     Case: 12-10435       Document: 00512248465         Page: 1     Date Filed: 05/21/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 21, 2013

                                       No. 12-10435                        Lyle W. Cayce
                                                                                Clerk

STEVEN GLEN SMITH,

                                                  Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       A jury convicted Steven Glen Smith (“Smith”) of sexual assault under
section 22.011 of the Texas Penal Code.                   That provision criminalizes
“intentionally or knowingly[] . . . caus[ing] the penetration of the . . . sexual
organ of another person by any means, without that person’s consent.” TEX.
PENAL CODE § 22.011(a)(1)(A). It also defines the circumstances under which
that sexual activity occurs without the other person’s consent, including—and
as applicable here—when “the actor is a clergyman who causes the other person

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-10435     Document: 00512248465    Page: 2   Date Filed: 05/21/2013



                                 No. 12-10435

to submit or participate by exploiting the other person’s emotional dependency
on the clergyman in the clergyman’s professional character as spiritual adviser.”
Id. § 22.011(b)(10).
      On direct appeal, Smith’s court-appointed counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and Smith responded with a pro se
brief raising several issues, including a challenge to the constitutionality of
section 22.011(b)(10). The Texas court of appeals affirmed the conviction, and
the Texas Court of Criminal Appeals (“TCCA”) denied Smith’s petition for
discretionary review. Smith then sought state post-conviction relief, adding a
claim of ineffective assistance of appellate counsel for failure to identify any
nonfrivolous issue on direct appeal. The TCCA ultimately denied Smith relief,
and Smith filed a federal habeas petition. Although the district court denied
relief, it granted Smith a certificate of appealability (“COA”) limited to two
grounds: (1) the constitutionality of section 22.011(b)(10); and (2) ineffective
assistance of appellate counsel for failure to identify any nonfrivolous issue on
appeal and instead filing an Anders brief.
      On review of the parties’ arguments and given the deferential standard of
review required by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we cannot conclude that the TCCA rendered, with respect to any of
Smith’s claims, “a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Accordingly, we AFFIRM
the judgment of the district court, denying Smith habeas relief.
                               BACKGROUND
                                       A.
      Smith was convicted under section 22.011(a)(1)(A) and (b)(10) of the Texas
Penal Code for “intentionally and knowingly caus[ing] penetration of the female
sexual organ of CHRISTY DOWNEY” (“Downey”) without Downey’s consent

                                       2
    Case: 12-10435     Document: 00512248465    Page: 3   Date Filed: 05/21/2013



                                 No. 12-10435

because Smith was a “clergyman [who] caused [Downey] to submit and
participate by exploiting [Downey’s] emotional dependency on [Smith] in
[Smith’s] professional character as spiritual advisor.” See TEX. PENAL CODE §
22.011(a)(1)(A), (b)(10).
      Smith founded the Family of God Church of the Bible. Smith was not an
ordained minister, and the church met only in its members’ homes. Smith was
the church’s only pastor, he “led every prayer session,” and he performed
marriages and funerals. Moreover,
      [t]here were never any [other leaders or pastors]. From the very
      beginning until the end of that church [Smith] was the only one to
      teach. He was the only one to authorize any special ministries. He
      was the only one to author any literature that was produced by the
      church.
The members of the church “relied on [Smith] heavily” for counseling, and Smith
“warn[ed]” them “that he did not want [them] counseling each other, that he was
the one who had the broadest understanding of all [their] lives.”
      Downey belonged to the church, and her counseling relationship with
Smith began soon after she joined. Smith became “very special” to Downey
because of what she believed was his desire “to see [each church member] grow
spiritually and become spiritually mature.” She “shared with him from the
deepest part of [her] heart.” With Smith, Downey discussed: (1) issues with her
self esteem resulting from her “very manipulative relationship” with her father
“where he would berate [her] quite a bit emotionally”; (2) her father’s 1997
suicide; and (3) her grandfather’s increasingly serious diabetes complications
starting in 1999.
      In 1999, two years after her father’s suicide and while her grandfather was
dying from diabetes, Downey suffered from depression and was “emotionally
depleted.” Smith’s advice following her father’s suicide and for the two years
following was “one of the biggest things that connected me to him in my spiritual


                                       3
    Case: 12-10435     Document: 00512248465      Page: 4    Date Filed: 05/21/2013



                                  No. 12-10435

life as well as emotionally.” Downey became “very dependent on [Smith’s]
counsel.”
      Her meetings with Smith were “very spiritual in nature,” and Smith was
her “only spiritual advisor.” Their meetings included prayer, and, because
Downey was missing church meetings due to emotional issues and family
obligations, Smith would recap what “he had taught about that day” or “specific
prayer requests people had mentioned.”
      One night, Smith called Downey from the parking lot of her apartment to
say that he was coming over to pray. The two talked about her grandfather, her
depression, and what happened during a church meeting that she had missed.
Then Smith told Downey that he was suicidal and said that he was having issues
with his marriage. Downey testified about the effect this had on her:
      It had only been two years and three months prior to that that my
      dad had done that and it very much evoked a fear in my heart. It
      also just made me feel extremely anxious and I did not know how to
      cope with that. . . . [I]t linked me back to my dad when my sister
      and I had found out. . . . It was very traumatic.
      Smith and Downey began hugging and praying on the couch, which often
happened during counseling sessions “when it was very difficult on [her]
emotionally.” Smith then asked Downey “to lay on top of him,” and she complied
because she “was very emotionally distraught.” “[W]hile [she] was laying on top
of him [she] felt his penis get erect,” and, at that point, Smith “asked [her] to go
get a towel and so [she] did . . . . [b]ecause he told [her] to.” When Downey “came
back into the room [Smith] had unzipped his pants and his penis was sticking
out of his pants. . . . And [she] masturbated him to ejaculation with [her] hand”
because she “felt obligated to do that emotionally.”
      There were five sexual encounters between Smith and Downey in total,
with each encounter following a similar pattern. Smith would call Downey,
usually from the parking lot of her apartment, saying that he wanted to come


