                                                                            ACCEPTED
                                                                       01-14-00868-CR
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                   2/5/2015 4:19:04 PM
                                                                  CHRISTOPHER PRINE
                                                                                CLERK



             No. 01-14-00868-CR
                                                       FILED IN
                                                1st COURT OF APPEALS
                    ln the                          HOUSTON, TEXAS
Court of Appeals for the First District of   Texas
                                                2/5/2015 4:19:04 PM
                 At Houston                     CHRISTOPHER A. PRINE
                                                        Clerk




            Cause No. 2014V-0074
           ln the 155th District Court
           Of Austin County, Texas



       EX PARTE STUART WHEELER



             APPELLEE'S BRIEF


                                 Brandy N. Robinson
                                 One East Main Street
                                 Bellville, Texas 77418
                                 (e7e) 865-5e33
                                 Texas Bar No. 24051688




      ORAL ARGUMENT REQUESTED
         STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument pursuant to Texas Rule of Appellate
                          Procedure 39.7.




                                 2
                  IDENTITY OF PARTIES AND COUNSEL

Appellee: State of Texas

Trial and Appellate Counsel for the State:

     Brandy N. Robinson
     Assistant Criminal District Attorney
     One East Main Street, 3'd Floor
     Bellville, Texas 77418
     (e7e) 865-5933

Trial and Appe!late Counsel for Applicant:

      Mark W. Bennett
      917 Franklin St., 4th FIoor
      Houston, TX77002

     Phil Baker
     P.O. Box 628
     La Grange, TX 78945
     (e7e) e68-3783

Trial Judge: The Honorable Jeff Steinhauser




                                      J
                          TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT                                           2

IDENTITY OF PARTIES AND COUNSEL                                             3

TABLE OF CONTENTS                                                            4

INDEX OF AUTHORITIES                                                         6

STATEMENT OF THE CASE                                                       9

ISSUE PRESENTED                                                            10

            The trial court properly denied habeas relief because the
section of Texas Penal Code S 33.021 by which Applicant is charged is
constitutional.

STATEMENT OF THE FACTS                                                     11


SUMMARY OF THE ARGUMENT                                                     12

RESPONSE TO POINT OF ERROR            ONE                             ......14
           The remaining subsections of Texas Penal Code S 33.021
should be upheld under a rational basis standard of review, as they restrict
unprotected criminal conduct rather than constitutionally protected speech.
Moreover, the statute is narrowly tailored to serve a compelling
governmental interest.

     A.  Strict Scrutiny Applies to Laws Restricting Speech,
            Not Conduct
      B. Subsection (b) Regulated Speech, but Subsection (c) Regulates
            Conduct
      C. Subsection (c) Restricts Criminal Solicitation
      D. Subsection (d) Does Not Change the Standard of Review
           Alternatively, Any Unconstitutional Portions of Subsection (d)
            Should Be Struck
      E. Section (C) Survives Rational Basis Review



                                      4
      F. Texas Penal Code S 33.021 ls Not Overly Broad
             1. The Statute   is Narrowly Tailored
             2.   The Statute Serues a Compelling Governmental lnterest
RESPONSE TO POINT OF ERROR TWO                                       . ... .35
      The remainder of Texas Penal Code S 33.021 survives any
vagueness challenge, as the plain meaning of the word "solicitation" in the
statute is facially clear.

      A. Applicant Cannot Raise a New Vagueness Ground
             on Appea!
      B.   Subsections (c) and (d) Are Not lmpermissibly Vague
RESPONSE TO POINT OF ERROR THREE...                                            40
      The Dormant Commerce Clause does not apply to $ 33.021.
Alternatively, the statute survives the Dormant Commerce Clause
balancing test, as any potential burden on commerce does not outweigh
the legitimate local interest in preventing solicitation of minors for illegal
sexual acts.

      A. The Dormant Commerce Clause Does Not Apply
      B. Subsection (c) Does Not Restrict Commerce
      C. Texas Penal Code S 33.021 Passes the Pike Test
PRAYER                                                                        .44

CERTIFICATES OF COMPLIANCE AND SERVICE                                        45




                                        5
Cases
Aaron y. Sfafe, 161 Tex. Crim. 156 (Tex. Crim. App.   1954)----       ----38
Am. Libran'es Assh v. Pataki,969 F. Supp. 160 (S.D.N.Y. 1gg7) -----------40
Broadrick v. Oklahoma,413 U.S. 601   (1973)                           15, 29
Bynum y. Sfafe, 767 S.W.2d 769 (Tex. Crim. App.     1989)        ----------28
Cameron v. Johnson, 390 U.S. 611   (1968)-                          ------36
Cardenas v. Sfafe, 640 S.W.2d 291 (Tex. Crim. App.    1982)----        ---24
Cerda v. State,750 S.W.2d 925 (Tex. App.-Corpus Christi 1988) --------38
Chaplinsky v.Sfafe of New Hampshire, 315 U.S. 568     (1942)         -----20
Colten v. Kentucky, 407 U.S. 104(1972)                           ---------36
Connally v. Gen. Const. Co.,269 U.S. 385 (1926)                   --------36
Duncantell v. State,230 S.W.3d 835 (Tex. App.-Houston [14th Dist.]
  2007)----                                                           ----26
Ely v. Sfafe, 582 S.W.2d 416 (Tex. Crim. App. 1979)              12, 14,26
                                        2013)---- -----passim
Ex Parte Lo,424 S.W.3d 10 (Tex. Crim. App.
Ex Parte Thompson,442 S.W.3d 325 (Tex. Crim. App. 2014)  ----21
Ex Parte Zavala,421 S.W.3d227 (Tex. App.-San Antonio2013, pet.
  ref d.   )--                                               -----Passim
Frieling v. State,67 S.W.3d 462, (Tex. App.-Austin    2002)        --20,34
Grayned v. City of Rockford, 408 U.S. 104 (1972)                          36
ln re Shaw,204 S.W.3d 9 (Tex. App.-Texarkana 2006, pet. refd.)     ""--27
Maloney v. Sfafe,294 S.W.3d 613 (Tex. App.--Houston [1't Dist.] 2009, pet.
  refd.    )--"--                                                ---passim
                                          1987)
Mattias v. Sfafe, 731 S.W.2d 936 (Tex. Crim. App.                ----------38
McBumey v. Young, 133 S. Ct. 1709 (2013)---------                  -------43



