, appellant filed a motion for new trial, complaining
that the prostitution statute was unconstitutional both on its face and as applied
because it discriminated on the basis of sex, in violation of the Equal Protection
Clause. The as-applied challenge presented a claim of selective prosecution, and in
support of that claim, appellant attached to his motion a voluminous record showing
that reverse-sting operations almost exclusively target men as the clients of
prostitutes.

       At the hearing on the motion for new trial, appellant abandoned his facial
challenge to the statute, but he continued to argue that the statute was being applied
selectively against men. The trial court denied the motion.




                                          7
      Now on appeal, appellant reasserts his facial challenge to the statute. We can
dispose of this challenge on at least two procedural grounds. First, the facial
challenge is not preserved because appellant abandoned it in the trial court and did
not obtain an adverse ruling. See Tex. R. App. P. 33.1. Second, the facial challenge
is inadequately briefed because appellant only mentions the facial challenge in a
single sentence in a heading, completely unsupported by argument. See Tex. R. App.
P. 38.1(i). Therefore, we need not perform any sort of merits analysis.

      Appellant also reasserts his as-applied challenge, which has been preserved
for appellate review.

      Because we presume that a prosecution for the violation of a criminal law is
undertaken in good faith and in a nondiscriminatory fashion, the burden falls on the
defendant to establish a prima facie case of selective prosecution. See Carreras v.
State, 936 S.W.2d 727, 730 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).
When the claim of selective prosecution is asserted on the basis of sex, the defendant
must make a threshold showing that the government declined to prosecute similarly
situated suspects of the opposite sex. Id. at 729. The defendant must also demonstrate
that the government’s prosecutorial policy had a discriminatory effect and that it was
motivated by a discriminatory purpose. Id. at 730.

      Appellant asserts in his brief that “similarly situated women have engaged in
criminal acts of prostitution . . . but these women have not been targeted by law
enforcement or prosecuted for, much less accused, of their criminal conduct.”
Appellant has not directed our attention to any place in the record where this
assertion is supported by the evidence. In fact, the argument section for this issue in
appellant’s brief contains no record citations whatsoever. Because appellant has not
shown that he satisfied his burden of proof, we cannot say that the trial court abused
its discretion by denying his claim of selective prosecution.

                                          8
                             VOID FOR VAGUENESS

        Appellant argues next that the prostitution statute is unconstitutionally vague,
but he does not challenge any particular words or phrases from the definition of the
offense—perhaps because the Court of Criminal Appeals has already rejected that
complaint. See McCarty v. State, 616 S.W.2d 194, 196 (Tex. Crim. App. 1981) (“The
definition of prostitution as being a person who engages or agrees or offers to engage
in sexual conduct with another person in return for a fee is not so vague as to make
persons of common intelligence guess at its meaning.”). Instead, appellant
complains that the statute lacks “minimal guidelines to govern law enforcement” and
that it enables law enforcement to “disproportionately and overwhelmingly target
men over women in prostitution-related reverse-sting operations.” These points
essentially restate appellant’s complaint of selective prosecution, which fail for the
reasons explained above.

                           EXCLUSION OF EVIDENCE

        After the State rested its case in chief, the trial court conducted a hearing
outside the presence of the jury to determine the admissibility of the defense’s expert
testimony. The expert was a clinical psychologist who had met with appellant on a
single occasion to evaluate him for neurodevelopmental issues. After performing
several tests, the psychologist determined that appellant fell on the autism spectrum
and that he exhibited executive dysfunction, which is a type of impairment with
impulse control and inhibition. The psychologist also determined that although
appellant was twenty years old at the time of his arrest, his developmental age was
only between the ages of fourteen and sixteen, and that he could be easily influenced
by someone who is more intellectually sophisticated. The psychologist further
opined that appellant had probably been influenced by the undercover officer in this
case.

                                            9
      The State argued that the psychologist’s testimony should be excluded on
relevance grounds because there was no evidence that the undercover officer had
entrapped appellant into committing an offense. Appellant countered that the
psychologist’s testimony was relevant because “the criminal intent began with law
enforcement.” The trial court agreed with the State and excluded the psychologist’s
testimony. Appellant now complains of that ruling, which we review for an abuse of
discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

      Conduct that merely affords a person with an opportunity to commit an
offense is insufficient to raise the defense of entrapment. See Tex. Penal Code § 8.06.
And here, no evidence was ever presented that the undercover officer did anything
other than afford an opportunity for an offense to be committed. As the trial court
explained at the end of the hearing, the undercover officer did not pull appellant
over, she did not expose herself, and she did not “danc[e] like the hoochy-koochy.”
Based on this record, which showed that appellant initiated the encounter, we cannot
say that the trial court abused its discretion by excluding the psychologist’s
testimony.

      Appellant responds that the psychologist’s testimony should have been
admitted under Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005) and Ruffin
v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008), both of which recognized that
evidence of mental illness may be introduced to negate the element of mens rea. But
appellant never mentioned to the trial court that he was offering the psychologist’s
testimony for that purpose. His argument was that he was vulnerable to inducement,
not that he lacked knowledge of his actions because of his mental illness.
Accordingly, this complaint was not preserved. See Tex. R. App. P. 33.1.

      And even if appellant had pressed an argument under Jackson and Ruffin, the
psychologist did not testify that appellant lacked knowledge that he had solicited

                                          10
sexual conduct in exchange for a fee. To the contrary, the psychologist conceded
that a person with appellant’s level of executive dysfunction would still be capable
of having knowledge of his actions. Based on that concession, any error in the
exclusion of the psychologist’s testimony would have been harmless.

                                CHARGE ERROR

      Even though appellant did not advise the trial court that he was offering the
psychologist’s testimony under Jackson or Ruffin, he still requested a charge
instruction based on those cases. The requested instruction invited the jury to
consider the evidence of appellant’s mental illness when deciding whether the State
had proved that appellant had committed the offense with the requisite mental state.

      In a second requested instruction, appellant invited the jury to consider
whether he had been entrapped by the undercover officer.

      The trial court denied both requested instructions. Now appellant argues that
these rulings, when combined with the evidentiary ruling discussed above, amount
to cumulative error.

      We overrule all of these complaints because the jury was never presented with
any evidence of mental illness or entrapment. Therefore, those issues never became
law applicable to the case, and the trial court was not required to submit appellant’s
requested instructions. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim.
App. 2013) (explaining that the evidence must raise the issue before the instruction
is required).




                                         11
                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice


Panel consists of Justices Christopher, Bourliot, and Zimmerer.
Publish — Tex. R. App. P. 47.2(b).




                                        12
