Opinion issued September 29, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00868-CR
                           ———————————
                  EX PARTE STUART OLAND WHEELER



                   On Appeal from the 155th District Court
                            Austin County, Texas
                     Trial Court Cause No. 2014V-0074


                                 O P I N I O N

      Stuart Oland Wheeler was indicted on the felony charge of online

solicitation of a minor under Texas Penal Code section 33.021(c). See Tex. Pen.

Code Ann. § 33.021(c) (West 2014). Wheeler filed a pretrial application for a writ

of habeas corpus in which he asserted that subsections 33.021(c) and (d) are

facially unconstitutional. Noting that the Court of Criminal Appeals invalidated
subsection (b) of the same statute as an overbroad content-based restriction on

protected speech, see Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013),

Wheeler argued that the surviving subsections (c) and (d) are likewise

unconstitutional. In particular, Wheeler contends that subsections (c) and (d), in

combination, (1) violate the First Amendment of the United States Constitution

because they are overbroad content-based restrictions that criminalize protected

speech between consenting adults, (2) are contradictory and unconstitutionally

vague, and (3) violate the Dormant Commerce Clause because they unduly restrict

interstate internet communication. Wheeler appeals the trial court’s denial of the

application. We affirm.

                            Penal Code Section 33.021

      Wheeler was indicted under Penal Code section 33.021(c), which states:

    (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. PEN. CODE ANN. § 33.021(c) (West 2014).           Section 33.02(a)(1) 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

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             years of age.

Id. § 33.021(a)(1).    And subsection (d) provides that it is not a defense to

prosecution under subsection (c) that:

      (1)    the meeting did not occur;

      (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.

Id. § 33.021(d).

                              The Parties’ Arguments

      Wheeler contends that these provisions are facially unconstitutional in three

respects. First, he asserts that they are overbroad because they impermissibly

restrict protected speech between persons engaged in “ageplay,” which Wheeler

asserts is a prevalent practice in which consenting adults roleplay as children for

their sexual gratification. According to Wheeler, the statute is overbroad because

it permits the conviction of an ageplayer who speaks solicitant words to “the object

of his sexual attention, who ‘represents himself’ to be a child”—and thus meets the

statute’s definition of “minor”—but is not in fact a child. Wheeler also contends

that the statute is overbroad because subsection (d) both (1) eliminates the specific

intent requirement of (c) and (2) precludes an ageplayer from defending himself on

the basis that the solicitation was a mere fantasy.



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       Second, Wheeler argues that the statute is unconstitutionally vague because

subsection (c) purports to require proof of specific intent—that the defendant

intended to meet and have sexual contact with the minor at the time of the

solicitation—only to have subsection (d) “eliminate[] the intent element” of (c).

Wheeler asserts that this contradiction prevents persons of ordinary intelligence

from understanding the prohibited conduct.

       Finally, Wheeler asserts that the statute violates the Dormant Commerce

Clause because it unduly burdens interstate commerce by “attempting to place

regulations on [i]nternet users everywhere.”

       Based on his premise that the statute is a content-based restriction on

protected speech, Wheeler asserts that we must presume the statute invalid and that

the State has the burden to demonstrate its validity under the categorical approach

employed by the United States Supreme Court in Alvarez and Stevens. See United

States v. Alvarez, 132 S. Ct. 2537 (2012); United States v. Stevens, 559 U.S. 460

(2010).    Alternatively, he argues that, at a minimum, we must subject the statute

to strict scrutiny.

       The State contends that Penal Code section 33.021(c) restricts conduct and

not merely speech. Therefore, argues the State, we must presume that the statute is

valid and subject it only to rational basis review. The State contends that the

statute bears a rational relationship to the legitimate state interest in protecting



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minors from sexual predators and thus passes constitutional muster. Alternatively,

the State argues that if the combination of (c) and (d) is unconstitutional, we should

uphold subsection (c), under which Wheeler was indicted, and strike the offending

portions of subsection (d).

                                 Standard of Review

      Whether a statute is facially unconstitutional is a question of law that we

review de novo. Ex parte Lo, 424 S.W.3d at 14. When the constitutionality of a

statute is attacked, we usually begin with the presumption that the statute is valid

and that the legislature has not acted unreasonably or arbitrarily in enacting it. Id.

at 14–15. The party challenging the statute normally carries the burden to establish

the statute’s unconstitutionality. Id. at 15.

      A different standard of review applies, however, if the challenged statute

seeks to restrict speech based on its content. Ex parte Lo, 424 S.W.3d at 15. In

that case, the usual presumption of constitutionality is reversed, the statute is

presumed invalid, and the State bears the burden to rebut the presumption. Id.

