                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00013-CR

                     EX PARTE EVAN BLAINE JOHNSON



                           From the 54th District Court
                             McLennan County, Texas
                           Trial Court No. 2015-657-C2A


                          MEMORANDUM OPINION


       Evan Blaine Johnson appeals the trial court’s denial of his pretrial application for

writ of habeas corpus in which he requested the trial court to declare Section 32.51 of the

Texas Penal Code unconstitutional. See TEX. PENAL CODE ANN. § 32.51 (West Supp. 2015).

We affirm.

       Johnson first argues that the Section 32.51 is unconstitutionally overbroad in

violation of the First Amendment.          When presented with a challenge to the

constitutionality of a statute, we generally presume that the statute is valid and that the

legislature has not acted unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14-15;

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); Horhn v. State, 481 S.W.3d 363,
372 (Tex. App. – Houston [1st Dist.] 2015, pet. den’d). The party challenging the statute

has the burden to establish its unconstitutionality.        Ex parte Lo, 424 S.W.3d at 15;

Rodriguez v. State, 93 S.W.3d at 69. To prevail on a general, facial challenge to the

constitutionality of a criminal statute, the challenger must show that the statute always

operates unconstitutionally, in all possible circumstances. State v. Rosseau, 396 S.W.3d 550,

557 (Tex.Crim.App.2013); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908

(Tex.Crim.App.2011); Horhn v. State, 481 S.W.3d at 372. We must consider the statute

only as it is written, rather than how it operates in practice. State ex rel. Lykos, 330 S.W.3d

at 908.

          Section 32.51 of the Texas Penal Code provides:

          (a) In this section:

                  (1) "Identifying information" means information that alone or in
          conjunction with other information identifies a person, including a
          person's:
                  (A) name and date of birth;
                  (B) unique biometric data, including the person's fingerprint, voice
          print, or retina or iris image;
                  (C) unique electronic identification number, address, routing code,
          or financial institution account number;
                  (D) telecommunication identifying information or access device;
          and
                  (E) social security number or other government-issued identification
          number.

          …

                (b) A person commits an offense if the person, with the intent to
          harm or defraud another, obtains, possesses, transfers, or uses an item of:


Ex parte Johnson                                                                         Page 2
             (1) identifying information of another person without the other
       person's consent;

TEX. PENAL CODE ANN. § 32.51 (West Supp. 2015).

       Johnson argues that Section 32.51 is unconstitutionally overbroad on its face

because it criminalizes constitutionally protected speech in violation of the First

Amendment to the United States Constitution. A statute is impermissibly overbroad if it

sweeps within its coverage "a substantial amount of" speech or other conduct protected

by the First Amendment as compared to any activity it proscribes. See Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d

362 (1982); Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989); Horhn v. State, 481

S.W.3d at 372. We will not strike down a statute for overbreadth unless there is "a realistic

danger that the statute itself will significantly compromise recognized First Amendment

protections of parties not before the Court." Horhn v. State, 481 S.W.3d at 372.

       Johnson also argues that Section 32.51 is a content-based restriction on speech.

When a criminal law seeks to restrict and punish speech based on its content, the usual

presumption of constitutionality is reversed and the government bears the burden to

rebut the presumption that a content-based regulation is invalid. Ex parte Lo, 424 S.W.3d

at 15; Horhn v. State, 481 S.W.3d at 372. Content-based regulations are "those laws that

distinguish favored from disfavored speech based on the ideas expressed." Horhn v. State,

481 S.W.3d at 372.



Ex parte Johnson                                                                        Page 3
       In Horhn, the Houston First Court of Appeals considered whether Section 32.51

was unconstitutionally overbroad. Horhn v. State, 481 S.W.3d at 372. The court analyzed

the decisions of the Texas Court of Criminal Appeals in Ex parte Thompson, 442 S.W.3d

