                                                                      PD-1408-15
                    PD-1408-15                      COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                    Transmitted 11/6/2015 7:42:35 PM
                                                      Accepted 11/9/2015 4:46:27 PM
                                                                      ABEL ACOSTA
                                                                              CLERK




         To The Court Of Criminal Appeals Of Texas

                     No. 01-14-00868-CR

                Ex Parte Stuart Oland Wheeler

                 Petitioner / Appellant
                Stuart Oland Wheeler’s
           Petition for Discretionary Review

On Petition for Discretionary Review from the First Court of
Appeals; Cause Number 01-14-00868-CR, affirming the denial
of habeas corpus in Cause Number 2014V-0074 from the 155th
Criminal District Court of Austin County, Texas.


                            Mark W. Bennett
                            TBN 00792970
                            Bennett & Bennett
                            735 Oxford Street
                            Houston, Texas 77007
                            Tel. 713.224.1747
                            email MB@IVI3.com
                            Counsel for Appellant
                            6 November 2015

 November 9, 2015
Table of Contents

    Table of Contents ..................................................................................................... ii
    Table of Authorities ................................................................................................ iv
    Statement Regarding Oral Argument ....................................................................... v
    Names of All Parties ................................................................................................ vi
    Statement of the Case ............................................................................................... 1
    Statement of Procedural History .............................................................................. 2
    Grounds for Review.................................................................................................. 2
       First Ground for Review....................................................................................... 2
       Second Ground for Review .................................................................................. 2
       Third Ground for Review ..................................................................................... 2
    Reasons for Review................................................................................................... 3
    Facts ......................................................................................................................... 3
    Argument and Authorities ........................................................................................ 4
       Summary of the Argument ................................................................................... 4
       First Ground of Review: The First Court of Appeals erred when it
       mistakenly applied the usual standard of review, including the presumption
       of validity, instead of the presumption-of-invalidity standard of review for
       First Amendment, content-based statutes, to Section 33.021 of the Texas
       Penal Code. .......................................................................................................... 6
             The Issue ........................................................................................................ 7
             Section 33.021 is a content-based restriction on speech. ................................ 7
             Because Section 33.021 is a content-based restriction on speech, it is
             presumptively invalid. .................................................................................... 8
             The First Court s Rationale ............................................................................ 9
             Conclusion ................................................................................................... 11



                                                               ii
   Second Ground of Review: The First Court of Appeals erred when it held
   that Section 33.021 is not void for overbreadth. .................................................. 11
         Does Section 33.021 forbid only unprotected speech?.................................. 12
         Section 33.021 fails strict scrutiny. ............................................................... 16
         Conclusion ................................................................................................... 21
   Third Ground of Review: The First Court of Appeals erred when it held
   that Section 33.021 is not void for vagueness. ..................................................... 21
         Conclusion ................................................................................................... 23
Prayer ..................................................................................................................... 24
Certificate of Service .............................................................................................. 25
Certificate of Compliance ....................................................................................... 25
Appendix ................................................................................................................ 26




                                                          iii
Table of Authorities

                                                            Cases

    Brandenburg v. Ohio, 395 U.S. 444 (1969) ....................................................... 13
    Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) ............................................ 20
    Duncantell v. State ......................................................................................... 22
    Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).................................passim
    Ex parte Thompson, 414 S.W.3d 872 (Tex. App.̶San Antonio 2013) .............. 9
    Ex Parte Thompson, 442 S.W.3d 347 (Tex. Crim. App. 2014) .................8, 16, 17
    Grayned v. City of Rockford, 408 U.S. 104, 108‒09 (1972) ............................... 21
    Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) .................................... 21
    Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
     789 (1984) ............................................................................................. 20, 21
    Reed v. Town of Gilbert, 476 U.S. ___, 135 S.Ct. 2218 (2015) .......................... 8
    Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S.
      105 (1991) ................................................................................................... 12
    Spence v. Washington, 418 U.S. 405 (1974) ....................................................... 9
    U.S. v. Stevens, 559 U.S. 460 (2010) ............................................................... 18

                                                         Statutes

    Tex. Penal Code § 33.021 (2014) ...........................................................passim
    Tex. Penal Code § 33.021 (2015) .............................................................13, 17

                                                Other Authorities

    http://amzn.to/1PtCDsL ............................................................................... 19
    The Prevalence and Scope of Ageplay ....................................................... 4, 18, 19




                                                            iv
Statement Regarding Oral Argument

               Applicant believes that oral argument will be helpful,

                         and requests oral argument.