                                     6
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
 466 U.S. 789 (1984)                                                            26
New York v. Ferber,4s8 U.S. 747     (1982)                     ----20, 27 , 33, 34
Oregon Waste Sys., lnc. v. Dep't of Envtl. Quality of State of Or., 511 U.S.
  e3 (1ee4)                                                                     41

People v. Smith, 347 lll. App. 3d 446 (lll. App. Ct. 2004)   -------------27,   35
Pike v. Bruce Church, |nc.,397 U.S. 137    (1970)-----                    ------41
Rath v. Sfafe, 33 S.W. 142 (Tex. Crim. App. 1895)                               38
Rodiguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002)                          14

Rothstein v. State,267 S.W.3d 366 (Tex. App.-Houston [14th Dist.] 2008,
  pet.   refd.)---"--                                                      ----36
Sanchez v. Sfafe, 995 S.W.2d 677 (Tex. Crim. App. 1999)                         20
Sanfrkos v. State,836 S.W.2d 631 (Tex. Crim. App. 1992)                 ---15,27
Scoff v. Sfafe, 36 S.W.3d240 (Tex. App.-Houston [1"t Dist.] 2001, pet.
  refd)                                                                         31

Sfafe v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App.      2013)---           -----27
Tarlton v. Sfafe, 93 S.W.3d 168 (Tex. App.-Houston [14tn Dist.] 2002, pet.
  refd                                                                          26

Tisdale v. Sfafe, 640 S.W.2d 409 (Tex. App.-San Antonio 1982, pet.
  refd                                                                          31

United Sfafes v. Ranso n, 942 F .2d 775 (10th Cir. 1991                         31

United Sfafes v. Salerno,481 U.S. 739      (1987)                            --15
United Sfafes v. Williams, 553 U.S. 285 (2008)                             19,28
Valdez v. Valdez, 930 S.W.2d 725 (Tex.App.-Houston [1st Dist.] 1996, no
  pet.)                                                                --------- 36
Vill. of Hoffman Esfafes v. Flipside, Hoffman Estates, \nc.,455 U.S. 489
  (1e82                                                                         28


                                       7
wren v. Texas Employment com'n,915 s.w.2d 50G (Tex. App.--Houston
  [14tn Dist.] 1995, no   pet.)                                -----36

Statutes
                              (Vernon2012)-------- ---38
Tex. Pen. Code Ann. S 15.03 (c)
Tex. Pen. Code Ann. S 21.02 (Vernon)           ------------21
Tex. Pen. Code Ann. S 21.11 (Vernon)----              -----21
Tex. Pen. Code Ann. S 22.011 (Vernon)-----     -------------21
Tex. Pen. Code Ann. 522.021 (Vernon)              ----------21
Tex. Pen. Code Ann. S 33.021(aX1)(A) (Vernon2012)                   30
Tex. Pen. Code Ann. S 33.021(b)        (Vernon2012)--------      --16
Tex. Pen. Code Ann. S 33.021(c) (Vernon2012)--------     -----passim
Tex. Pen. Code Ann. S 33.021(d) (Vernon2012)--------     --------22,33
Tex. Pen. Code Ann.       S         2012)
                              43.02 (Vernon                     ----23
Texas Penal Code S 33.021 (Vernon 2012)----              -----passim
Texas Penal Code S 43.02(a) (Vernon 2012)---------            ------23

Rules
Tex. R. App. P. 9.4(i)(1)                                           45
Tex. R.App. P. 33.1                                                 36
Tex. R. App. P. 33.1 (a)                                            36




                                          8
                        STATEMENT OF THE CA$E

       The State indicted Stuart Wheeler, hereinafter referred to as

"Applicant," under subsection (c) of Texas Penal Code S 33.021 for Online

Solicitation of a Minor in Cause No. 2013R-0031. (CR 14). The defense

filed its writ of habeas corpus. (CR 3). The trial court signed an order

denying habeas relief. (CR 57). Applicant then filed notice of appeal. (CR

s6).




                                       9
                           ISSUE PRESENTED

     The trial court properly denied habeas relief because the section of

Texas Penal Code S 33.021 by which Applicant is charged is constitutional.




                                    10
      Applicant challenges the pure facia! constitutionality of the statute, not

the constitutionality as applied. Therefore, a statement of facts is

inapplicable.




                                       ll
                      SUMMARY OF THE ARGUMENT

      The Texas Court of Criminal Appeals, in Ex Parte Lo,424 S.W.3d 10

(Tex. Crim. App. 2013), examined Texas' Online Solicitation of a Minor

statute, Texas Penal Code S 33.021. The Court held that subsection (b) of

S 33.021   was unconstitutionally overbroad. Ex Parte Lo, at 14. However,

the Court expressly stated that the remaining subsections were

constitutional. Ex Parte Lo, at 16-17. Under the rational basis standard of

review, Applicant has the burden to show the present statute has no

reasonable construction which would render it constitutional. Ely v. Sfafe,

582 S.W.2d 416,419 (Tex. Crim. App. 1979). As the Texas Court of

Criminal Appeals has already found a reasonable construction which would

render the statute constitutional, the statute must be upheld.

      Further, Texas courts have specifically rejected Applicant's

arguments of overbreadth and vagueness as to the remainder of $ 33.021.

Ex parte Lo,424 S.W.3d 10; Maloneyv. Sfafe,294 S.W.3d 613,626-629

(Tex. App.-Houston [1st Dist.] 2009, pet. refd.); ex Parte Zavala,421

S.W.3d 227,231-232 (Tex. App.-San Antonio2013, pet. ref'd.). These

courts consistently held the remainder of the statute serves the compelling

interest of protecting children while being narrowly tailored to target only

predators using the internet to solicit children for illegal sex.



                                        t2
      Finally, Applicant has offered no legal basis for applying the Dormant

Commerce Clause to the present statute. However, if the Commerce

Clause applies, the statute should be upheld because the burden the

statute places on commerce, if any, does not outweigh the legitimate local

interest in protecting children from sexual solicitation.




                                        l3
      The remaining subsections of Texas Penal Code S 33.021 should be

upheld under a rational basis standard of review, as they restrict

unprotected criminal conduct rather than constitutionally protected speech.

Moreover, the statute is narrowly tailored to serve a compelling

governmental interest.