                                         4
     Case: 12-10435         Document: 00512248465        Page: 5     Date Filed: 05/21/2013



                                       No. 12-10435

over and pray with her, and he would go to her apartment. The two would talk
about church meetings and Downey’s grandfather, which was “a pretty
emotional subject,” and Downey would cry most of the time. And then Smith
would mention his own suicidal thoughts.
       During two of the five encounters, Smith vaginally penetrated Downey.
After the first time, Smith told Downey “how precious it was to his heart that
[she] had let him be so intimate with [her] soul” and said “the Lord had literally
used [her] to save his life.” Downey “just felt numb.” Downey described the
second time:
       I began crying silently. I just asked the Lord to help me to know
       how to cope with this because I could not help him emotionally. I
       was depleted. . . . [H]e was using me sexually because he was
       suicidal, even though he knew how much was going on in my life
       and how vulnerable I was. And I just did not understand how to tell
       him no.
Downey testified that she engaged in the sexual activity with Smith because of
her emotional dependency on him and further stated that “emotionally I could
not stop” the sexual encounters with Smith.
       Pursuant to Rule 404(b) of the Texas Rules of Evidence,1 the State
presented testimony from two other women, Kendra McGarrahan and Nina
Treat. Both women testified that Smith engaged in sexual activity with them
and that Smith followed a pattern similar to the one he followed with Downey:



       1
           Rule 404(b) provides:
       Evidence of other crimes, wrongs or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however,
       be admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident,
       provided that upon timely request by the accused in a criminal case, reasonable
       notice is given in advance of trial of intent to introduce in the State’s
       case-in-chief such evidence other than that arising in the same transaction.
TEX. R. EVID. 404(b).

                                              5
      Case: 12-10435    Document: 00512248465     Page: 6   Date Filed: 05/21/2013



                                   No. 12-10435

making the women emotionally dependent on him and then exploiting that
dependency for sexual gain.
                                         B.
        On September 29, 2005, a Dallas County jury convicted Smith of sexual
assault. At the trial, Michael Gottlieb (“Gottlieb”), a forensic psychologist,
testified about sexual misconduct by professionals and the power dynamics and
emotional dependency that can develop between professionals and their patients,
clients, and advisees. Gottlieb testified that a clergyman can have “power over
our emotional and spiritual lives. If we come to them with a dilemma we expect
them to diagnose our spiritual problems and to help us find a way to lead the
kind of moral life . . . .” In particular, he testified about power being important
to the way in which emotional dependency develops. Specifically as to Downey,
Gottlieb testified that she was “[e]xtreme[ly]” emotionally dependent on Smith
and that she engaged in sexual activity with Smith because he exploited this
dependence on him as her spiritual adviser. He observed that by revealing his
own problems to Downey, Smith would make her feel even more dependent. The
jury sentenced Smith to a ten-year term of imprisonment and assessed a $10,000
fine.
        On direct appeal, Smith’s appointed counsel did not file a merits brief and
instead filed an Anders brief, asserting that there were no nonfrivolous issues
presented on appeal. See Smith v. State, No. 05-06-00183-CR, 2007 WL 642577,
at *1 (Tex. App. Mar. 5, 2007). In response, Smith filed a pro se brief raising
several issues. See id. The Texas court of appeals, however, affirmed, and, on
August 22, 2007, the TCCA denied Smith’s petition for discretionary review. See
id.
        Through new counsel, Smith filed an application for a writ of habeas
corpus in state court. The trial court entered agreed findings of fact stating that
Smith received ineffective assistance of counsel with respect to his appellate

                                         6
    Case: 12-10435     Document: 00512248465     Page: 7     Date Filed: 05/21/2013



                                  No. 12-10435

representation. Initially, the TCCA directed the trial court to make further
findings on Smith’s ineffective-assistance-of-counsel claim with respect to both
his trial counsel and his appellate counsel. However, because the findings made
by the trial court failed to address the performance of Smith’s trial counsel, the
TCCA again remanded for additional findings.               Before receiving these
supplemental findings, though, the TCCA denied Smith’s habeas application
based on the court’s “independent review of the affidavits from counsel as well
as the entire record.” Ex Parte Smith, No. WR-71,424-01, 2010 WL 456875, at
*1 (Tex. Crim. App. Feb. 10, 2010). Specifically, the TCCA reasoned that Smith
failed to “meet his burden to show that he received ineffective assistance of
counsel at any stage of his proceedings.” Id. (citing Strickland v. Washington,
466 U.S. 668, 687 (1984), and Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.
Crim. App. 1984)).     The court did not discuss Smith’s challenge to the
constitutionality of section 22.011(b)(10) nor did it provide further explanation
with respect to Smith’s ineffective-assistance-of-counsel claim. See id.
      Smith subsequently filed a federal habeas petition. A magistrate judge
recommended denying Smith’s petition, and the district court agreed, denying
Smith relief. Smith unsuccessfully moved to alter or amend the district court’s
judgment and filed a timely notice of appeal. However, Smith successfully
moved for a COA limited to a challenge to the constitutionality of section
22.011(b)(10) and a claim of ineffective assistance of Smith’s court-appointed
appellate counsel on direct appeal.
                          STANDARD OF REVIEW
      Under AEDPA,
            [a]n application for a writ of habeas corpus on behalf of a
      person in custody pursuant to the judgment of a State court shall
      not be granted with respect to any claim that was adjudicated on
      the merits in State court proceedings unless the adjudication of the
      claim—