                                      v
Names of All Parties

    Mr. Stuart Oland Wheeler           Appellant
    Mark W. Bennett                    Trial and Appellate Counsel
    TBN 00792970                       for Appellant
    Bennett & Bennett
    917 Franklin Street
    Fourth Floor
    Houston, Texas 77002

    Mr. Phil Baker
    P.O. Box 628
    La Grange, Texas 78945
    Tel. 979.968.3783
    Ms. Brandy Robinson                Trial and Appellate Counsel for
    Asst. Criminal District Attorney   Appellee
    One East Main
    Bellville, Texas 77418
    (979) 865-5933
    Hon. Jeff Steinhauser              Trial Judge, 155th District Court,
                                       Austin County, Texas




                                         vi
                        To The Court Of Criminal Appeals Of Texas


                                       N0. 01-14-00868-CR


                                 Ex Parte Stuart Oland Wheeler


                             Petition for Discretionary Review

On Petition for Discretionary Review from the First Court of Appeals; Cause
Number 01-14-00868-CR, affirming the denial of habeas corpus relief in Cause
Number 2014V-0074 from the 155th District Court of Austin County, Texas.


   To The Honorable Court Of Criminal Appeals:

        Appellant Stuart Oland Wheeler, by and through his counsel on appeal,

        Bennett & Bennett, petitions for discretionary review.
                                                ❧

   Statement of the Case

        The State charged Mr. Wheeler on February 26, 2014, by indictment with the

        second-degree felony of online solicitation of a minor.1 Before trial, on June 13,

        2014, Mr. Wheeler filed a writ of habeas corpus alleging that Texas Penal

        Code Section 33.021, the Online Solicitation of a Minor statute, is

        unconstitutional because it is overbroad and vague.2 The trial court denied

        relief on October 23, 2014.3 Mr. Wheeler appealed.


        1
            Clerk’s Record 14.
        2
            Clerk’s Record 3–29
        3
            Clerk’s Record 57.
                                                  ❧

Statement of Procedural History

    The First Court of Appeals handed down its opinion on September 29, 2015,

    affirming the trial court’s denial of habeas relief.4 No motion for rehearing was

    filed.
                                                  ❧

Grounds for Review

    Mr. Wheeler presents three grounds for review.

First Ground for Review

             The First Court of Appeals erred when it mistakenly applied the usual
             standard of review, including the presumption of validity, instead of the
             presumption-of-invalidity standard of review for First Amendment, content-
             based statutes, to Section 33.021 of the Texas Penal Code.
Second Ground for Review

             The First Court of Appeals erred when it held that Section 33.021 is not
             void for overbreadth.5
Third Ground for Review

             The First Court of Appeals erred when it held that Section 33.021 is not
             void for vagueness.


    4
      Ex Parte Wheeler, No. 01-14-00868-CR (Tex. App.—Houston [1st Dist.], delivered
    September 29, 2015).
    5
     Technically the First Court of Appeals’ error was affirming the trial court’s October 23, 2014
    denial of habeas corpus relief.


                                                  2
                                             ❧

Reasons for Review

    The First Court of Appeals has decided an important question of state or

    federal law that has not been, but should be, settled by the Court of Criminal

    Appeals.6

            The First Court of Appeals has decided an important question of federal

    law in a way that conflicts with the applicable decisions of this Court and the

    Supreme Court of the United States.7

            The First Court of Appeals appears to have misconstrued a statute.8

            The First Court of Appeals has so far departed from the accepted and

    usual course of judicial proceedings as to call for an exercise of the Court of

    Criminal Appeals’ power of supervision.9
                                             ❧

Facts

    The State, by indictment, has alleged that Mr. Wheeler:

            with the intent that K. McBee, a minor, would engage in sexual contact with
            the defendant, knowingly solicited over the Internet the said K. McBee to
            meet the defendant.