Standard of Review

      A court reviewing the constitutionality of a statute must first determine

what standard of review applies. The standard of review dictates who

holds the burden of proof and how high that burden rests. The party

challenging the   statut*here, Applicant-normally carries the burden to
establish unconstitutionality because statutes are typically presumed valid.

Ex parte Lo, 424 S.W.3d at 14-15i Maloney, 294 S.W.3d at

626 (citing Rodriguezv. Sfafe,93 S.W.3d 60,69 (Tex. Crim. App. 2002).

Generally, if there is a reasonable construction that renders the statute

constitutional, the court must uphold   it. Ely v. Sfafe, 582 S.W.2d 416, 419
(Tex. Crim. App. 1979).

      Furthermore, Applicant must meet a higher burden, as he is

challenging the facial constitutionality of (c) and (d) of $ 33.021, rather than


                                        t4
its constitutionality as applied. An applicant challenging the validity of a

statute on its face must show the statute is unconstitutional in every

application. United Sfafes v. Salerno,481 U.S. 739,745 (1987). To meet

this heavy burden, Applicant must show that no set of circumstances exist

under which the statute is valid   .   Santikos v. Sfafe, 836 S.W.2d 631, 633

(Tex. Crim. App. 1992).

        A. Strict Scrutiny Applies to Laws Restricting         Speech,

                                   Not Conduct

     A "strict scrutiny" standard of review is inappropriate here because it

applies to statutes that regulate speech solely based on content. lf the

statutory provision regulates speech solely due to content, then the statute

will be "presumed invalid," and the State must rebut that presumption. Ex

Parte Lo, 424 S.W.3d at 15. By contrast, if the statute punishes conduct

instead of speech, the courts use a "rational basis" standard of review.

This means the court must review the statute de novo with the presumption

that the law is valid, and the sole concern is whether the statute has a

rational relationship to a legitimate state purpose. Ex Parte Lo, 424 S.W.3d

at 14-15. See Broadrick v. Oklahoma,413 U.S. 601, 615 (1973).




                                          l5
                  B. Subsection (b) Regulated Speech,
                     but Subsection (c) Regulates Conduct

      Applicant argues that subsection (c) regulates speech and must be

examined under the strict scrutiny standard; however, the Texas Court of

Criminal Appeals clearly stated subsection (c) regulates conduct instead of

speech. Ex Parte Lo, 424 S.W.3d at 15-16. Applicant tries to categorize

both the constitutional and unconstitutional subsections of $ 33.021

together and claims they both regulate constitutionally protected speech.

However, when the Court examined S 33.021in Ex Parte Lo, the Court

made an adamant distinction between subsection (b), which

unconstitutionally sought to regulate speech based solely on content, and

subsection (c), which constitutionally sought to regulate criminal conduct.

Ex Parte Lo, 424 S.W.3d at 15-16.

      The plain text of the statute demonstrates the distinction between

speech and conduct. Subsection (b) prohibits communicating in a sexually

explicit manner with a minor or distributing sexually explicit material to a

minor. Tex. Pen. Code Ann.     S 33.021(b)   (Vernon2012). The content of

the communication, rather than the purpose for which it was done, was key.

As Subsection (b) banned communication and distribution of

communicative material based solely on its sexually explicit nature, it



                                       t6
restricted speech based on content. Subsection (c) instead prohibited

using language to commit the criminal conduct of solicitation. Subsection

(c) prohibits a person who knowingly solicits a minor to meet another

person with the intent that the minor will engage in sexual contact, sexua!

intercourse, or deviate sexual intercourse. Tex. Pen. Code Ann. $

33.021(c) (Vernon2012). This subsection seeks to regulate the criminal

act of soliciting a minor for sex, regardless of whether the language used to

do so is sexually explicit.

       The Court in lo found subsection (bFthe "sexually explicit

com   mun   ication" su bsection-reg   u   !   ated constitutiona ly protected speech
                                                                I




and did not survive strict scrutiny. Under a strict scrutiny standard, the

State must prove that the statute is necessary to serve a compelling state

interest and that the statute is narrowly drawn to use the least restrictive

means to promote that interest. Ex Parte Lo,424 S.W.3d at 19. The Court

found subsection (b) unconstitutional, stating, "The statute bars explicit

descriptions of sexual acts, but it also bars any electronic communication or

distribution of material that "relates to" sexual conduct. That bar would

encompass many modern movies, television shows, and "young adult"

books, as we!! as outright obscenity, materia! harmful to a minor, and child

pornography." Ex Parte Lo,424 S.W.3d at 17-20. The Court found that



                                                 t7
while protecting children from sexual exploitation is a competling state

interest, subsection (b)'s prohibition on communication prohibited

substantial innocent speech as well, and thus, was not narrowly tailored to

promote that interest.

            C. Subsection (c) Restricts Criminal Solicitation
      The Texas Court of Criminal Appeals distinguished subsection         (cF
the "solicitation" subsection-from (b) by stating it properly prohibits the

conduct of soliciting a child for illegal activity. Ex Parte Lo, 424 S.W.3d at

16. Applicant essentially claims that since both subsections can be

violated by using words, they both must be "speech" for the purposes of a

First Amendment analysis. However, the Court soundly rejected that

reasoning, stating, "Thus, it is the conduct of requesting a minor to engage

in illegal sexual acts that is the gravamen of the offense." /d. The

solicitation law does not regulate the nature or type of speech a defendant

uses to communicate with a minor; rather, the law prohibits defendants

from attempting to procure a child for sex through the internet, no matter

the content of language used. Statutes seeking to regulate conduct fall

under the "rational basis" standard.

      Furthermore, criminal solicitation falls into a category of speech

outside the realm of First Amendment constitutional protection. Applicant



                                       l8
argues that the Court should bypass the strict scrutiny standard altogether

and solely apply a categorica! approach to determine constitutionality of the

statute. lf the court were to do so, the statute would still stand because

criminal solicitation has long fallen outside the hallows of constitutionally

protected speech. The Texas Court of Criminal Appeals, referring to

subsection (c) stated, "Such solicitation statutes exist in virtually all states

and have been routinely upheld as constitutional because "offers to engage

in illega! transactions [such as sexual assault of a minor] are categorically

excluded from First Amendment protection." Ex parte Lo, 424 S.W.3d at

16; citing United Sfafes v. Williams, 553 U.S. 285,297 (2008).