                                        7
    Case: 12-10435      Document: 00512248465      Page: 8    Date Filed: 05/21/2013



                                   No. 12-10435

             (1)   resulted in a decision that was contrary to, or involved
                   an unreasonable application of, clearly established
                   Federal law, as determined by the Supreme Court of
                   the United States; or
             (2)   resulted in a decision that was based on an
                   unreasonable determination of the facts in light of the
                   evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “By its terms, § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§
2254(d)(1) and (d)(2).” Harrington v. Richter, 131 S. Ct. 770, 784 (2011). “When
a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to
the contrary.” Id. at 784-85. This is true particularly in light of the fact that “§
2254(d) does not require a state court to give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Id. at 785.
      “Where,” as here, “a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there
was no reasonable basis for the state court to deny relief.” Id. at 784. To assess
whether a petitioner has made this showing, the “habeas court must determine
what arguments or theories . . . could have supported the state court’s decision;
and then it must ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Id. at 786. “If there is any objectively reasonable basis
on which the state court could have denied relief, AEDPA demands that [the
habeas court] respect its decision to do so.” Amos v. Thornton, 646 F.3d 199, 205
(5th Cir. 2011) (per curiam). Section 2254(d)’s relitigation bar is thus “a ‘difficult
to meet’ and ‘highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.’”


                                          8
    Case: 12-10435     Document: 00512248465      Page: 9    Date Filed: 05/21/2013



                                  No. 12-10435

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citation omitted).
Furthermore, “[t]he petitioner carries the burden of proof.” Id.
      Section 2254(d)(1)’s reference to clearly established law “refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). Furthermore, “[u]nder the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413. That said, “an unreasonable application of federal law is
different from an incorrect application of federal law.” Id. at 410. “[T]he state
court’s decision must have been more than incorrect or erroneous.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003). Rather, the decision must be “so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 131
S. Ct. at 786-87. “[E]ven a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. at 786.
                                 DISCUSSION
      The district court granted Smith a COA with respect to two issues: (1) the
constitutionality of section 22.011(b)(10); and (2) the effectiveness of Smith’s
court-appointed appellate counsel for failing to identify any nonfrivolous issue
on appeal and instead filing an Anders brief. With respect to the first issue,
Smith claims that section 22.011(b)(10) is unconstitutional because it (1) is
overbroad because it criminalizes constitutionally protected sexual activity
under Lawrence v. Texas, 539 U.S. 558 (2003); (2) is void for vagueness because
the terms “emotional dependency” and “clergyman” do not provide a person of
ordinary intelligence fair notice of what is prohibited or otherwise lacks
sufficient clarity to avoid the risk of discriminatory enforcement; and (3) violates
the Establishment Clause by fostering excessive government entanglement with

                                         9
    Case: 12-10435    Document: 00512248465      Page: 10    Date Filed: 05/21/2013



                                  No. 12-10435

religion under Lemon v. Kurtzman, 403 U.S. 602 (1971). With respect to the
second issue, Smith claims that his court-appointed counsel on direct appeal was
ineffective under Strickland v. Washington because he failed to identify three
nonfrivolous issues on appeal, namely that: (1) section 22.011(b)(10) is
unconstitutional; (2) the evidence adduced at trial was insufficient to convict
him; and (3) the trial court erroneously sustained the State’s objection to Smith’s
counsel’s attempt to define “clergyman” as requiring ordination.
      On review of the parties’ arguments and given AEDPA’s deferential
standard of review, we cannot say that the TCCA rendered, with respect to any
of Smith’s claims, “a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Accordingly, we AFFIRM
the judgment of the district court, denying Smith habeas relief.
                                        A.
                                        1.
      “[T]he overbreadth doctrine enables litigants ‘to challenge a statute not
because their own rights of free expression are violated, but because of a judicial
prediction or assumption that the statute’s very existence may cause others not
before the court to refrain from constitutionally protected speech or expression.’”
Hill v. Colorado, 530 U.S. 703, 731-32 (2000) (quoting Broadrick v. Oklahoma,
413 U.S. 601, 612 (1973)). “[T]he allowance of a facial overbreadth challenge to
a statute is an exception to the traditional rule that ‘a person to whom a statute
may constitutionally be applied may not challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others in situations not
before the Court.’” L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S.
32, 39 (1999) (quoting New York v. Ferber, 458 U.S. 747, 767 (1982)). To
evaluate whether a statute is overbroad, the court must “determine whether the
enactment reaches a substantial amount of constitutionally protected conduct.”