    6
        Tex. R. App. Proc. 66.3(b).
    7
        Tex. R. App. Proc. 66.3(c).
    8
        Tex. R. App. Proc. 66.3(d).
    9
        Tex. R. App. Proc. 66.3(f).


                                              3
    This is an accusation of Online Solicitation of a Minor under Section 33.021 of

    the Texas Penal Code.10

            In this case, unlike in other cases that have come to this Court on PDR

    challenging the constitutionality of Section 33.021(c) under the First

    Amendment, there is evidence in the record of the real and substantial

    unconstitutional overreach of the statute.11
                                                  ❧

Argument and Authorities

Summary of the Argument

    What remains of Section 33.021 of the Texas Penal Code after Ex Parte Lo12

    forbids a substantial amount of speech that is protected under the First

    Amendment: speech that either is not soliciting or is directed at an adult

    whom the speaker does not believe to be a child.




    10
      Beyond this, the facts of Mr. Wheeler’s case are not a part of the record, as this is an as-
    written challenge to the statute.
    11
       See The Prevalence and Scope of Ageplay, Clerk’s Record at 15–29. In brief, ageplay—
    sexual roleplay by adults pretending to be children—is “a substantial and longstanding
    tradition”; “The ageplay community and its practitioners are numerous, diverse, and
    multifaceted.” Section 33.021 criminalizes online ageplay.
    12
         Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).


                                                  4
     The modern approach to First Amendment challenges to speech-

restricting penal statutes is a three-step inquiry:13

1.     Does the statute restrict speech (including expressive conduct) based on its
       content, including its subject matter? If the answer is “yes,” then the
       statute is presumed to be unconstitutional, and the court must ask…
2.     Does the restricted speech fall entirely into a category of unprotected speech? If
       the statute forbids only unprotected speech, the First Amendment is
       satisfied. If, however, the statute captures protected speech along with
       unprotected speech, then…
3.     Does the statute satisfy strict scrutiny? That is, is it necessary and narrowly
       written to satisfy a compelling state interest?
The First Court of appeals went off-track in the first step: it presumed this

content-based restriction on speech to be constitutional.

     Having gone off-track, the First Court of Appeals applied the wrong

analysis and arrived at the wrong result. This Court should grant discretionary

review, order briefing, hear argument, and reverse with an order that the

indictment be dismissed.
                                           ❧




13
   See, generally, United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537 (2012) (applying
this approach to the Stolen Valor Act).


                                            5
First Ground of Review: The First Court of Appeals erred
when it mistakenly applied the usual standard of review,
including the presumption of validity, instead of the
presumption-of-invalidity standard of review for First
Amendment, content-based statutes, to Section 33.021 of the
Texas Penal Code.

    In Ex Parte Lo this Court reversed the First Court of Appeals because “the

    court of appeals mistakenly applied the usual standard of review, including the

    presumption of the statute’s validity, instead of the presumption-of-invalidity

    standard of review for First Amendment, content-based statutes.”14 In this

    case the lower court has repeated the mistake that it made in Lo: it has

    presumed Section 33.021’s content-based restriction on speech to be valid,15

    and put the burden on Mr. Wheeler to rebut that presumption.16

            In making this mistake, the First Court read too much into17 this Court’s

    dicta in Lo implying that Section 33.021(c) of the Texas Penal Code is not a

    content-based restriction on speech.18
                                                 ❧




    14
         Ex Parte Lo, 424 S.W.3d at 16.
    15
         Opinion below at 6.
    16
         Opinion below at 7.
    17
      See Opinion below at 6 (“Ex parte Lo leads us to this conclusion”); id. at 7 (“Following Lo,
    we conclude that Section 33.021(c) regulates conduct and unprotected speech”).
    18
         Lo at 16–17.