      The United States Supreme Court has traditionally held that certain

types of speech are categorically unprotected by the First Amendment. ln

Chaplinsky v. Sfafe of New HampshtTe, the Court held, "...it is well

understood that the right of free speech is not absolute at all times and

under all circumstances. There are certain well-defined and narrowly

limited classes of speech, the prevention and punishment of which have

never been thought to raise any Constitutional problem. These include the

lewd and obscene, the profane, the libelous, and the insulting or'fighting'

words-those which by their very utterance inflict injury or tend to incite an

immediate breach of the peace. lt has been well observed that such



                                        t9
utterances are no essential part of any exposition of ideas, and are of such

slight social value as a step to truth that any benefit that may be derived

from them is clearly outweighed by the social interest in order and

morality." Chaplinsky v. Sfafe of New Hampshire,315 U.S. 568, 571-572

(1942). Essentially, words that are used to incite criminal acts, such as

sol icitation, are trad itional ly   un   protected.

       The United States Supreme Court expounded on how this might

appty to crimes against children when it reviewed an anti-pornography

statute in New York v. Ferber. The Court stated, "When a definable class of

material, such as that covered by S 263.15, bears so heavily and

pervasively on the welfare of children engaged in its production, we think

the balance of competing interests is clearly struck and that it is permissible

to consider these materials as without the protection of the First

Amendment." (Emphasis added). New Yorkv. Ferber,458 U.S. 747,763'

764 (1982). Clearly, certain types of speech, particularly expression used

to facilitate crimes against children, fall into a category unprotected by the

United States Constitution.

       The Texas courts, too, have historically found certain types of speech

unprotected. Solicitation of prostitution, bribery, and extortion have all been

found to be speech without constitutional protection, as they constitute



                                                20
criminal conduct. See Fn'eling v. Sfafe, G7 S.W.3d 462, (Tex. App.-Austin

2002, pet. ref d .); sanchez v. sfafe, gg5 s.w .2d o7T ,688 (Tex. crim. App.

1999). ln Ex Pafte Thompson,442 S.W.3d 325, 338 (Tex. Crim. App.

2014), the Texas Court of Criminal Appeals explained the basic reasoning

behind what merits constitutional protection versus what does not, stating,

"When the intent is to do something that, if accomplished, would be

unlawful and outside First Amendment protection, such as the intent to

threaten or intimidate, such an intent might help to eliminate First

Amendment concerns." Texas Penal Code S 33.021 (c) specifically

requires the defendant have "the intent that the minor will engage in sexual

contact." Tex. Pen. Code Ann. S 33.021(c) (Vernon2012). Under Texas

Iaw, it is unlawfu! for a minor to engage in sexua! conduct with an adult.

Tex. Pen. Code Ann. SS 21 .02, 21.11,22.011, 22.021 (Vernon). Therefore,

the unlawful intent required by the statute eliminates the First Amendment

protection concerns the Applicant attempts to raise.

      D. Subsection (d) Does Not Change the Standard of Review

      Subsection (d)'s addendums, when read in context with subsection

(c), do not change the applicable standard of review. Applicant argues that

subsection (c) does not criminalize solicitation when read in conjunction

with subsection (d). Subsection (d)(1) states that it is not a defense if a


                                      2t
meeting did not occur, subsection (d)(2) states that it is not a defense if the

actor did not intend for a meeting to occur, and subsection (dX3) states it is

not a defense if the actor is engaging in fantasy at the time of the offense.

Tex. Pen. Code Ann. S 33.021(d) (Vernon 2012). The court in Zavala

directly rejected the claim that any of these three subsections significantly

altered subsection (c), but subsection (dX3) wi!! be discussed in greater

depth during the State's analysis on overbreadth. Regarding subsections

(dX1) and (dX2), the Zavala court found that the crime under subsection (c)

is committed and completed at the time of the actual internet solicitation;

therefore, when read in context, subsections (d)(1) and (dX2) apply to a

defendant's conduct and mental state after the offense was committed, not

at the time of the solicitation. Zavala,421 S.W.3d at 232.

      By examining the legislative history, the Zavala court reasoned that

rather than negating the intent requirement of subsection (c), subsections

(dX1) and (dX2) merely prevent the defendant from using his intent and

actions after the crime as a defense. The statute explicitly states that

subsection (dX3) applies to the mental state during the commission. Tex.

Pen. Code Ann. S 33.021(d) (Vernon2012). This contrasts with (d)(1) and

(dX2). A plain reading of subsection (dX1) shows it applies to whether a

meeting actually occurred after the solicitation took place.   /d As the


                                      22
legislature chose not to apply the same at-thetime-of-the-offense language

to (dX2) that it applied to (dX3), (dX2) instead can be read along with (d)(1)

to apply to what occurs after the elements of the offense have already been

completed. Therefore, subsection (dX2) does nothing to alter or negate

subsection (c)'s intent requirement.

      Subsection (c), along with subsection (d), can best be analogized to

the Iaw against solicitation for prostitution. The Iaw against prostitution,

Texas Penal Code S 43.02(a), reads, in part, that a person commits a crime

when he or she knowingly, "offers to engage, agrees to engage, or

engages in sexual conduct for a fee" or knowingly "solicits another in a

public place to engage with the person in sexual conduct for hire." Tex.

Pen. Code Ann. S 43.02 (Vernon 2012). Similarly, subsection (c) of the

online solicitation statute requires a defendant to knowingly make an offer,

or solicitation, to a minor to engage in sexual conduct. Tex. Pen. Code

Ann. S 33.021(c) (Vernon 2012). Under the prostitution statutue, the State

could either charge that a defendant offered, agreed, or solicited the illega!

sexual conduct, or the State could charge the defendant actually engaged

in the sexual conduct. Whether the State charged the defendant with

solicitation or with actually engaging in prostitution created an enormous

difference in the State's burden of proof.



                                       23
      ln Cardenas v. Sfafe, the Texas Court of Criminal Appeals discussed

this crucial distinction. The Court explained, "The information reflects that

appellant was charged with "knowingly offer and agree" to engage in sexual

conduct, to-wit: sexual contact-a type of sexual conduct. The intent that

must accompany future sexual contact need not accompany the offer or

agreement to engage in sexual conduct." Cardenas v. Sfafe,640 S.W.2d

291,292 (Tex. Crim. App. 1982). The Court elaborated, "lf appellant had

been charged with engaging in sexual contact instead of

with offering or agreeing to engage in sexual contact, Victory, supra, would

be controlling because "with intent to arouse or gratify the sexual desire of'

some person would be an accompanying mental state to the act alleged."

ln Cardenas, then, the State merely had to prove the mens rea necessary

to make the offer, and the State did not have to prove the elements, and

mens rea, of actually committing the sexual act.