                                        10
    Case: 12-10435    Document: 00512248465       Page: 11   Date Filed: 05/21/2013



                                  No. 12-10435

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
(1982) (emphasis added). On this basis, Smith argues that section 22.011(b)(10)
is unconstitutionally overbroad because it reaches a substantial amount of
constitutionally protected sexual conduct under Lawrence v. Texas.            As a
threshold matter, we must consider whether Smith may take advantage of
overbreadth analysis under the circumstances of this case.
      The Magistrate Judge rejected Smith’s overbreadth argument, reasoning
that overbreadth doctrine is available only with respect to First Amendment
challenges. See United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009) (stating
that “overbreadth doctrine is applicable only to First Amendment challenges”).
In response, Smith asserts that freedom of association, in addition to free speech
and expression, may serve as a legitimate basis for bringing an overbreadth
challenge. However, Smith, in his federal habeas petition, never asserted his
overbreadth challenge on the basis of freedom of association. His challenge,
then, is predicated on substantive due process implicated by Lawrence.
      The Supreme Court has said that “[r]arely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not specifically addressed
to speech or to conduct necessarily associated with speech (such as picketing or
demonstrating).” Virginia v. Hicks, 539 U.S. 123, 124 (2003). That said,
although the Supreme Court “[has] recognized the validity of facial attacks
alleging overbreadth . . . in relatively few settings,” it has done so in situations
outside the free-speech context, including right-to-travel cases, challenges to
legislation enacted under Section 5 of the Fourteenth Amendment, and abortion
cases. See Sabri v. United States, 541 U.S. 600, 609-10 (2004).
      It may be that the concerns animating overbreadth doctrine—namely, that
section 22.011(b)(10)’s mere existence may lead individuals to refrain from
engaging in constitutionally protected conduct—are also implicated by Smith’s
putative overbreadth challenge. See Hill, 530 U.S. at 731-32; see also David H.

                                        11
    Case: 12-10435     Document: 00512248465      Page: 12    Date Filed: 05/21/2013



                                   No. 12-10435

Gans, Strategic Facial Challenges, 85 B.U. L. REV. 1333, 1338 (2005) (reasoning
that among the “strategic bases for facial invalidation that recur throughout
constitutional adjudication” is “a chilling effect theory, featured not only in First
Amendment overbreadth doctrine, but also in privacy[] . . . cases [such as those
involving abortion]”).    Given that abortion cases and Lawrence are both
predicated on a substantive due process right to privacy, there is some merit to
Smith’s argument that the kind of facial challenge he seeks to assert triggers
overbreadth’s protection. However, even assuming, based on an analogy to
overbreadth challenges the Supreme Court has permitted in abortion cases, that
Smith may bring an overbreadth challenge predicated on substantive due
process, we are convinced that it would not have been unreasonable for the
TCCA to have interpreted Lawrence v. Texas in a way that foreclosed Smith’s
argument.
      Smith argues that, based on Lawrence, individuals have a constitutionally
protected right to engage in sexual activity under the Due Process Clause of the
Fourteenth Amendment. Smith asserts that section 22.011(b)(10) negates
consent as a matter of law to what is constitutionally protected conduct, for
instance, a clergymember advising his or her spouse on the Bible. Thus, Smith
reasons, section 22.011(b)(10) reaches a substantial amount of constitutionally
protected conduct.
      Lawrence invalidated a “Texas statute making it a crime for two persons
of the same sex to engage in certain intimate sexual conduct.” 539 U.S. at 562,
578. The Court emphasized what the case was, and was not, about:
      The present case does not involve minors. It does not involve
      persons who might be injured or coerced or who are situated in
      relationships where consent might not easily be refused. It does not
      involve public conduct or prostitution. It does not involve whether
      the government must give formal recognition to any relationship
      that homosexual persons seek to enter. The case does involve two


                                         12
    Case: 12-10435     Document: 00512248465      Page: 13    Date Filed: 05/21/2013



                                   No. 12-10435

      adults who, with full and mutual consent from each other, engaged
      in sexual practices common to a homosexual lifestyle.
Id. at 578 (emphasis added). On this basis, we have explained that “the
[Lawrence] Court concluded that the sodomy law violated the substantive due
process right to engage in consensual intimate conduct in the home free from
government intrusion.” Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 744
(5th Cir. 2008) (emphasis added). Lawrence’s focus on consensuality dooms
Smith’s overbreadth challenge.
      First, courts interpreting Lawrence have declined to interpret it as
establishing a right to engage in all sexual activity. See, e.g., Seegmiller v.
Laverkin City, 528 F.3d 762, 770 (10th Cir. 2008) (“[T]he Court has never
endorsed an all-encompassing right to sexual privacy under the rubric of
substantive due process.”); Cook v. Gates, 528 F.3d 42, 56 (1st Cir. 2008)
(“Lawrence recognized only a narrowly defined liberty interest in adult
consensual sexual intimacy in the confines of one’s home and one’s own private
life.”); Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1236 (11th Cir. 2004) (“[T]he
Court has never indicated that the mere fact that an activity is sexual and
private entitles it to protection as a fundamental right.”). Second, several courts
have determined that Lawrence does not disturb criminal provisions designed
to ensure that sexual relationships are consensual. See, e.g., Lowe v. Swanson,
663 F.3d 258, 264 (6th Cir. 2011) (citing Lawrence, upholding a conviction based
on the defendant’s sex with his twenty-two-year-old stepdaughter, and stating
that “[u]nlike sexual relationships between unrelated same-sex adults, the
stepparent-stepchild relationship is the kind of relationship in which a person
might be injured or coerced or where consent might not easily be refused,
regardless of age, because of the inherent influence of the stepparent over the
stepchild”); Anderson v. Morrow, 371 F.3d 1027, 1029, 1033 (9th Cir. 2004)
(rejecting a vagueness challenge to a statute that prohibited sex with any person