                                                  6
The Issue

    Mr. Wheeler’s complaint below was that “what remains of Section 33.021 is

    unconstitutionally overbroad in violation of the First Amendment.”19 The

    First Court of Appeals addressed subsections 33.021(d)(2) and (d)(3)

    separately and ignored subsection (a)(1)(A). It is the interplay of subsections

    33.021(a)(1)(A), (d)(2), and (d)(3) with 33.021(c), however, that renders the

    whole of the statute unconstitutional.

            While the statute is captioned “Online Solicitation of a Minor,” and

    while the State may constitutionally forbid speech that is intended to lead to

    sex with children, Section 33.021 also forbids a real and substantial amount of

    speech that the State may not constitutionally forbid: speech that is intended

    to lead to sex with consenting adults (33.021(c) in conjunction with

    33.021(a)(1)(A)); and fantasy speech, which is not intended to result in sex

    with either children or adults (33.021(c) in conjunction with 33.021(d)(2)–(3)).
                                                 ❧

Section 33.021 is a content-based restriction on speech.

    “If it is necessary to look at the content of the speech in question to decide if

    the speaker violated the law, then the regulation is content-based.”20 An


    19
      Appellant’s brief below at 3. This Court held in Ex Parte Lo, 434 S.W.3d 10 (2013) that
    Section 33.021(b) of the Texas Penal Code is unconstitutional, and the definitions of Section
    33.021(a)(3) applied only to 33.021(b). Mr. Wheeler challenges what remains of the statute.
    20
         Ex Parte Lo, 424 S.W.3d at 15 fn. 12.


                                                 7
    otherwise content-neutral restriction may be rendered content-based if it

    discriminates because of the intent of the speech.21

            It would be necessary to look at the content of Mr. Wheeler’s speech to

    decide if Mr. Wheeler violated the law. Section 33.021 applies to particular

    speech because of the topic discussed22 (meeting for sex), because of the idea

    or message expressed23 (that the speaker would like to meet the recipient of

    the message for sex), and perhaps24 because of the intent of the speech.
                                                  ❧

Because Section 33.021 is a content-based restriction on
speech, it is presumptively invalid.

            [W]hen the government seeks to restrict and punish speech based on its
            content, the usual presumption of constitutionality is reversed. Content-
            based regulations … are presumptively invalid, and the government bears
            the burden to rebut that presumption.25
                                                  ❧




    21
      See Ex Parte Thompson, 442 S.W.3d 325, 347 (Tex. Crim. App. 2014) (holding that a
    portion of section 21.15 of the Texas Penal Code was content-based because it discriminated
    on the basis of the underlying sexual thought).
    22
         See Reed v. Town of Gilbert, 476 U.S. ___, 135 S.Ct. 2218, 2227 (2015).
    23
         See Id.
    24
       Whether the intent of the speech matters under Section 33.021 is an interesting question, as
    discussed below in the context of vagueness.
    25
         Ex Parte Lo, 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013).


                                                  8
The First Court’s Rationale

      As its rationale for applying the wrong presumption, the First Court in this

      case “conclude[d] that Section 33.021(c) regulates conduct and unprotected

      speech.”26 It was wrong about conduct, and it put the cart before the horse on

      protected speech.
                                                      ❧

Does Section 33.021 regulate conduct?
      In R.A.V. v. City of St. Paul the Supreme Court held:

              The First Amendment generally prevents government from proscribing
              speech, or even expressive conduct, because of disapproval of the ideas
              expressed. Content-based regulations are presumptively invalid.27
      In Ex Parte Thompson this court reiterated: “The free speech protections of the

      First Amendment are implicated when the government seeks to regulate

      protected speech or expressive conduct.”28 In the First Amendment context, in

      fact, “speech” includes expressive conduct, sometimes called “symbolic

      speech.”29 There is no distinction between content-based restrictions of

      speech and content-based restrictions of expressive conduct.


      26
           Opinion below at 7.
      27
           R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted, emphasis added).
      28
        Ex parte Thompson, 414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), aff'd, 442
      S.W.3d 325 (Tex. Crim. App. 2014) (emphasis added).
      29
        See, e.g., Spence v. Washington, 418 U.S. 405 (1974) (affixing peace symbol to flag). The
      speech in this case, however, is not expressive conduct but pure speech — words spoken or
      typed into a computer.