      Subsections (d)(1) and (dX2) essentially codify this same concept as

it applies to the Online Solicitation statute. The State can charge a

defendant with Online Solicitation under S 33.021, or, if the defendant

engaged in actual illegal sexual contact, the State could charge the

defendant under sections of the penal code covering the acts committed. lf

the State charged the defendant with engaging in actual sexual abuse, the


                                      24
State would have to prove up the requisite mens rea for said abuse under

that statute. On the other hand, if the defendant is solely charged with

solicitation, subsections (dX1) and (dX2) put a defendant on notice that the

State will not have to prove anything at all regarding the defendant's intent

or conduct after the solicitation has occurred; rather the State will meet its

burden merely by proving the defendant intended to engage in the

solicitation, regardless of what happened after the fact.

    Alternatively, Any Unconstitutional Portions of Subsection (d)

                              Should Be Struck

      lf the court were to find that any portion of subsection (d) could not be

read consistently with subsection (c), then legislative intent is best served

by upholding the constitutionality of subsection (c) and striking out any

potentially inconsistent subsections. The Iegislative intent behind S 33.021

was to permit law enforcement officers to find and catch sexual predators

before the predator makes actual contact with, and harms, a

child. See Criminal Justice Comm., Senate Research Ctr., Bill Analysis,

Tex. H.B.2228,79th Leg., R.S. (July 27,2005). The Texas Court of

Criminal Appeals addressed S 33.021, saying, "Looking at the present

statute, the compelling interest of protecting children from sexual predators

is well served by the solicitation-of-a-child prohibition in subsection   (c)." Ex


                                       25
Parte Lo,424 S.W.3d at23. Should any impermissible conflict be found,

the court should uphold subsection (c), which properly serves the

!egislative interest.


Arouments and Authorities

              E. Section (C) Survives Rational Basis Review
      Subsection (c) of $ 33.021 survives constitutional analysis under a

Rational Basis standard of review. Subsection (c) prohibits conduct that

has no First Amendment free speech protection; therefore, the court must

analyze it de novo under a "rational basis" standard of review and presume

the statute is valid . Ex Parte Lo, 424 S.W.3d at 14; Maloney,294 S.W.3d

at 626. lf a reasonable construction exists that renders the statute

constitutional, the court must uphold   it. Ely, 582 S.W.2d 419 Tarlton v.
Sfafe, 93 S.W.3d 168, 175 (Tex.App.-Houston [14th Dist.] 2002, pet.

refd); Duncantell v. State,230 S.W.3d 835, 843 (Tex. App.-Houston [14th

Dist.l 2007, pet. refd).

      The "rational basis" standard of review places the burden on the

Applicant, not the State. Applicant expresses concern that an adult

engaging in innocent roleplay could feasibly be targeted under the law.

Brief for Appellant, at   5-6. However, "[T]he mere fact that one can
conceive of some impermissible applications of a statute is not sufficient to


                                        26
render it susceptible to an overbreadth challenge." Members of City Council

of City of Los Angeles v. Taxpayers for Vincent,466 U.S. 789,800 (1984).

The presumption of validity means that to prevail, Applicant must prove that

subsection (c) could never be constitutionally applied to any defendant

under any set of facts or circumstances. Sfafe v. Rosseau, 396 S.W.3d

550, 557 (Tex. Crim. App. 2013); Santikos v. Sfafe, 836 S.W.2d 631, 633

(Tex. Crim. App. 1992). Applicant provided no evidence or argument to

that effect.

      Texas courts have already determined that subsection (c) has a

rational relationship to a Iegitimate state purpose. As our First Court of

Appeals stated, "The prevention of sexual exploitation and abuse of

children addressed by the Texas online solicitation of a minor statute

constitutes a government objective of surpassing importance." Maloney,

294 S.W.3d at 628; citing New York v. Ferber,458 U.S. 747,773 (1982); ln

re Shaw,204 S.W.3d 9, 15 (Tex. App.-Texarkana 2006, pet.

ref'd.); People v. Smith,347 lll. App. 3d446 (lll. App. Ct. 2004). The Court

of Crimina! Appeals, referring to S 33.021(c), stated, "Looking at the

present statute, the compelling interest of protecting children from sexual

predators is well served by the solicitation-of-a-child prohibition in

subsection (c)." Ex Parte Lo,424 S.W.3d      at23. Subsection (c), which


                                       27
penatizes soliciting minors for illegal sex acts, clearly has a rational

relationship to the legitimate state purpose of protecting children from

sexual exploitation and abuse.

           F. Texas Penal Code S 33.021 ls Not Overly Broad
      Subsection (c) of Texas Penal Code S 33.021 triumphs over any

overbreadth argument. Our First Court of Appeals has already upheld the

facial constitutionality of subsection (c) against a First Amendment-based

overbreadth challenge, and the Court of Criminal Appeals applauded the

reasoning. Maloney,294 S.W.3d at625-29; Ex Parte Lo,424 S.W.3d at

15-16. A statute is impermissibly overbroad if, in addition to prohibiting

acts that may be constitutionally prohibited, it includes speech or conduct

protected by the First Amendment. Bynum v. Sfafe, 767 S.W .2d 769, 772

(Tex. Crim. App. 1989); see also Vill. of Hoffman Esfafes v. Flipside,

Hoffman Esfafes, lnc., 455 U.S. 489 , 494    (1   982). As discussed above,
solicitation of another to perform a crimina! act is not speech protected by

the First Amendment. Williams, 553 U.S., at297. As subsection (c) only

prohibits speech or conduct that is unprotected by the First Amendment, it

cannot run afoul of the overbreadth doctrine.