                                         13
    Case: 12-10435    Document: 00512248465      Page: 14    Date Filed: 05/21/2013



                                  No. 12-10435

“incapable of consent by reason of mental defect” and stating that Lawrence
“does not affect a state’s legitimate interest and indeed, duty, to interpose when
consent is in doubt”); Loomis v. United States, 68 Fed. Cl. 503, 519 (2005) (“[T]he
nature of the relationship between plaintiff [a lieutenant colonel] and the
[private first class], while not directly within a chain of command, is such that
consent might not easily be refused and thus it is outside of the liberty interest
protected by Lawrence.”).      And although § 2254(d)(1) refers to “clearly
established Federal law, as determined by the Supreme Court,” that several
state courts have likewise rejected due process challenges to criminal provisions
similar to section 22.011(b)(10), see, e.g., Talbert v. State, 239 S.W.3d 504, 511
(Ark. 2006) (citing Lawrence and holding that a clergymember “has no liberty
interest to engage in sexual activity by abusing his position of trust and
authority”); State v. Bussman, 741 N.W.2d 79, 84 n.2 (Minn. 2007) (“Members
of the clergy have neither a First Amendment nor a liberty interest in sexual
activity gained through exploitation of the clergy-counselee relationship.”),
suggests that a reading of Lawrence foreclosing Smith’s overbreadth argument
would not have been unreasonable.
      Given this, we cannot say that it would have been unreasonable for the
TCCA to have concluded that section 22.011(b)(10) reaches only sexual activity
rendered nonconsensual based on a clergymember’s abuse of his position and,
consequently, that the statute does not implicate any protected sexual conduct
and there is no danger of overbreadth under Lawrence, see Hersh v. United
States ex rel. Mukasey, 553 F.3d 743, 762 n.23 (5th Cir. 2008) (reasoning that in
cases not involving the First Amendment, “a statute is overbroad if it is
‘unconstitutional in all of its applications’” (quoting Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008))), or that any overbreadth is




                                        14
    Case: 12-10435       Document: 00512248465          Page: 15     Date Filed: 05/21/2013



                                       No. 12-10435

insufficiently substantial to warrant relief, see United States v. Williams, 553
U.S. 285, 292 (2008); Hicks, 539 U.S. at 122.2
                                              2.
       “Vagueness doctrine is an outgrowth not of the First Amendment, but of
the Due Process Clause of the Fifth Amendment.” Williams, 553 U.S. at 304.
“A conviction fails to comport with due process if the statute under which it is
obtained fails to provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” Id. (citing Hill, 530 U.S. at 732). However,
“perfect clarity and precise guidance have never been required.” Ward v. Rock
Against Racism, 491 U.S. 781, 794 (1989).3
       In Williams, the Court held that a statute criminalizing knowingly
“advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] . . . any
material or purported material in a manner that reflects the belief, or that is
intended to cause another to believe, that the material or purported material is,


       2
         We question Smith’s reading of Hornbuckle v. State, Nos. 2-06-316-CR, 2-06-317-CR,
2-06-318-CR, 2008 WL 2168007 (Tex. App. 2008), the only Texas court of appeals case
addressing section 22.011(b)(10), as holding that the statute does not require proof of
exploitation. This reading is contrary to the statute’s text, see TEX. PENAL CODE §
22.011(b)(10) (requiring “exploit[ation]”), divorced from Hornbuckle’s context, see Hornbuckle,
2008 WL 2168007, at *4 (noting that the complainant “testified that [the defendant] was her
bishop and that he caused her to submit to his sexual advances by exploiting her emotional
dependence on him as her spiritual advisor”) (emphasis added), and at any rate not definitive
for us, see Packard v. OCA, Inc., 624 F.3d 726, 729 (5th Cir. 2010) (“The decisions of Texas
intermediate appellate courts may provide guidance, but are not controlling.”), or for that
matter for the TCCA as the highest criminal court in Texas.
       3
         Smith asserts both a facial and an as-applied challenge based on what he claims is
the indeterminacy of the terms “clergyman” and “emotional dependency.” However, “[a]
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.” Hoffman, 455 U.S. at 495. On
review of the facts of this case, we are persuaded that it would not have been an unreasonable
application of Hoffman for the TCCA to have concluded that Smith engaged in conduct clearly
proscribed by section 22.011(b)(10) and, therefore, to have entertained only Smith’s as-applied
vagueness challenge. We therefore do the same.

                                              15
    Case: 12-10435    Document: 00512248465       Page: 16   Date Filed: 05/21/2013



                                   No. 12-10435

or contains,” child pornography was not unconstitutionally vague. 553 U.S. at
289-90, 305-07 (emphasis added). The defendant argued that the phrase “in a
manner that reflects the belief” or “that is intended to cause another to believe”
failed to provide a person of ordinary intelligence fair notice of what the statute
proscribed and otherwise lacked sufficient standards to avoid the danger of
discriminatory enforcement. The Court, however, disagreed, rejecting both
assertions.
      The Court criticized the court of appeals—which had concluded that the
statute was unconstitutionally vague—for posing supposedly problematic
hypotheticals and reasoning that the possibility of close cases renders a statute
vague. Id. at 305. “Close cases can be imagined under virtually any statute,”
the Court said. Id. at 306. “The problem that poses is addressed, not by the
doctrine of vagueness, but by the requirement of proof beyond a reasonable
doubt.” Id. (citing In re Winship, 397 U.S. 358, 363 (1970)). The Court went on:
      What renders a statute vague is not the possibility that it will
      sometimes be difficult to determine whether the incriminating fact
      it establishes has been proved; but rather the indeterminacy of
      precisely what that fact is. Thus, we have struck down statutes that
      tied criminal culpability to whether the defendant's conduct was
      “annoying” or “indecent”—wholly subjective judgments without
      statutory definitions, narrowing context, or settled legal meanings.
Id. (citing Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and Reno v. ACLU, 521
U.S. 844, 870-71 & n.35 (1997)).
      The Williams Court concluded that the statutory provisions at issue did
not render the law unconstitutionally vague or indeterminate for the following
reasons:
      The statute requires that the defendant hold, and make a statement
      that reflects, the belief that the material is child pornography; or
      that he communicate in a manner intended to cause another so to
      believe. Those are clear questions of fact. Whether someone held
      a belief or had an intent is a true-or-false determination, not a