                                                      9
        This Court confused the First Court with its offhand remark in dicta in

Ex Parte Lo about Section 33.021(c) forbidding conduct: “it is the conduct of

requesting a minor to engage in illegal sexual acts that is the gravamen of the

offense.”30 The First Court made much of these dicta in its opinion.31 But in

Lo this Court also wrote:

        The State may not justify restrictions on constitutionally protected speech
        on the basis that such restrictions are necessary to effectively suppress
        constitutionally unprotected speech, such as … the solicitation of minors.32
So this Court in Lo correctly gave “the solicitation of minors” as an example

of “speech” — unprotected speech, but speech nonetheless.33

        Content-based restrictions on speech receive special handling. The First

Court erred in this case by treating a content-based restriction on speech as a

restriction on something else.
                                             ❧




30
   Ex parte Lo, 424 S.W.3d at 17, reh’g denied (Mar. 19, 2014). This rationale does not apply
to the fantasy speech expressly criminalized by Section 33.021(c) and (d).
31
     See Opinion Below at 6–7.
32
     Ex parte Lo, 424 S.W.3d at 18.
33
    This internal contradiction in Lo — calling solicitation at once “conduct” and “speech” —
illustrates why dicta are not binding.


                                            10
Conclusion

     Because Section 33.021 is a content-based restriction on speech, it is

     presumptively invalid and the State has the burden of rebutting that

     presumption by showing that the statute satisfies strict scrutiny.

          Even if the First Court had accidentally arrived at the right substantive

     conclusion by applying the wrong standard, the First Court’s incorrect

     presumption—that the statute is valid—alone would be reason enough for this

     Court to grant review under Texas Rule of Appellate Procedure 66.3(c): other

     courts are likely to continue giving undue weight to this Court’s dicta in Lo,

     and presuming othercontent-based restrictions to be valid, if this Court

     refuses discretionary review.

          Having applied the wrong standard, the First Court did not stumble into

     the correct substantive result, as Mr. Wheeler will show in his second and

     third grounds of review.
                                            ❧

Second Ground of Review: The First Court of Appeals erred
when it held that Section 33.021 is not void for overbreadth.

     Content-based restrictions on speech are presumptively unconstitutional and

     may be justified only if the government proves that they are narrowly tailored




                                            11
    to serve compelling state interests.34 Having found that Section 33.021 is a

    content-based restriction on speech and is presumed unconstitutional, this

    Court must next determine whether the speech forbidden by the statute is

    wholly unprotected. If the statute forbids only unprotected speech then it is a

    valid restriction on speech. If, however, the statute forbids protected speech as

    well as unprotected speech then the Court must apply strict scrutiny.
                                                  ❧

Does Section 33.021 forbid only unprotected speech?

    The second step in the analysis of a penal statute restricting speech is to ask

    whether the statute forbids only unprotected speech. If a statute forbids only

    unprotected speech—that is, speech that falls into a recognized category of

    historically unprotected speech—then the court need not apply strict

    scrutiny.35

          There are a few narrowly defined categories of historically unprotected

    speech.

          Among these categories are advocacy intended, and likely, to incite
          imminent lawless action; obscenity; defamation; speech integral to criminal
          conduct; so-called "fighting words”; child pornography; fraud; true threats;


    34
      R.A.V. v. St. Paul, 505 U. S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N. Y.
    State Crime Victims Bd., 502 U. S. 105, 115, 118 (1991).
    35
       This is effectively a strict-scrutiny shortcut: the recognized categories of historically
    unprotected speech reflect a judgment that the restriction of such speech is itself a compelling
    state interest.


                                                  12
        and speech presenting some grave and imminent threat the government has
        the power to prevent, although a restriction under the last category is most
        difficult to sustain.36
All speech that does not fall into one of those categories is protected by the

First Amendment.

        The state might rebut the presumption of unconstitutionality by showing

that all of the speech forbidden by a statute was unprotected.37 It cannot in

this case, but in theory it might.