      Moreover, as subsection (c) regulates conduct, not mere speech,

Applicant must meet an even heavier burden to prove the statute is



                                       28
overbroad. As the First Court of Appeals pointed out, "When conduct and

not merely speech is involved, any overbreadth of a statute must "not only

be real, but substantial as well, judged in relation to the statute's plainly

legitimate sweep." Broadrick,413 U.S. at 61 5; Maloney, 294 S.W.3d at

627. Applicant alleges that subsection (c) criminalizes a substantial

amount of constitutionally protected speech by forbidding fantasies. Brief

for Appellant, at 11-12. However, this argument has been considered and

rejected by both the First and Fourth Courts of Appeals

      Subsection (c) is narrowly drawn to regulate those who would use the

internet to obtain minor victims for sexual misconduct. The "substantial

amount of protected speech" Applicant claims will be prohibited by the

current statute is fantasy role-playing, or "ageplay." Brief for Appellant, at

13. The Maloney court examined this reasoning and rejected it. Maloney

succinctly stated, "More importantly, S 33.021 does not make it a criminal

offense simply to engage in a fantasy, as appellant seems to suggest.

Rather, S 33.021 unambiguously provides that a person is prohibited from

knowingly soliciting a minor over the internet, or through other electronic

media, to meet him or another person with the intent that the minor will

engage in sexual contact, sexual intercourse, or deviate sexua! intercourse

with him or another person." Tex. Penal Code Ann. S 33.021 (c); Maloney,


                                       29
294 S.W.3d at 628-629. The statute does not criminalize the act of fantasy

unless a defendant is engaging in fantasy while also intending to solicit a

minor for sex.

                    1. The Statufe is Narrowly Tailored
      First, the statute's definition of "minor" is narrowly drawn to serve the

State's interest. Applicant argues that the statute defines "minor" too

broadly because it includes "an individua! who represents himself or herself

to be younger than 17 years of age." Tex. Pen. Code Ann.

533.021(aX1XA) (Vernon 2012). Applicant claims this would penalize

adults who are merely engaging in a mutual fantasy with other adults. Brief

for Appellant, at 13-15. However, a plain reading of the statute would not

criminalize two adults who agree that one of them will pretend to be a minor

during their conversations. ln a truly innocent "ageplay" scenario, the

person solicited would first represent herself to be an adult but then agree

to pretend to be a minor. By contrast, in an illegal solicitation, the person

solicited has represented themselves as someone under the age of

seventeen

      The statute, as written, prevents a defendant from relying on the

defense that even though a minor represented herself as a child, he

thought she was older. The reasoning behind this is analogous to the



                                       30
reasoning behind strict liability laws regarding sexual abuse. ln Scoff v.

Sfafe, the First Court of Appeals explained why statutory rape laws are

constitutional, stating, "The statute rationally furthers a legitimate

governmental interest. lt protects children from sexual abuse by placing the

risk of mistake as to a child's age on an older, more mature person who

chooses to engage in sexual activity with one who may be young enough to

fall within the statute's purview." Scoff v. Sfafe, 36 S.W.3d240 (Tex.

App.-Houston [1"t Dist.] 2001, pet. ref'd.); citing United Sfafes v. Ranson,

942F.2d775,776-77       (10th Cir.   1991). Likewise, here, a defendant bears

the risk when soliciting a person who has clearly represented himself or

herself to be younger than seventeen.

      Next, the potential, if any, for abuse of the statute to restrict innocent

behavior remains exceptionally low. The instant issue can be analogized

again to the Texas law prohibiting solicitation of prostitution. ln Tisdale   v.


Sfafe, the San Antonio Court of Appeals faced a similar overbreadth

challenge to the prostitution statute. There, the defendant listed five

separate innocent interactions which could theoretically be prosecuted

under the Texas prostitution law. Tisdale v. State, 640 S.W.2d 409,

414 (Tex.   App.-San Antonio 1982, pet. refd.). The court found          it

persuasive that the defendant was unable to provide any cases



                                          3l
demonstrating an actual abuse of the statute, and the court held it was

clearly possible to narrowly interpret the statute in order to protect innocent

interests. /d. Likewise, Applicant has failed to provide any case-specific

examples of overreaching by the State to prosecute harmless fantasy

between adults.

      Finally, Subsection (d)(3), when read in proper context with

subsection (c), does not unnecessarily regulate pure fantasy behavior. The

Fourth Court of Appeals in Zavala found Applicant's "fantasy" argument

unpersuasive. Whether or not "ageplay" is prevalent is irrelevant, as the

statute does not criminalize adults seeking to sexually pretend with other

adults. Subsection (c) penalizes adults knowingly seeking children for

sexual activity. The defendant in Zavala attempted to argue that by

disallowing fantasy as a defense, the legislature had criminalized engaging

in fantasy. Ex Parte Zavala,421 S.W.3d at 231-232.         Ihe Zavala court

responded, "The crime of soliciting a minor under S 33.021(c) is committed,

and is completed, at the time of the request, i.e., the solicitation. The

requisite intent arises within the conduct of soliciting the minor, and must

exist at the time of the prohibited conduct of solicitation." Ex Parte Zavala,

421 S.W.3d at 232. That mens rea of knowing solicitation of a minor must

exist at the time of the solicitation; if it does not, then the crime has not



                                        32
been committed. Again, the fact that a defendant was also engaged in

fantasy at the time of the solicitation will not excuse him. The statute is

sufficiently limited to target those who are actively seeking children for

sexual abuse.

      As Maloney, Lo and Zavala clearly held, subsection (c) is narrowly

tailored to protect children from sexual abuse, and subsection (d) merely

provides that an accused who has actively sought to solicit a child for sex

may not defend against the charge by later arguing that he changed his

mind orwas just engaging in a fantasy. Tex. Pen. Code Ann. S 33.021(d)

(Vernon 2012); Maloney,294 S.W.3d at628-629; Ex Parte Lo,424 S.W.3d

at 16-17,21; Ex Parte Zavala,421 S.W.3d at 232. The FirstCourt of

Appeals concluded that any slight potential for overbreadth of $ 33.021 is

not prohibitive when judged in relation "to its plainly legitimate sweep."

Maloney,294 S.W.3d at628. A constitutional overbreadth challenge

cannot prevail.

      2. The Statufe Seryes a Compelling Governmental lnterest
     The protective sweep of $ 33.021 (c) promotes a state interest that

far outweighs the potential for improper application. Applicant has

conceded that the online solicitation statute promotes a compelling state

interest. Brief forAppellant, at17. ln Neur Yorkv. Ferber, the United


                                      33
States Supreme Court explained that a statute which could prohibit

constitutionally protected speech or conduct can still be upheld when the

statute's legitimate reach dwarfs all potentially impermissible applications.

New York v. Ferber,458 U.S. 747 , 773-774 (1982).