This is because statutes that suppress, disadvantage, or impose differential burdens

upon speech because of its content are subject to the most exacting scrutiny. Id.

(quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445

(1994)). A law that regulates speech thus survives only if it is narrowly drawn and

necessary to serve a compelling state interest. Ex parte Lo, 424 S.W.3d at 15.



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      Wheeler argues that the Court of Criminal Appeals incorrectly applied strict

scrutiny in Ex parte Lo, and he urges us to apply the “categorical approach.” We

conclude that we are bound to apply the usual standard in which we presume the

statute’s validity and Wheeler bears the burden to demonstrate its invalidity.

      Ex parte Lo leads us to this conclusion. Lo was charged under section

33.021(b), which prohibited a person from communicating online in a sexually

explicit manner with a minor if the person had the intent to arouse and gratify

anyone’s sexual desire. Ex parte Lo, 424 S.W.3d at 17. The Court of Criminal

Appeals concluded that section 33.021(b) was unconstitutionally overbroad

because it restricted and punished speech based on content but was not narrowly

drawn. Id. at 24 (noting that subsection (b) would bar electronic communication

relating to “many modern movies, television shows, and ‘young adult’ books, as

well as outright obscenity, material harmful to a minor, and child pornography”).

      In reaching that conclusion, the Court of Criminal Appeals noted that

subsection (c), under which Wheeler was charged, “provides an excellent contrast”

to subsection (b). Id. at 17. The Court described subsection (c) as a solicitation

statute, the likes of which have been routinely upheld, because offers to engage in

illegal transactions such as sexual assault of minors are categorically excluded

from First Amendment protection. Id. at 16–17. It expressly noted that the

gravamen of the offense of solicitation is “the conduct of requesting a minor to



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engage in illegal sexual acts.” Id. at 17 (emphasis in original). It contrasted

subsection (b) as “very different” because it “prohibits and punishes speech based

on its content.” Id. Following Lo, we conclude that section 33.021(c) regulates

conduct and unprotected speech.          Id. (noting solicitation of minors is

constitutionally unprotected speech); see also Ex parte Victorick, No. 09-00551-

CR, 2014 WL 2152129, at *2 (Tex. App.—Beaumont May 21, 2014, pet. ref’d)

(mem. op., not designated for publication) (concluding that section 33.021(c)

punishes conduct rather than the content of speech alone), cert. denied, Victorick v.

Texas, 135 S. Ct. 1557 (2015). We therefore must presume the statute’s validity

and place the burden of demonstrating unconstitutionality upon Wheeler. Ex parte

Lo, 424 S.W.3d at 17; Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d.) (applying presumption that statute is valid in

its review of overbreadth and vagueness challenges to Penal Code section

33.021(c)); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013,

pet. ref’d) (presuming validity of Penal Code section 33.021(c) in considering

vagueness challenge); Ex parte Victorick, 2014 WL 2152129, at *2 (applying

presumption of statutory validity in overbreadth and vagueness challenges to

section 33.021(c)).

                             Overbreadth Challenges

      According to the First Amendment overbreadth doctrine, a statute is facially



                                         7
invalid if it prohibits a “substantial” amount of protected speech “judged in relation

to the statute’s plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18 (quoting

Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S. Ct. 2191 (2003)); see also Bynum

v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). Before a statute will be

invalidated on its face as overbroad, the overbreadth must be real and substantial in

relation to its plainly legal sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973). Put differently, a statute should not be invalidated for overbreadth merely

because it is possible to imagine some unconstitutional application. See In re Shaw,

204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d).

      1.     Penal Code Section 33.021(c)

      This Court, and the Beaumont Court of Appeals, have held that Penal Code

section 33.021(c) is not unconstitutionally overbroad. See Maloney, 294 S.W.3d at

626–29 (rejecting overbreadth challenge to subsection 33.021(c)); Ex parte

Victorick, 2014 WL 2152129, at *2 (same). Nevertheless, Wheeler urges us to

revisit this precedent in light of his argument that the statute prohibits an adult

ageplayer from soliciting a consenting fellow ageplayer who is pretending to be a

child as part of a fantasy. In support of his argument, Wheeler relies on an article

by Paul J. Dohearty demonstrating the purported prevalence of ageplay.

      But longstanding precedent teaches that a statute should not be invalidated

for overbreadth merely because it is possible to imagine some unconstitutional



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application. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v.

Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118 (1984)); Ex parte

Victorick, 2014 WL 2152129, at *2. Indeed, the United States Supreme Court has

explained,

      Because of the wide-reaching effects of striking down a statute on its face at
      the request of one whose own conduct may be punished despite the First
      Amendment, we have recognized that the overbreadth doctrine is “strong
      medicine” and have employed it with hesitation, and then “only as a last
      resort.”

New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348 (1982) (citing Broadrick,

413 U.S. at 613).

      Here, the government objective—to protect children from sexual

exploitation and abuse—is one the Supreme Court of the United States regards as

having surpassing importance. Id. at 757. Although the Dohearty article asserts

that ageplay is increasingly prevalent in the age of social media, we conclude that

the legitimate reach of Penal Code section 33.021(c) dwarfs the threat of its

arguably impermissible application to innocent ageplayers and that whatever

overbreadth exists should be cured by thorough and case-by-case analysis and

judicious use of prosecutorial discretion.1 See Maloney, 294 S.W.3d at 627 (citing

Ferber, 458 U.S. at 773–74).       Because the statute’s arguable overbreadth is

insubstantial when judged in relation to the statute’s plainly legitimate sweep, we

1
      We note that Wheeler himself does not assert that he was engaging in innocent
      ageplay when he made the online solicitation for which he was indicted.

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hold that Penal Code section 33.021(c) is not unconstitutionally overbroad. Id; see

also Ex parte Victorick, 2014 WL 2152129, at *2.

      2.     Penal Code Section 33.021(d)(2)

      Wheeler contends that Penal Code section 33.021(d)(2) is overbroad because

it eliminates the element of specific intent required by subsection (c). See TEX.

PEN. CODE ANN. § 33.021(d)(2) (providing that it is not a defense to prosecution

under section 33.021(c) that the actor did not intend for the solicited meeting to

occur). Thus, argues Wheeler, the statute permits conviction even of one who did

not, in fact, intend at the time of the solicitation to actually meet the minor whom

he solicited. We disagree.

      “If a statute can be construed in two different ways, one of which sustains its

validity, we apply the interpretation that sustains its validity.”      Maloney, 294

S.W.3d at 626. Here, we read subsection (c) to require proof of specific intent to

meet at the time of the solicitation, and subsection (d)(2) to refer only to the

solicitor’s intent post-solicitation. In other words, we interpret subsection (d)(2) to

preclude only a defense on the basis that the solicitor lost the specific intent to

meet or changed his mind about meeting after the solicitation occurred. We hold

that Subsection (d)(2) does not relieve the State of its burden to prove that the




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defendant had the specific intent to meet at the time of the solicitation. 2 See Ex

parte Zavala, 421 S.W.3d at 231–32 (concluding that Penal Code sections

33.021(c) and (d)(2) are not contradictory and construing (d)(2) to mean that it is

irrelevant whether, post-solicitation, the defendant no longer intended for the

meeting to occur, because offense is complete at the time of solicitation if the

defendant has the requisite intent to meet at the time of the solicitation).

      3.     Penal Code Section 33.021(d)(3)

      Wheeler argues that Penal Code section 33.021(d)(3) is unconstitutionally

overbroad because it precludes a defense to prosecution under (c) based on the fact

that a defendant was engaged in ageplay—i.e., was fantasizing that the consenting

adult receiving the solicitation was actually a child—at the time of the solicitation.

      As we discussed above, a statute should not be invalidated for overbreadth

merely because it is possible to imagine some unconstitutional application. In re

Shaw, 204 S.W.3d at 15 (citing Taxpayers for Vincent, 466 U.S. at 800); Ex parte

Victorick, 2014 WL 2152129, at *2. As we have already concluded, the statute’s

plainly legitimate objective is one of surpassing importance. When judged in

2
      Wheeler argues that this interpretation of (d)(2) would render it superfluous and
      therefore meaningless, because a “change of heart” defense is not a defense in any
      case. We note, however, that renunciation may be an affirmative defense in some
      circumstances, see TEX. PENAL CODE ANN. § 15.04 (West 2011), and that it was
      the legislature’s prerogative to underscore in (d)(2) the concept that the offense
      described in section 33.021 is complete when the culpable request or inducement
      is unilaterally presented. We also note that the legislature has amended section
      33.021 to eliminate (d)(2) and (d)(3), effective September 1, 2015.

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comparison to the statute’s plainly legitimate sweep, we conclude that the statute’s

arguable overbreadth is insubstantial.      Accordingly, we hold that Penal Code

section 33.021(d)(3) is not unconstitutionally overbroad. Id.; see also Ex parte

Victorick, 2014 WL 2152129, at *2.

