Opinion issued August 11, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                  NOS. 01-16-00180-CR and 01-16-00181-CR
                            ———————————
                EX PARTE JUAN JOSE SANCHEZ, Appellant



                   On Appeal from the 268th District Court
                          Fort Bend County, Texas
            Trial Court Case Nos. 14-DCR-067551, 14-DCR-067552


                          MEMORANDUM OPINION

      In this appeal from the denial of his pretrial habeas petition, Juan Jose

Sanchez presents a facial challenge to the constitutionality of Section 32.51 of the

Texas Penal Code. We affirm.1




1
      We withdraw the opinion and judgment dated July 28, 2016 and issue this opinion
      and these judgments in their stead to include both appellate cause numbers.
                                     Background

      Sanchez was indicted on two counts of possession or use of identifying

information with the intent to harm or defraud another, under Section 32.51 of the

Penal Code. See TEX. PENAL CODE ANN. § 32.51 (West 2011 & Supp. 2015).

Sanchez moved to quash the indictments and applied for a writ of habeas corpus on

the ground that the statute is facially unconstitutional. The trial court denied relief.

Sanchez appeals the trial court’s denial of habeas relief. 2 See TEX. R. APP. P. 31.

Because Sanchez challenges the statute’s facial validity, we analyze the challenge

without regard to the specific facts of his cases. Ex parte Lo, 424 S.W.3d 10, 14

n.2 (Tex. Crim. App. 2013).

                                      Discussion

      Pursuant to Section 32.51(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:

          (1) identifying information of another person without the other
              person’s consent;
          (2) information concerning a deceased natural person, including a
              stillborn infant or fetus, that would be identifying information
              of that person were that person alive, if the item of information
              is obtained, possessed, transferred, or used without legal
              authorization; or
          (3) identifying information of a child younger than 18 years of age.



2
      We note also that the State has filed two new indictments alleging check forgery
      under separate cause numbers in the trial court.
                                           2
TEX. PENAL CODE ANN. § 32.51(b). The statute defines “identifying information”

to include an individual’s name, social security number, and date of birth. Id.

§ 32.51(a)(1).

      Sanchez challenges Section 32.51 on the ground that it violates the First

Amendment right to freedom of speech. He also contends that it criminalizes mere

thought, which he alleges violates the First and Eighth Amendments of the federal

constitution and article 1, section 19 of the Texas Constitution.3

      I.     Standard of Review

      Determining whether a statute is facially constitutional is a question of law

that we review de novo. Ex parte Lo, 424 S.W.3d at 14 (Tex. Crim. App. 2013);

Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). In our review, we “presume that the statute is valid and that the legislature

was neither unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d

39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see TEX. GOV’T CODE ANN

§ 311.021(1), (3) (West 2013); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.

App. 2002). If the statute may be construed in two different ways, and one

construction sustains the validity of the statute, we must use the construction that

sustains the statute’s validity. Maloney, 294 S.W.3d at 626. The party who


3
      Sanchez also contends that Section 32.51 violates the Dormant Commerce Clause,
      but waived that contention on appeal by failing to raise it first in the trial court.
      See TEX. R. APP. P. 33.1.
                                            3
challenges the statute bears the burden of establishing that it is unconstitutional.

See State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

      II.    Analysis

      In a similar challenge, our court upheld Section 32.51 against a claim of

constitutional overbreadth.    Horhn v. State, 481 S.W.3d 363, 366–67 (Tex.

App.―Houston [1st Dist.] 2015, pet. ref’d).         In Horhn, the defendant was

convicted under the statute for possessing names, dates of birth, and social security

numbers in the form of a stolen credit card and cell phone photographs of

computer spreadsheets. Id. Horhn challenged the statute’s constitutionality in a

motion to quash the indictment, in which he argued that Section 32.51 “is invalid

on its face because it’s overbroad and [] is a restriction on the First Amendment

right to free speech.” Id.

