                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-16-00225-CR

                        EX PARTE MICHAEL REIGHLEY



                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F49732


                           MEMORANDUM OPINION


       Michael Dale Reighley 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 33.021 (c) &

(d) of the Texas Penal Code unconstitutional. We affirm.

        In his sole issue on appeal, Reighley argues that the trial court erred in denying

his pretrial writ of habeas corpus because Section 33.021 (c) and (d) of the Texas Penal

Code are facially unconstitutional.        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

(Tex. Crim. App. 2013); 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. ref’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.

          Reighley was charged with the offense of online solicitation of a minor under

Section 33.021 of the Texas Penal Code. At the time of the offense, Section 33.021

provided:

          (c) A person commits an offense if the person, over the Internet, by
          electronic mail or text message or other electronic message service or
          system, or through a commercial online service, knowingly solicits a minor
          to meet another person, including the actor, with the intent that the minor
          will engage in sexual contact, sexual intercourse, or deviate sexual
          intercourse with the actor or another person.



          (d) It is not a defense to prosecution under Subsection (c) that:

                 (1) the meeting did not occur;
                 (2) the actor did not intend for the meeting to occur; or
                 (3) the actor was engaged in a fantasy at the time of commission of
                 the offense.



Ex parte Reighley                                                                       Page 2
Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws. 4049, 4050.

Effective September 1, 2015, the Texas Legislature amended Section 33.021 and removed

subsections (d) (2) and (d) (3). Acts 2015, 84th Leg., ch. 61 (S.B. 344).

          Reighley argues that subsections (c) and (d) contradict each other on the intent

element, thereby causing the statute to be internally inconsistent and unconstitutional on

its face. Reighley contends that the legislative amendments removing subsections (d) (2)

and (3) support his arguments.

          The Court of Criminal Appeals addressed the constitutionality of Section 33.021

and noted that subsection (c) prohibits and punishes an actor who uses electronic

communications to "solicit" a minor, "to meet another person, including the actor, with

the intent that the minor will engage in" certain sexual behavior. Ex parte Lo, 424 S.W.3d

at 16-17. The Court stated that “it is the conduct of requesting a minor to engage in illegal

sexual acts that is the gravamen of the offense.” Ex parte Lo, 424 S.W.3d at 17.

          The San Antonio Court of Appeals addressed the issue brought by Reighley that

subsections (c) and (d) are inconsistent in Ex Parte Zavala, 421 S.W.3d 227 (Tex.App.-San

Antonio 2013, pet. ref’d). Zavala was decided before the 2015 amendments to Section

33.021. The court held that subsections (c) and (d) of Section 33.021 are not contradictory.

Ex Parte Zavala, 421 S.W.3d at 231. The court quoted from Ex parte Lo in its holding and

stated:

                The crime of soliciting a minor under section 33.021(c) is committed,
          and is completed, at the time of the request, i.e., the solicitation. The
Ex parte Reighley                                                                       Page 3
          requisite intent arises within the conduct of soliciting the minor, and must
          exist at the time of the prohibited conduct of solicitation. Indeed, it is the
          requirement that the defendant must solicit "with the intent that the minor
          will engage in sexual contact" that operates to make otherwise innocent
          conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows
          then, that for purposes of a subsection (c) solicitation offense, it does not
          matter what happens after the solicitation occurs because the offense has
          been completed; it does not matter whether the solicited meeting actually
          occurs, or that the defendant did not intend for the meeting to actually
          occur, or that the defendant was engaged in a fantasy at the time of the
          solicitation. TEX. PENAL CODE ANN. § 33.021(d). Thus, subsection (d) does
          not conflict with or negate the intent element of the solicitation-of-a-minor
          offense defined by (c). (citations omitted)



Ex Parte Zavala, 421 S.W.3d at 232.

          We agree with the analysis in Zavala and conclude Section 33.021(c) and (d) are not

contradictory. We further find that the amendments deleting subsections (d) (2) and (3)

clarify that the offense in subsection (c) is completed at the time of the solicitation and

that it does not matter what happens after the solicitation occurs because the offense has

been completed. We overrule Reighley’s sole issue on appeal.

          We affirm the trial court's order denying Reighley's petition for habeas corpus

relief.




                                             AL SCOGGINS
                                             Justice




Ex parte Reighley                                                                          Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2016
Do not publish
[OT06]




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