      The public interest in protecting children from being solicited online

for sexual abuse is clearly high. The defendant in Frieling v. State argued

that the Texas prostitution statute was overbroad because it swept innocent

conduct, such as joking or merely pretending to agree to prostitution under

its umbrella of prohibition. Frieling v. Sfafe, 67 S.W.3d 462, 473-474 (Tex.

App.-Austin 2002, pet. ref'd.). However, the Frieling court found that the

public interest in restricting prostitution substantially outweighed the

defendant's overbreadth concerns. Likewise, Applicant argues that the

present statute fails because someone who merely pretends to solicit

minors could be prosecuted under the present statute. The governmental

interest in protecting children from sexual abuse certainly equals, and likely

far exceeds, the governmental interest in regulating prostitution.

      Likewise, the United States Supreme Court in New York v. Ferber,

stated the mere potential for impermissible application alone will not make

a statute facially invalid when the governmental interest is high. Ferber,

458 U.S. at773-74. The Ferbercase examined whether New York's child


                                       34
pornography statute was overbroad. The court noted that the statute could

hypothetically restrict innocent images such as medical and social texts;

however the court found that the interest of protecting children from abuse

completely dwarfed any potentially impermissible application. Ferber, 458

U.S. at 773.

       ln People v. Smith, the lllinois Appellate Court, Third District, upheld

a similar indecent solicitation of a child statute, rejecting the overbreadth

argument. Smith,347 lll. App. 3d 446. The Smifh court concluded that

while some misapplication of the statute could potentially occur, the

legitimate goal of the statute-to prevent sexual exploitation and abuse of

children-far surpassed any potential unlaMul applications. /d. The court

found that situations where the State may abuse the statute to try to punish

innocent conduct would be exceedingly rare. /d. Likewise, Applicant here

has failed to show that the rare potentia! for improper application outweighs

the substantial State interest involved.




      The remainder of Texas Penal Code 533.021 survives any

vagueness challenge, as the plain meaning of the word "solicitation" in the

statute is facially clear




                                       35
         A. Applicant Cannot       Raise a New Vagueness Ground

                                   on Appeal

      Texas Pena! Code S33.021(c) has survived past challenges for

vagueness. Ex Parte Zavala,421 S.W.3d at 232; Maloney,294 S.W.3d at

628-629. To find a statute is unconstitutionally vague, the court must find

that men of common intelligence must necessarily guess at the statute's

meaning . Connally v. General Construction Co., 269 U.S. 385, 391 (1926).

See Grayned v. City of RocWord, 408 U.S. 104, 108-1 14, (1972); Colten

v. Kentucky, 407 U.S. 104, 110-1 11 (1972); Cameron v. Johnson, 390

U.S. 61 1,616 (1968). Applicant's sole argument in his brief to the trial

court was a summary conclusion that men of ordinary intelligence must

guess at the meaning of the word "solicitation." Application for Writ of

Habeas Corpus and Brief in Support, at 7-8.

      Applicant now argues the entirety of Texas Penal Code $33.021 is

vague due to Applicant's perceived inconsistencies in the meanings of

subsection (c) and subsection (d). Brief for Appellant, at 18-20. Texas

Rule of Appellate Procedure 33.1(a) requires Applicant to give the grounds

for his complaint to the trial court with sufficient specificity to make the trial

court aware of the complaint in order to preserve his grounds for appellate



                                        36
review. Tex. R. App. P. 33.1 (Vernon). Applicant cannot now raise new

grounds for vagueness that he did not raise at the trial court level. Valdez

v. Valdez,930 S.W.2d725 (Tex. App.-Houston [1't Dist.] 1996, no pet.);

Wren v. Texas Employment Com'n,915 S.W.2d 506 (Tex. App.-Houston

114'n   Dist.l 1995, no pet). Applicant's present objection must comport with

his former objection at trial in order to be preserved for review. Rothstein v.

Sfafe,267 S.W.3d 365 (Tex. App.-Houston [14fi' Dist.] 2008, pet. refd.).

At trial, Applicant solely objected to the plain meaning of one word. Now,

he objects to multiple subsections on the ground that they cannot be read

consistently. This new objection was not preserved.

          B. Subsections (c) and (d) Are Not lmpermissibly Vague
        Alternatively, Texas courts have addressed similar concerns before in

other solicitation offenses and have had no trouble interpreting the State's

burden. The meaning of solicitation in Texas Penal Code 533.021 does not

differ substantially from any of Texas's other solicitation offenses.

Applicant claims that the court's reasoning in Zavala only illustrates the

vagueness within the statute. Brief for Appellant, at 18-20. However,

Applicant fundamentally misinterprets the distinction made by the Zavala

court-a distinction made frequently regarding solicitation crimes. The
defendant's actions and intent after the solicitation occurred are irrelevant.



                                        37
The State need only prove the defendant possessed the requisite mens rea

when the solicitation occurred.

       ln all cases that involve an offer to commit criminal activity, there are

two mens reas potentially at issue: the mens rea necessary to commit the

solicitation, and the mens rea to commit the actual crime being solicited.

The State must prove the former, not the latter. For example, Texas courts

have held that the offense of bribery is completed when the offer or

agreement is made, and it is no defense that the action for which one was

bribed was never undertaken. Rath y. Sfafe, 33 S.W. 229 (Tex. Crim. App.

1895); Aaron v. Sfafe,275 S.W.2d 693,695 (Tex. Crim. App. 1955); Cerda

y. Sfafe,750 S.W.2d925,927 (Tex.App.-Corpus Christi 1988, pet. ref'd.).

Likewise, the Texas Penal Code Statute for Criminal Solicitation states it is

no defense if the actor could not have actually committed the crime herself,

or if the person she solicited was not criminally responsible for the crime.

Tex. Pen. Code Ann. S 15.03(c) (Vernon2012). ln both of these examples,

the State must prove the solicitation, or offer, but the State is not required

to prove an additional mens rea or commission after the fact.

      Texas courts have treated solicitation for prostitution cases similarly.

ln Maftias v. Sfafe ,731 S.W.2d 936, 937 (Tex. Crim. App. 1987), the Texas
Court of Criminal Appeals held that a person could be guilty of knowingly



                                       38
offering to engage in prostitution even if she does not possess the intent to

actually consummate the sexual conduct. The State must prove the

defendant knowingly offered to consummate, but the State need not prove

that the defendant actually intended to consummate the act after the

solicitation was complete. Likewise, subsections (c) and (d) of Texas Penal

Code S 33.021 can be read to give a similar meaning. At the time of the

solicitation, the defendant must knowingly solicit the minor with the intent

that the minor will engage in sexual conduct. However, it is no defense if

there was no consummation or if the defendant lacked intent to

consummate after the solicitation occurred.