      We affirmed Horhn’s conviction, holding that the statute did not implicate

the First Amendment’s free speech protections. Id. at 375–76. As we noted, the

Court of Criminal Appeals has recognized that the First Amendment protects two

different kinds of conduct. See id. at 373 (citing Ex parte Thompson, 442 S.W.3d

325, 333–34 (Tex. Crim. App. 2014)). Conduct that is inherently expressive, such

as participating in a parade or publishing a novel, is presumptively protected by the

First Amendment. Ex parte Thompson, 442 S.W.3d at 334. Conduct that is not

inherently expressive implicates the First Amendment if (1) it was intended to


                                         4
convey a political message, and (2) this message would likely be understood by

those who viewed it. Id. (citing Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct.

2533, 2539 (1989)).       In Horhn, we rejected the defendant’s constitutional

challenge because the statute criminalized conduct that was “essentially

noncommunicative,” and thus it did not per se criminalize protected speech.

Horhn, 481 S.W.3d at 375 (citing Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim.

App. 2010)). To the extent that Section 32.51 could be applied to communicative

conduct, we found that such speech invaded the privacy interests of another person

in an essentially intolerable manner and thus was unprotected under First

Amendment jurisprudence. Id.; accord Scott, 322 S.W.3d at 668–69 (citing Cohen

v. California, 403 U.S. 15, 21, 91 S. Ct. 1780, 1786 (1971)).

      Sanchez asks that we overrule Horhn. He cites works of literature which

invoke or refer to a person’s name, and analogizes that these works are illegal uses

of a name as defined by the statute. Sanchez suggests that the statute criminalizes

the publication of a newspaper editorial or an investigative report that is critical of

a public figure.

      We rejected this premise in Horhn.           “Under the canons of statutory

construction, we are to construe a statute according to its plain language, unless the

language is ambiguous or the interpretation would lead to absurd results that the

legislature could not have intended.” Tapps v. State, 294 S.W.3d 175, 177 (Tex.


                                          5
Crim. App. 2009) (quoting Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim.

App. 2008)). We read the text of the statute in context, construing it “according to

the rules of grammar and common usage.” TEX. GOV’T CODE ANN. § 311.021

(West 2013); Tapps, 294 S.W.3d at 177. Section 32.51 criminalizes actions taken

with intent to harm or defraud. Considered within this context, the term “use”

does not embrace criticism of a person by name. See TEX. PENAL CODE ANN.

§ 32.51(b)(1); SMI Realty Mgmt. Corp. v. Underwriters at Lloyd’s, London, 179

S.W.3d 619, 625 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(observing that under the maxim of noscitur a sociis, the meaning of a word may

be determined by reference to the meaning of words associated with it).

      Following Horhn, we hold that Section 32.51(b) withstands a facial

challenge based on a violation of the First Amendment. See TEX. PENAL CODE

ANN. § 32.51; Ex parte Thompson, 442 S.W.3d at 334; Tapps, 294 S.W.3d at 177;

Horhn, 481 S.W.3d at 376.

      Sanchez next contends that Section 32.51, by forbidding “possession” of

identifying information, criminalizes knowledge of identifying information without

requiring any criminal act. Sanchez argues that punishment of knowledge alone

violates the First Amendment, the Eighth Amendment’s prohibition on cruel and

unusual punishment, and the Texas Constitution’s guarantee of due course of law.

See U.S. CONST. amends. I, VIII; TEX. CONST. art. I, § 19.


                                         6
      The State cannot criminalize thoughts. Goldberg v. State, 95 S.W.3d 345,

373 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Texas v. Johnson,

491 U.S. 397, 414, 109 S. Ct. 2533, 2544 (1989)). But when a statute can be

interpreted in two ways, one of which preserves its constitutionality, we apply the

interpretation that preserves it. Maloney v. State, 294 S.W.3d 613, 626 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).

      The Penal Code defines “possession” as “actual care, custody, or

management,” terms which suggest physical possession of tangible items. TEX.