325 (Tex.Crim.App.2014) and Scott v. State, 322 S.W.3d 662 (Tex.Crim.App.2010),

abrogated on other grounds, Wilson v. State, 448 S.W.3d 418 (Tex.Crim.App.2014). Both

of those cases addressed whether certain provisions of the Texas Penal Code implicated

the First Amendment. See Horhn v. State, 481 S.W.3d at 373-375. The Houston Court

followed the analysis of the Court of Criminal Appeals and stated, “Similar to the statute

at issue in Scott, section 32.51 requires the specific intent to harm or defraud and requires

that the actor ‘obtains, possesses, transfers, or uses an item [of] identifying information’

with that specific intent.” Horhn v. State, 481 S.W.3d at 375. “Also as in Scott, section 32.51

does not specifically reference spoken words or other inherently communicative actions-

-like photographs or actual communications between adults and minors, as discussed in

Thompson and Lo.” Id.

       The court in Horhn concluded:

              Section 32.51(b) is "not susceptible of application to communicative
       conduct that is protected by the First Amendment" and does not "implicate
       the free-speech guarantee of the First Amendment." See Scott, 322 S.W.3d
       at 669. The type of conduct prohibited by section 32.51(b)--obtaining,
       possessing, transferring, or using identifying information with the intent to
       harm or defraud--is conduct that is "essentially noncommunicative, even if
       the conduct includes spoken words." See id. at 670. Such conduct does not
       indicate "an intent to convey a particularized message" with a great
       likelihood "that the message would be understood by those who viewed it."
       See Ex parte Thompson, 442 S.W.3d at 334 (citing Johnson, 491 U.S. at 404, 109
Ex parte Johnson                                                                         Page 4
       S.Ct. at 2539). Nor does it impose on the "free communication and receipt
       of ideas, opinions, and information" as contemplated by the free-speech
       guarantee of the First Amendment. See Scott, 322 S.W.3d at 668 (citing Red
       Lion Broad. Co., 395 U.S. at 390, 89 S.Ct. at 1806, and Chaplinsky, 315 U.S. at
       571-72, 62 S.Ct. at 769).

Horhn v. State, 481 S.W.3d at 375. The court held that Section 32.51 does not implicate the

First Amendment and that Section 32.51 is not overbroad because it does not reach "a

substantial amount of constitutionally protected conduct.” Horhn v. State, 481 S.W.3d at

376.   The court further held because Section 32.51(b) does not implicate the First

Amendment, it is not a content-based restriction on speech. Id.

       We agree with the reasoning and analysis of the court in Horhn and conclude that

Section 32.51 is not overbroad and is not a content-based restriction on speech.

       Johnson next argues that Section 32.51 is void for vagueness. 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).

       Johnson specifically argues that Section 32.51 is vague “in its incorporation of an

all-encompassing ‘harm’ standard.” Section 32.51 (b) provides that person commits an


Ex parte Johnson                                                                         Page 5
offense if the person, “with the intent to harm or defraud another, obtains, possesses,

transfers, or uses an item of: (1) identifying information of another person without the

other person's consent.” TEX. PENAL CODE ANN. § 32.51 (b) (1) (West Supp. 2015). In the

Texas Penal Code, harm means “anything reasonably regarded as loss, disadvantage, or

injury, including harm to another person in whose welfare the person affected is

interested.” TEX. PENAL CODE ANN. § 1.07 (a) (25) (West Supp. 2015). Therefore, harm, as

used in Section 32.51, is defined, and the statute is not void for vagueness.

       Johnson further argues that Section 32.51 violates the Dormant Commerce Clause

of the United States Constitution because it unduly burdens interstate commerce by

attempting to place regulations on internet users everywhere. Johnson did not present

this argument to the trial court in his application for writ of habeas corpus; and, therefore,

this argument is not properly before us on appeal. TEX.R.APP.P. 33.1 (a).

       We find that the trial court did not err in denying Johnson relief as requested in

his application for writ of habeas corpus. We overrule Johnson’s issue on appeal.

       We affirm the trial court’s judgment.




                                                  AL SCOGGINS
                                                  Justice




Ex parte Johnson                                                                        Page 6
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 2, 2016
Do not publish
[OT06]




Ex parte Johnson                           Page 7