                                        16
    Case: 12-10435       Document: 00512248465     Page: 17   Date Filed: 05/21/2013



                                    No. 12-10435

         subjective judgment such as whether conduct is “annoying” or
         “indecent.” Similarly true or false is the determination whether a
         particular formulation reflects a belief that material or purported
         material is child pornography. To be sure, it may be difficult in
         some cases to determine whether these clear requirements have
         been met. But courts and juries every day pass upon knowledge,
         belief and intent—the state of men’s minds—having before them no
         more than evidence of their words and conduct, from which, in
         ordinary human experience, mental condition may be inferred. And
         they similarly pass every day upon the reasonable import of a
         defendant’s statements—whether, for example, they fairly convey
         a false representation or a threat of physical injury. Thus, the
         [court of appeals]’s contention that [the statute] gives law
         enforcement officials “virtually unfettered discretion” has no merit.
         No more here than in the case of laws against fraud, conspiracy, or
         solicitation.
Id. at 306-07 (citations omitted) (internal quotation marks omitted).
         Applying the foregoing vagueness-doctrine principles to the present case,
we conclude that it would not have been unreasonable for the TCCA to have
determined that section 22.011(b)(10) is not unconstitutionally vague or
indeterminate. The statute requires that the defendant acted as a clergymember
who knowingly caused his victim to submit or participate in sexual activity by
exploiting the victim’s emotional dependency on him in his professional character
as the victim’s spiritual adviser. See TEX. PENAL CODE § 22.011(b)(10). As with
the statute at issue in Williams, the relevant inquiry involves “clear questions of
fact.”     Williams, 553 U.S. at 306.          Whether the defendant acted as a
clergymember and whether he knowingly exploited the victim’s emotional
dependancy on him in his professional character as spiritual adviser are true-or-
false determinations, rather than subjective judgments such as whether conduct
is considered “annoying” or “indecent” by a particular complainant. Id. “To be
sure, it may be difficult in some cases to determine whether these clear
requirements have been met.          But courts and juries every day pass upon
knowledge, belief and intent—the state of men’s minds—having before them no

                                          17
   Case: 12-10435     Document: 00512248465      Page: 18   Date Filed: 05/21/2013



                                  No. 12-10435

more than evidence of their words and conduct, from which, in ordinary human
experience, mental condition may be inferred.” Id. (internal quotation marks
omitted). Based on Williams, the TCCA could have reasonably concluded that
determining whether someone acted as a clergyman who knowingly exploited the
victim’s emotional dependency on him in his professional character as spiritual
adviser does not implicate either vagueness doctrine’s fair notice concerns or its
selective enforcement concerns. See id. at 304. Accordingly, we cannot say that
it would have been unreasonable for the TCCA to have determined that section
22.011(b)(10) clearly proscribed Smith’s conduct, rejected his as-applied
challenge, and concluded that the terms “clergyman” and “emotional dependency”
were not impermissibly vague. See 28 U.S.C. § 2254(d)(1); Williams, 553 U.S. at
304-07; Hoffman, 455 U.S. at 495.
                                        3.
      The Establishment Clause provides that “Congress shall make no law
respecting an establishment of religion.” U.S. CONST. amend I. In Lemon v.
Kurtzman, the Supreme Court developed a three-part test to identify violations
of that Clause. See 403 U.S. at 612-13. Under this test, “[f]irst, the statute must
have a secular legislative purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion; finally, the statute must not
foster ‘an excessive government entanglement with religion.’”         Id. (citation
omitted). With respect to Lemon’s third prong, it bears emphasizing that the
“[e]ntanglement must be ‘excessive’ before it runs afoul of the Establishment
Clause.”   Agostini v. Felton, 521 U.S. 203, 233 (1997).         “[S]ome level of
involvement between” church and state is permissible. See id.
      Generally speaking (and notwithstanding AEDPA’s added layer of
deference), a party asserting an Establishment Clause violation under the Lemon
test need only show that the challenged state action fails one of Lemon’s three
prongs. See Comer v. Scott, 610 F.3d 929, 934 (5th Cir. 2010). In this case, Smith

                                        18
   Case: 12-10435     Document: 00512248465        Page: 19   Date Filed: 05/21/2013



                                  No. 12-10435

concedes that section 22.011(b)(10) both has a secular purpose and neither
advances nor inhibits religion.       Therefore, Smith’s challenge to section
22.011(b)(10) focuses on Lemon’s third prong—whether the statute fosters
excessive government entanglement with religion.
      Smith first argues that section 22.011(b)(10) fosters excessive entanglement
because it lacks any secular standard and instead proscribes certain conduct by
“expressly incorporating” religious doctrine. Smith does not, however, elaborate
on how the statute incorporates religious doctrine, particularly given that section
22.011(b)(10) defines lack of consent as a function of exploited emotional
dependency and without reference to any particular religious doctrine. See TEX.
PENAL CODE § 22.011(b)(10). Moreover, in light of the statute’s other subsections,
subsection (b)(10) appears to be less concerned with religious doctrine than it is
with impermissible exploitation of uneven power dynamics. Compare id. §
22.011(b)(10) (clergymember), with id. § 22.011(b)(8) (public servant), and id. §
22.011(b)(9)   (mental-health-services       or   health-care-services      provider).
Accordingly, it would not have been unreasonable, under Lemon, had the TCCA
concluded that section 22.011(b)(10)’s inquiry, as the State puts it, “no more
plunges the State into religious affairs than paragraph (b)(9) thrusts it into
medical practice” and thus does not amount to excessive government
entanglement with religion.
      Smith    next   argues   that   section     22.011(b)(10)   fosters   excessive
entanglement because the statute establishes a legislative presumption that
there can be no consent between a member of the clergy and another. On this
basis, he warns that “an unmarried clergyman who dated a parishioner and had
sexual contact by mutual consent would be guilty of the crime if the parishioner
was emotionally dependent on the clergyman as a religious/spiritual advisor.”
Smith, however, ignores that there can be no “mutual consent” so long as the
clergymember knowingly exploits the emotional dependency. In this regard,