      Previous attacks on subsections (c) and (d) for vagueness have

failed. The defendant in Maloney unsuccessfully argued that the statute

was vague, claiming it could be read to prohibit lawfu! fantasy as well as

true solicitation. The Maloney court stated that the solicitation portion of

533.021(c) was unambiguous. Maloney,294 S.W.3d aL628-629. Later,

the defendant in Zavala argued that the internal Ianguage within the statute

left confusion as to the intent required for solicitation. Ex Parte Zavala, 421

S.W.3d at231. The Fourth Court of Appeals found the plain language

meaning of solicitation was sufficiently clear. Ex Parte Zavala,421 S.W.3d




                                       39
at231-232. The plain meaning of "solicitation" within     S 33.021 (c) survives

any challenge for vagueness.

               ilr   Rtr.qPoNstr To Po NT Otr FRI?OR TI.{Rtrtr

      The Dormant Commerce CIause does not apply to $ 33.021.

Alternatively, the statute survives the Dormant Commerce Clause

balancing test, as any potentia! burden on commerce does not outweigh

the legitimate local interest in preventing solicitation of minors for illegal

sexual acts.

           A. The Dormant      Gommerce Clause Does Not Apply

      Applicant has presented no law stating the Dormant Commerce

Clause applies to online solicitation of a minor; in fact, the case Applicant

cited as persuasive authority does not address the issue at all. The court in

American Libraries Assocration v. Pataki, specifically excluded the issue of

soliciting or luring children on the internet. The court plainly noted,

"[P]laintiffs do not challenge the sections of the statute that criminalize ...

and prohibit adults from luring children into sexual contact by

communicating with them via the internet." Am. Libraries Assh v. Pataki,

969 F. Supp. 160, 179 (S.D.N.Y. 1997). Contrary to Applicant's assertions,

that court never indicated the dormant Commerce Clause should be

applied to statutes prohibiting solicitation of minors on the internet.


                                        40
      Texas Penal Code S 33.021 does not violate the dormant commerce

Clause. Applicant claims the statute violates the clause by attempting to

place regulations on all internet users. Brief for Appellant, at20. However,

attempting to regulate internet activity is not the proper legal test that must

be applied to a state statute.

      To evaluate a state statute under the dormant Commerce Clause, a

court must first determine whether the statute facially discriminates against

interstate commerce. Oregon Waste Sys., lnc. v. Dep't of Envtl. Quality of

Sfafe of Or., 511 U.S. 93, 99 (1994). lf the statute treats commerce within

the state differently from commerce between states, then the statute is

deemed "virtually per se invalid."   /d.   !f it does not, the court must apply the

balancing test from Pike v. Bruce Church to determine whether the local

benefits outweigh the burdens on interstate commerce. Pike v. Bruce

Church, \nc.,397 U.S. 137, 142 (1970). Under the Pike test, the court must

determine if there is a legitimate local public interest and whether "the

burden imposed ... is clearly excessive in relation to the putative local

benefits." /d.

                 B. Subsection (c) Does Not Restrict Commerce
      The plain Ianguage of Texas Penal Code S 33.021 does not address

commerce at all. Tex. Pen. Code Ann. S 33.021 (Vernon 2012).



                                           4l
Commerce is the exchange of goods and services on a large scale

involving transportation between cities, states and nations. Black's Law

Dictionary (9th ed. 2009), available af Westlaw BLACKS. Appellant makes

no suggestion as to how prohibiting solicitation of minors for sex falls under

the heading of commerce. Even if the statute did touch the broadest

possible concept of commerce, Applicant has given no example of how

Texas Penal Code S 33.021 treats those using the internet within the state

to solicit children differently from those outside of the state. As the statute

does not treat commerce within the state differently than commerce

between the states, the Pike test applies

          C. Texas Penal Gode S 33.021 Passes the Pike Test
      The state in the present case has not only a legitimate local public

interest, but a compelling interest in protecting children from sexual

predators, and the Texas Court of Criminal Appeals has already held that

interest is well served by the prohibition in subsection (c). Ex Parte Lo, 424

S.W.3d at23. Further, there is neither evidence nor argument from

Applicant that any purported burden on interstate commerce would be

clearly excessive as balanced against the Iocal benefits of protecting the

children of Texas from sexual abuse.




                                       42
      Finally, the Dormant commerce clause is a ' judge-made" doctrine

and Supreme Court Justice Clarence Thomas, in a concurring opinion,

noted of the so-called Dormant Commerce Clause that it, "has no basis in

the text of the Constitution, makes little sense, and has proved virtually

unworkable in application, and, consequently, cannot serve as a basis for

striking down a state statute." McBurneyv. Young, 133 S. Ct. 1709, 1721

(2013).

                            IV.    CONCLUSION

      Soliciting minors for sexual abuse has historically fallen into a

category wholly outside the protections of the First Amendment of the

Constitution. Texas Penal Code S 33.021 (c) serves the compelling state

interest of protecting children from sexual abuse while being narrowly

drawn to meet those needs. The subsection is neither overbroad, nor

vague, and it is not prohibited by the Dormant Commerce Clause. The

State moves the court to uphold the constitutionality of the statute and

DENY Applicant any and all relief.




                                       43
                                 V.   PRAYER

      Appellee respectfully prays this Honorable Court to deny Applicant's

application for habeas relief.




                                            tuffi
                                           Respectfully su bm itted,



                                           Brandy Robinson
                                           Texas Bar No. 24051688
                                           Austin County Courthouse
                                           One East Main Street, 3'd Floor
                                           Bellville, Texas 77418
                                           (e7e) 865-5e33




                                      44
       l, Brandy Robinson, hereby certify that in compliance with Rule of
Appellate Procedure 9.4(iX1), according to Microsoft Word's word counting
function, this document contains contains 8,175 words.

Date: 2 -
                                           ra       binson




                       CERTIFICATE OF SERVICE

      l, Brandy Robinson, hereby certify that a true and correct copy of the
foregoing instrument has been served upon the Appellant by sending the
same through the United States mail to his attorney, Mark Bennett, via
email at mb@ivi3.com.



Date: 2-5_/5
                                                 Robinson




                                     45