        For example, the version of Section 33.021 that applies to conduct after

September 1, 2015 does not define “minor” to include a person whom the

defendant knows to be an adult, and does not exclude the defenses of fantasy

and lack of intent. It likely forbids only true solicitation, and the State could

argue that that fact itself was a rebuttal of the presumption of invalidity.

        When it is read in isolation, Section 33.021(c) appears to forbid only

incitement—speech intended and likely to incite imminent lawless action. This is

the only category of historically unprotected speech into which the forbidden

speech might fall. Soliciting a child to meet for sex is likely “directed to

inciting or producing imminent lawless action and is likely to incite or produce

such action,” and so unprotected under the Brandenburg test for incitement.38


36
     Alvarez, 132 S. Ct. at 2544 (citations omitted).
37
     Tex. Penal Code section 33.021 (2015).
38
   See Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (“the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe advocacy … of law


                                                13
But including Sections 33.021(a)(1)(A), 33.021(d)(2), and 33.021(d)(3) in our

reading of the statute gives the lie to this perception.

        There are four scenarios forbidden by Section 33.021; only one is

incitement.

        Either the defendant believes the complaining witness to be a child,39 or

the defendant does not believe the complaining witness to be a child.40

        Either the defendant intends to have sex with the complaining witness or

the defendant does not intend to have sex with the complaining witness

(33.021(d)(2), (3)).

        These two independent either-or conditions generate a matrix of four

scenarios:




violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action”).
39
     Tex. Penal Code § 33.021(a)(1)(B).
40
   Tex. Penal Code § 33.021(a)(1)(A). Whether the complainant is a child is not an
element of the statute.


                                           14
                                  D believes that CW is a D doesn’t believe that CW
                                           child.                is a child.
      D intends to have sex
                                  Speech is unprotected.         Speech is protected.41
            with CW
 D does not intend to have
                                      Speech is protected.        Speech is protected.
      sex with CW.

In three of these four scenarios, the defendant’s speech is constitutionally

protected. Sex between consenting adults, even those who pretend

(“represent themselves”) to be children is not a crime, and fantasy speech is

not solicitation. As this Court noted in Lo,

        statutes aimed at preventing the dissemination of harmful materials to
        minors and solicitation of minors over the internet … share either of two
        characteristics: (1) the definition of the banned communication usually
        tracks the definition of obscenity…; or (2) the statutes include a specific
        intent to commit an illegal sexual act, i.e., the actor intends to “solicit” or
        “lure” a minor to commit a sexual act.42
True solicitation requires the specific intent that a crime be committed.

Section 33.021, by forbidding constitutionally protected speech (ageplay or

fantasy) as well as constitutionally unprotected speech (incitement or

solicitation), punishes people who do not intend to commit illegal sexual acts.

Because of that this Court must determine whether it meets strict scrutiny,


41
  The situation in which the CW is a child but D does not believe it might be an edge case, but
the speech would be protected in that case as well because the accused would have no intent
that a crime be committed.
42
     Ex Parte Lo, 424 S.W.3d at 21.


                                               15
      that is, whether the State has demonstrated that it is necessary and narrowly

      drawn to satisfy a compelling state interest.43
                                                  ❧

Section 33.021 fails strict scrutiny.

      “To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to

      serve a (2) compelling state interest and (3) narrowly drawn.”44 “In this

      context, a regulation is ‘narrowly drawn’ if it uses the least restrictive means

      of achieving the government interest.”45

               Because the statute is presumed to be unconstitutional, the burden is on

      the State to prove its constitutionality.
                                                  ❧

Section 33.021 is not necessary.
      The unprotected speech that Section 33.021 forbids—the actual solicitation of

      a child to have sex—is also forbidden by Section 15.031 of the Texas Penal

      Code. An attempt to have sex with a child is also forbidden by section 15.01 of

      the Texas Penal Code.

               Because everything forbidden by the remainder of Section 33.021 is

      either forbidden by Section 15.031 (actual solicitation) or Section 15.01



      43
           Spoiler: it is not.
      44
           Ex parte Lo, 424 S.W.3d at 15.
      45
           Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).