                                        19
    Case: 12-10435         Document: 00512248465            Page: 20      Date Filed: 05/21/2013



                                         No. 12-10435

section 22.011(b)(10) does not target members of the clergy so much as forbid
them, given their position of power over the people to whom they minister, from
exploiting any emotional dependency that develops.                       Accordingly, the only
legislative presumption that section 22.011(b)(10) seems to establish is that a
clergymember may not exploit another’s emotional dependency after having acted
as that person’s spiritual advisor. See TEX. PENAL CODE § 22.011(b)(10). Given
this, we cannot say that the TCCA’s rejection of Smith’s Establishment Clause
challenge involved an unreasonable application of the Lemon test. See 28 U.S.C.
§ 2254(d)(1); Lemon, 403 U.S. at 612-13.4
                                                 B.
        With respect to Smith’s ineffective-assistance-of-appellate-counsel claim,
he must satisfy the two-prong test of Strickland v. Washington. See Smith v.
Robbins, 528 U.S. 259, 285 (2000). To succeed,
       [Smith] must first show that his counsel was objectively
       unreasonably in failing to find arguable issues to appeal—that is,
       that counsel unreasonably failed to discover nonfrivolous issues and
       to file a merits brief raising them. If [Smith] succeeds in such a
       showing, he then has the burden of demonstrating prejudice. That
       is, he must show a reasonable probability that, but for his counsel’s
       unreasonable failure to file a merits brief, he would have prevailed
       on his appeal.



       4
          In State v. Bussman, the Minnesota Supreme Court considered a Lemon-based
challenge to a similar criminal statute, which provided that “a person who engages in sexual
penetration with another . . . is guilty of criminal sexual misconduct . . . if . . . the actor is or
purports to be a member of the clergy, the complainant is not married to the actor, and[] . . .
the sexual penetration occurred during a period of time in which the complainant was meeting
on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or
comfort in private.” 741 N.W. 2d at 81-83. An equally divided court concluded that this
statute violated the Establishment Clause. See id. at 84-89. The justices noted, however, that
the statute—unlike section 22.011(b)(10)—required no proof of “the vulnerability of the victim”
or “that the clergy member abused [his] position.” Id. at 86, 88. Even if Bussman were not
distinguishable on this basis, the Minnesota Supreme Court was equally divided, suggesting
that reasonable minds could differ as to its conclusion. Furthermore, a state supreme court
cannot clearly establish law as required by § 2254(d)(1).

                                                20
    Case: 12-10435         Document: 00512248465           Page: 21     Date Filed: 05/21/2013



                                         No. 12-10435

Id. (citation omitted). Reviewing Smith’s ineffective-assistance-of-counsel claim
through the lens of AEDPA, however, means that Smith has a higher bar to
exceed in order to prevail. “Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010). “Establishing that a
state court’s application of Strickland was unreasonable under § 2254(d) is all the
more difficult” because “[t]he standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
so.” Richter, 131 S. Ct. at 788 (citations omitted). Moreover, unreasonableness
under Strickland and under § 2254(d) are not the same. First, “[t]he Strickland
standard is a general one, so the range of reasonable applications is substantial.”
Id. Second, “[w]hen § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. at 788.
       We need not consider the merits of Smith’s argument that, under
Strickland’s first prong, his appellate counsel performed deficiently by failing to
file a merits brief because, as Strickland and Smith counsel, we may dispose of
Smith’s ineffective-assistance-of-appellate-counsel claims by reference to
Strickland’s second prong—actual prejudice.                  See Smith, 528 U.S. at 285;
Strickland, 466 U.S. at 697. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That
requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”
Pinholster, 131 S. Ct. at 1403. “Thus, a court must determine the probable
outcome of the appeal had counsel’s performance not been deficient.” Schaetzle
v. Cockrell, 343 F.3d 440, 448 (5th Cir. 2003).5 In this regard, Smith has failed


       5
         In his briefing, Smith claims that with respect to Strickland’s prejudice prong he need
not show a reasonable probability that he would have prevailed on appeal. Instead, he asserts
that the relevant inquiry is whether he “received a fair appeal the result of which is worthy
of confidence.” This is incorrect. In support of this proposition, Smith cites inapposite case
law either addressing ineffective assistance of trial counsel, see, e.g., Lockhart v. Fretwell, 506

                                                21
    Case: 12-10435       Document: 00512248465         Page: 22     Date Filed: 05/21/2013



                                      No. 12-10435

to convince us that, with respect to each of his ineffectiveness claims, the TCCA
unreasonably concluded that there was not “a reasonable probability that, but for
his counsel’s unreasonable failure to file a merits brief, he would have prevailed
on his appeal.” 28 U.S.C. § 2254(d)(1); Smith, 528 U.S. at 285.
                                             1.
       Smith first argues that his appellate counsel was ineffective for failing to
challenge the constitutionality of section 22.011(b)(10).               We have already
concluded that the TCCA did not render a decision involving an unreasonable
application of clearly established federal law, thus defeating Smith’s direct
challenge to the constitutionality of section 22.011(b)(10). See 28 U.S.C. §
2254(d)(1).     Given that the TCCA did not unreasonably reject Smith’s
constitutional claim, we cannot say that the TCCA unreasonably concluded that
had Smith’s court-appointed appellate counsel challenged section 22.011(b)(10)’s
constitutionality on appeal, there was not a reasonable probability that Smith
would have prevailed. See id.; Smith, 528 U.S. at 285.
                                             2.
       Smith next argues that his appellate counsel was ineffective for failing to
challenge the sufficiency of the evidence. A challenge to the sufficiency of the
evidence asks “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319
(1979), which suggests an additional layer of deference on top of Strickland’s
deference to counsel and AEDPA’s relitigation bar. Smith fails to overcome these
hurdles.