PENAL CODE ANN. § 1.07(a)(39) (West 2011). Black’s Law Dictionary similarly

defines possession in terms that suggest control of physical items, referring to it as

“the exercise of dominion over property.” Possession, BLACK’S LAW DICTIONARY

(10th ed. 2014). Because the usual definition of the term assumes physical control,

we construe possession in this context to require physical control of identifying

information in written or recorded form.           See TEX. PENAL CODE ANN.

§§ 1.07(a)(39), 32.51; Maloney, 294 S.W.3d at 626; Goldberg, 95 S.W.3d at 373.

This construction comports with the general purpose of the Penal Code, which is to

deal with actually or potentially harmful conduct. See TEX. PENAL CODE ANN.

§ 1.02.

      Finally, Sanchez contends that Section 32.51 is unconstitutionally vague

because its “harm” standard provides insufficient notice as to what speech is


                                          7
prohibited. Due process requires that a criminal statute be specific enough to give

fair notice as to the activity that is criminal. See State v. Holcombe, 187 S.W.3d

496, 499 (Tex. Crim. App. 2006); Bynum v. State, 767 S.W.2d 769, 773 (Tex.

Crim. App. 1989).

      We apply a two-part test to determine if a criminal statute is

unconstitutionally vague. To overcome a vagueness challenge, a criminal statute

must define the offense (1) with sufficient specificity that ordinary people can

understand what actions are prohibited, and (2) in a manner that does not permit

arbitrary and discriminatory enforcement. See Holcombe, 187 S.W.3d at 499.

Either the lack of notice or lack of guidelines for law enforcement may constitute

an independent ground for finding a statute void for vagueness. Adley v. State, 718

S.W.2d 682, 685 (Tex. Crim. App. 1985).             But a statute need not be

mathematically precise; it need only give fair warning, in light of common

understanding and practices.     Rivera v. State, 363 S.W.3d 660, 672 (Tex.

App.―Houston [1st Dist.] 2011, no pet.).

      Words defined in dictionaries with meanings understood by a person of

ordinary intelligence are not vague or indefinite. Ex parte Morales, 212 S.W.3d

483, 499 (Tex. App.—Austin 2006, pet. ref’d) (citing Floyd v. State, 575 S.W.2d

21, 23 (Tex. Crim. App. 1978)). We read words in context, according to the rules

of grammar and common usage. See TEX. GOV’T CODE ANN. § 311.011(a). If a


                                        8
statute does not substantially implicate constitutionally protected conduct or

speech, it is valid unless it is impermissibly vague in all applications. Holcombe,

187 S.W.3d at 499 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 494–495, 102 S. Ct. 1186, 1191 (1982)).

      We have determined that Section 32.51 does not implicate constitutionally

protected speech. The statute is therefore valid unless it is unconstitutionally

vague in all applications. Flipside, 455 U.S. at 494–95, 102 S. Ct. at 1191;

Holcombe, 187 S.W.3d at 499. In its context within the statute, “harm or defraud”

provides sufficient notice to the public of the criminal penalty for misuse of

identifying information. See TEX. GOV’T CODE ANN. § 311.011(a); Holcombe, 187

S.W.3d at 499; see also, e.g., Ex parte Morales, 212 S.W.3d at 499; Harm,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003); cf. State v.

Florance, No. 05-07-00088-CR, 2007 WL 2460088, at *4–*5 (Tex. App.—Dallas

Aug. 31, 2007, pet. dism’d) (not designated for publication) (upholding criminal

statute against vagueness challenge to “intent to harm or defraud” language). We

hold that Sanchez has failed to demonstrate that Section 32.51(b) is

unconstitutional on its face. See Rosseau, 396 S.W.3d at 557; Florance, 2007 WL

2460088, at *4–*5; Holcombe, 187 S.W.3d at 499; Ex parte Morales, 212 S.W.3d

at 499; Curry, 186 S.W.3d at 42.




                                        9
                                     Conclusion

        We hold that the trial court did not err in denying Sanchez’s habeas petition.

We therefore affirm the order of the trial court. All pending motions are denied as

moot.




                                               Jane Bland
                                               Justice

Panel consists of Justices Higley, Bland, and Massengale.

Do not publish. See TEX. R. APP. P. 47.2(b).




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