                                                  16
      (attempt); or is constitutionally protected (fantasy, ageplay),46 Section 33.021

      is not necessary to achieve the concededly compelling state interest of

      preventing child abuse.
                                                   ❧

Section 33.021 is not narrowly drawn.
              A regulation is “narrowly drawn” if it uses the least restrictive means of
              achieving the government interest.47
      The Texas Legislature has passed, and the Governor has endorsed, a

      narrowing amendment to Section 33.021. Under the statute as amended in

      2015, “minor” means either a child under 17 years of age or someone whom

      the defendant believes is under 17 years of age, so age-play is protected; and

      “lack of intent” and “fantasy” are restored as inferential-rebuttal defenses, so

      fantasy talk is protected.48 In other words, the Texas Legislature has corrected

      the very problems that make the current Section 33.021 unconstitutional.

              The new Section 33.021 demonstrates that the broader statute at issue in

      this case is not the least restrictive means to further the State’s interest in

      preventing the actual sexual abuse of children.



      46
         See Ex Parte Lo, 424 S.W.3d at 20 (“In sum, everything that Section 33.021(b) prohibits
      and punishes is speech and is either already prohibited by other statutes (such as obscenity,
      distributing harmful material to minors, solicitation of a minor, or child pornography) or is
      constitutionally protected.”)
      47
           Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).
      48
           See Tex. Penal Code § 33.021 (2015), effective September 1, 2015.


                                                   17
                                                   ❧

The unconstitutionally forbidden speech is substantial.
      The problem with a statute that is overbroad under the First Amendment is

      that it has a chilling effect on protected speech. That chilling effect is not

      mitigated by the State’s good intentions. So the question cannot be whether

      the consenting adults engaging in role play would be prosecuted, but whether

      the State could prosecute such adults.49

            Because the statute is presumed to be unconstitutional, the burden was

      on the State to prove its constitutionality. For the State to overcome the

      presumption that the statute is unconstitutional it would have had to

      demonstrate that the overbreadth of the statute was not real and substantial.

      What does it mean that a statute is not substantially overbroad?

            Here is the First Court’s overbreadth analysis:

            [W]e conclude that the legitimate reach of Penal Code Section 33.021(c)
            dwarfs the threat of its arguably impermissible application to innocent
            ageplayers.
      This “conclusion” is no more than a guess. While there is evidence in the

      record of the prevalence of ageplay50—one component (along with fantasy) of



      49
        See U.S. v. Stevens, 559 U.S. 460, 480 (2010) (“[T]he First Amendment protects against
      the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an
      unconstitutional statute merely because the Government promised to use it responsibly.”).
      50
        On fetish site fetlife.com alone, more than 94,000 people admit an interest in ageplay. See
      The Prevalence and Scope of Ageplay 11.


                                                   18
the statute’s illegitimate reach—there is no evidence of the prevalence of

actual solicitation of children—the legitimate reach of the statute. Compared

to the number of people interested in ageplay, how many people arrange

meetings with children for sex?

        To show that the overbreadth is not real and substantial, the State may

not merely argue that most people aren’t ageplayers. It must show that the

number of people who use the Internet for ageplay or fantasy speech is not real

and substantial in comparison to the number of people who use the Internet to

arrange sex with children. The State has not accepted, much less met, its

burden.

        While Mr. Wheeler has no burden beyond showing that the statute is a

content-based restriction on speech, he has presented uncontested evidence

that it is substantial.51 A search for <ageplay erotica> books on Amazon.com

turns up more than 1,500 results.52

        Although the number of people interested in ageplay may not be huge in

absolute numbers, neither is the number of people willing to solicit sex with

actual children. For every person willing to engage in extreme human behavior




51
     Please see CR 16–29, The Prevalence and Scope of Ageplay.
52
  http://amzn.to/1PtCDsL. A search for <”first amendment law”> books, by contrast, yields
374 results: on Amazon, at least, ageplay is almost four times as popular as First Amendment
law.


                                              19
(here, sexual assault of children) there will always be many more people

interested in a tamer version (here, ageplay).