U.S. 364 (1993), or discussing instances in which the court may presume prejudice because the
petitioner was wholly denied the assistance of counsel on appeal, see Hendricks v. Lock, 238
F.3d 985 (8th Cir. 2001). Given that Smith’s court-appointed appellate counsel complied with
the procedures established by Anders, he was not wholly denied the assistance of counsel on
appeal. See Smith, 528 U.S. at 286-87.

                                             22
   Case: 12-10435     Document: 00512248465      Page: 23   Date Filed: 05/21/2013



                                  No. 12-10435

      First, Smith argues that the evidence was insufficient to show that Smith
was acting in his “professional character as spiritual adviser” at the time of the
sexual activity with Downey. Section 22.011(b)(10), however, does not require
that the proscribed sexual activity take place contemporaneously with any
spiritual advice. See TEX. PENAL CODE § 22.011(b)(10). Regardless, we cannot
say, on review of the evidence presented at trial, that the TCCA unreasonably
concluded that a rational factfinder could have determined that Smith was acting
in his professional capacity at the time of the sexual activity.
      Second, Smith asserts that Downey was not emotionally dependent on him
at the time of the sexual activity.      Smith, however, ignores the evidence
presented to the jury, from which a rational factfinder could have concluded that
Downey engaged in sexual activity with Smith because she was emotionally
dependent on him. Accordingly, we cannot say that the TCCA unreasonably
concluded that a rational factfinder could have determined that section
22.011(b)(10)’s emotional-dependency requirement was satisfied.
      Third, Smith asserts that the evidence was insufficient to show that he
exploited Downey’s emotional dependency. Downey, however, testified that
Smith knew what was going on in her life and how vulnerable she was, that he
knew that Downey’s father committed suicide, and that he nonetheless told her
about his own suicidal feelings. Accordingly, the TCCA did not unreasonably rule
that a rational factfinder could have concluded that Smith did in fact exploit
Downey’s emotional dependency.
      Although we stop short of ruling that Smith’s sufficiency-of-the-evidence
challenge was frivolous, we do agree that the TCCA reasonably determined that
a rational factfinder could have concluded that Smith was guilty of exploiting
Downey’s emotional dependency on him in his professional capacity as spiritual
adviser within the meaning of section 22.011(b)(10). Accordingly, we cannot say
that the TCCA’s decision involved an unreasonable application of Strickland’s

                                        23
   Case: 12-10435    Document: 00512248465      Page: 24   Date Filed: 05/21/2013



                                 No. 12-10435

prejudice prong.    In other words, we conclude that the TCCA did not
unreasonably determine that, had his appellate counsel raised this argument,
there was not a reasonable probability that Smith would have succeeded on
appeal. See 28 U.S.C. § 2254(d)(1); Smith, 528 U.S. at 285.
                                       3.
      Finally, Smith argues that his court-appointed appellate counsel was
ineffective for failing to argue that the trial court erroneously sustained the
State’s objection that Smith’s trial counsel was improperly defining “clergyman.”
During closing argument, Smith’s trial counsel argued that Smith was not a
clergyman within the meaning of section 22.011(b)(10):
      MR. PEACOCK: . . . . We’re talking about clergyman. We’re not
                   talking about somebody that’s just pastoring. A
                   clergyman is clearly somebody that’s a
                   professional, right? It’s always been that way.
                   He’s not ordained. The State’s trying to poo-poo
                   that.
      MR. HEALY:        I object to the misstatement of the law by defense
                        counsel, definition of “clergyman.”
      THE COURT:        Sustained.
      MR. PEACOCK: It’s not defined. Thank you, Your Honor.
      THE COURT:        I sustained the objection. Rephrase.
      MR. PEACOCK: I’ll move along, Your Honor. Thank you.
To analyze Smith’s ineffectiveness claim with respect to this issue—specifically,
Strickland’s prejudice prong—we must consider whether Smith’s trial counsel
preserved the issue for appeal. If he did not, it would have been fruitless for
Smith’s court-appointed appellate counsel to have raised the issue.
      In Lankston v. State, the TCCA explained that “[s]traightforward
communication in plain English” is sufficient to preserve trial error. 827 S.W.2d
907, 909 (Tex. Crim. App. 1992). However, even if Smith’s trial counsel had
straightforwardly and in plain English alerted the trial court to his objection,

                                       24
   Case: 12-10435     Document: 00512248465      Page: 25   Date Filed: 05/21/2013



                                  No. 12-10435

Smith’s ineffectiveness claim would nevertheless fail. First, to the extent that
Smith’s trial counsel was attempting to improperly define “clergyman” as
requiring ordination, “[j]ury argument that misstates the law or contravenes the
court’s jury charge is improper.” Uyamadu v. State, 359 S.W.3d 753, 769 (Tex.
App. 2011). Second, Smith fails to address Strickland’s requirements; rather
than discussing why his appellate counsel was ineffective for failing to raise this
issue on appeal, he focuses his attention on why the trial court erred in
sustaining the objection. In light of the foregoing, we cannot conclude that the
TCCA’s rejection of Smith’s ineffectiveness claim involved an unreasonable
application of Strickland and its progeny. See 28 U.S.C. § 2254(d)(1); Smith, 528
U.S. at 285.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                        25