      We overrule Wheeler’s first issue.

                               Vagueness Challenge

      Under the void-for-vagueness doctrine, a statute will be invalidated if it fails

to give a person of ordinary intelligence a reasonable opportunity to know what

conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.

App. 2006). Statutes are not necessarily unconstitutionally vague merely because

the words or terms employed in the statute are not defined. See Engelking v. State,

750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When the words used in a statute

are not otherwise defined in the statute, we will give the words their plain meaning.

See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999).

      Wheeler argues that the statute is unconstitutionally vague because Section

33.021(d) “eliminates the intent element from Section 33.021(c).” Wheeler asserts

that the statute is thus self-contradcitory and, therefore, people of common

intelligence must necessarily guess at its meaning. As we discussed in the context

of Wheeler’s overbreadth challenges, if a statute can be construed in two different

ways, one of which sustains its validity, we apply the interpretation that sustains its



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validity. Maloney, 294 S.W.3d at 625. We have construed subsection (c) to

require proof of specific intent to meet at the time of the solicitation, and we hold

that subsection (d)(2) refers only to the solicitor’s intent post-solicitation. This

construction of the statute eliminates any supposed conflict between subsection (c)

and subsection (d)(2). See Ex parte Zavala, 421 S.W.3d at 232 (concluding that

Penal Code sections 33.021(c) and (d)(2) are not contradictory and rejecting

vagueness challenge based on asserted contradiction). Accordingly, we hold that

Penal Code section 33.021 is not unconstitutionally vague.

      We overrule Wheeler’s second issue.

                           Commerce Clause Challenge

      In his third issue, Wheeler contends that section 33.021 violates the Dormant

Commerce Clause of the United States Constitution by “unduly burden[ing]

interstate commerce by attempting to place regulations on the entirety of the

internet.” See U.S. CONST. art. I, § 8.

      The only authority Wheeler cites in support is American Libraries

Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (striking down statute

criminalizing use of a computer to communicate sexually explicit materials to

minors). In Pataki, the defendants “[did] not challenge the sections of the statute

that . . . prohibit adults from luring children into sexual contact by communicating

with them via the internet.” Id. at 179. Rather, the law challenged in Pataki was



                                          13
aimed at limiting exposure by minors to harmful content. It was that portion of the

law which was ultimately found to impose a burden on interstate commerce that

was disproportionate to the local benefits of regulation. Section 33.021(c), by

contrast, does not punish communication of explicit materials to minors. Instead, it

criminalizes online solicitation of minors with the intent to engage in sexual

conduct. Pataki is thus inapposite.

      The Supreme Court of the United States established a balancing test to

determine whether a burden on interstate commerce imposed by a regulation is

excessive in relation to putative local benefits. See Pike v. Bruce Church, Inc., 397

U.S. 137, 142; 90 S. Ct. 844, 847 (1970). Where the statute regulates even-

handedly to effectuate a legitimate local public interest, and its effects on interstate

commerce are only incidental, it will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the putative local benefits. Huron

Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 816

(1960). If a legitimate local purpose is found, then the question becomes one of

degree. And the extent of the burden that will be tolerated will depend on the

nature of the local interest involved, and on whether it could be promoted as well

with a lesser impact on interstate activities. Pike, 397 U.S. at 142.

      Wheeler does not articulate, and we cannot discern, how section 33.021

differentiates between inter and intra state commerce. The statute is even-handed.



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Courts have concluded—and we agree—that protecting children from sexual

predators is a legitimate local public interest. See, e.g., Ex parte Lo, 424 S.W.3d at

21 (“There is no question that the State has a right—indeed a solemn duty—to

protect young children from the harm that would be inflicted upon them by sexual

predators.”). And we also conclude that the effect of the statute on interstate

commerce is only incidental in relation to the local benefit of the statute.

Accordingly, we reject Wheeler’s challenge to section 33.021 under the Dormant

Commerce Clause. Huron Portland Cement, 362 U.S. at 443 (evenhanded local

regulation to effectuate a legitimate local public interest is valid unless unduly

burdensome on interstate commerce).

      We overrule Wheeler’s third issue.

                                    Conclusion

      We affirm the trial court’s ruling denying Wheeler’s application for habeas

corpus relief.




                                                    Rebeca Huddle
                                                    Justice



Panel consists of Justices Jennings, Higley, and Huddle.
Publish. TEX. R. APP. P. 47.2.



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