 
 




                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00142-CR
                            ____________________

                  MICHAEL KELVIN SWENSON, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 9th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-05-05112-CR
________________________________________________________________________

                          MEMORANDUM OPINION

      Michael Kelvin Swenson challenged his indictment for online solicitation of

a child by filing a pre-trial application for a writ of habeas corpus. The trial court

denied the application without a hearing. On the same day that the trial court denied

the habeas application, the trial court accepted Swenson’s guilty plea pursuant to a

plea bargain agreement and sentenced Swenson to two years of incarceration.

Swenson appealed from the judgment of conviction, and the trial court certified that



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this is a plea-bargain case but Swenson had the right to appeal an issue that was ruled

on before trial.

              In three issues, Swenson makes a facial challenge to the constitutionality of

subsections (c) and (d) of the pre-2015 version of the online solicitation statute. See

generally Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, sec. 33.021, 2005

Tex. Gen. Laws 4049, 4050, amended by Act of May 21, 2007, 80th Leg., R.S., ch.

610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68, amended by Act of May 27, 2007,

80th Leg., R.S., ch. 1291, § 7, 2007 Tex. Gen. Laws 4344, 4350 (amended 2015)

(current version at Tex. Penal Code Ann. § 33.021 (West Supp. 2016)).1 He argues

the statute is overbroad in violation of the First Amendment, unconstitutionally

vague under the Fourteenth Amendment, and it violates the dormant Commerce

Clause.

              Two cases decided by the Court of Criminal Appeals after the briefs were filed

in this appeal demonstrate that the trial court did not err in denying Swenson’s pre-

trial habeas application. In Ex parte Ingram, the Court of Criminal Appeals held that

claims based on the anti-defensive issues, including a claim that the statute is

unconstitutionally vague because section 33.021(d) eliminates the intent element


                                                            
              1
          All references to Section 33.021 in this Opinion refer to the pre-2015
solicitation statute.
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from section 33.021(c), are not cognizable in a pre-trial habeas application because

it does not become law applicable to the case until it is raised by the evidence at trial.

See No. PD-0578-16, 2017 WL 2799980, at *3–4 (Tex. Crim. App. June 28, 2017).

Additionally, Ingram held that section 33.021(c) was neither unconstitutionally

overbroad nor violative of the Commerce Clause. Id. at *7–12. In Leax v. State, the

Court of Criminal Appeals held that the appellant’s facial constitutional challenges

failed on appeal for the same reason as they failed in pre-trial habeas proceedings in

Ingram. See Leax v. State, No. PD-0517-16, 2017 WL 4675411, at *2 (Tex. Crim.

App. Oct. 18, 2017). Furthermore, the record was insufficiently developed on appeal

for Leax to show that any of the anti-defensive provisions of section 33.021(d) would

have been invoked against him. Id. Like Ingram and Leax, Swenson did not develop

a record concerning whether he intended for the meeting to occur or he was engaged

in fantasy play at the time he committed the offense.

      Furthermore, we have previously held that section 33.021(c) is not

unconstitutionally vague or overbroad and that the statute has only an incidental

effect on interstate commerce and does not violate the Commerce Clause. State v.

Paquette, 487 S.W.3d 286, 288–91 (Tex. App.—Beaumont 2016, no pet.). We

decline to revisit our holding in that case. We overrule issues one through three and

affirm the trial court’s judgment.

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      AFFIRMED.


                                           ________________________________
                                                   CHARLES KREGER
                                                         Justice

Submitted on August 15, 2017
Opinion Delivered December 6, 2017
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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