        Substantial overbreadth is not to be measured in absolute terms, but “in

relation to the statute’s plainly legitimate sweep.”53 “Real and substantial in

relation to” does not mean “more than.” “One” is substantial in relation to

“ten,” but probably not in relation to “one million.”

        “Real and substantial” lies somewhere on the line between “one can

conceive of some impermissible applications”54 and “unconstitutional in all

applications.” “In short, there must be a realistic danger that the statute itself

will significantly compromise recognized First Amendment protections of

parties not before the Court for it to be facially challenged on overbreadth

grounds.”55

        This is not a situation in which the statute forbids unprotected speech

and remains silent about the protected speech. By eliminating the defense of

fantasy and the inferential-rebuttal defense of lack of intent, Section 33.021(c)

combined with Section 33.021(d) expressly forbids fantasy speech. By defining

“minor” to include one who represents himself, but whom the defendant does

not believe, to be a child, Section 33.021(c) combined with Section 33.021(a)


53
     Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
54
  Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984).
55
     Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. at 801.


                                               20
    expressly forbids the solicitation of consenting adults. “[W]here the statute

    unquestionably attaches sanctions to protected conduct, the likelihood that the

    statute will deter that conduct is ordinarily sufficiently great to justify an

    overbreadth attack.”56
                                                  ❧

Conclusion

    Because Section 33.021 forbids a substantial amount of protected speech, such

    that it is neither necessary nor narrowly written to satisfy a compelling state

    purpose, it is void.

Third Ground of Review: The First Court of Appeals erred
when it held that Section 33.021 is not void for vagueness.

    Where, as here, First Amendment freedoms are implicated, the law must be

    sufficiently definite to avoid chilling protected expression.57

            A statute is vague if it interferes with free speech rights by causing

    citizens to “steer far wider of the unlawful zone,” than they otherwise would

    “if the boundaries of the forbidden areas were clearly marked.”58

            Section 33.021 is vague because it is contradictory. In subsection (c) it

    requires that an accused have “the intent that the minor will engage in sexual

    56
       Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. at 800
    n. 19.
    57
         Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).
    58
         Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).


                                                  21
contact, sexual intercourse, or deviate sexual intercourse,” but in subsection

(d)(2) it eliminates the inferential-rebuttal defense that “the actor did not

intend for the meeting to occur.” It is not possible for the accused both a) to

have the intent that the minor will engage in sexual contact; and b) not to

intend for the meeting to occur.

        “The unlawful zone” is the constitutionally unprotected speech of

arranging a meeting with the intent that a crime be committed. Speech with no

intent that a meeting occur would be constitutionally protected. But Section

33.021 at best leaves us in doubt whether this constitutionally protected

speech is forbidden by the statute.

        The First Court resolved this conundrum by interpreting subsection

(d)(2) to “refer[] only to the solicitor’s intent post-solicitation”—that is, to

exclude a change-of-heart defense. The legal principle underlying the First

Court’s resolution is that “if a statute can be construed in two different ways,

one of which sustains its validity, we apply the interpretation that sustains its

validity.”59

        But that legal principle—that a court must apply the interpretation that

sustains a statute’s validity—is founded in the presumption of validity.60



59
     Opinion below at 12–13.
60
   See Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d) (“We begin our review of the constitutionality of a statute with the presumption that
the statute is valid and assume the legislature did not act arbitrarily and unreasonably in


                                              22
    Because that presumption does not apply to a content-based restriction on

    speech, the rule does not apply to such a statute.

          Indeed, because a content-based restriction on speech is presumed to be

    invalid, if it can be construed in two different ways, one of which sustains its

    validity, the court must apply the other. The First Court of Appeals erred by

    construing subsection (d)(2) not to eliminate subsection (c)’s specific-intent

    element.

          Properly interpreted, Section 33.021 forbids “solicitation” that is not

    intended to result in a meeting. People of common intelligence must

    necessarily guess at the meaning of Section 33.021 and differ as to its

    application. So even if Section 33.021 were not overbroad—if it did not punish

    a substantial amount of constitutionally protected fantasy or ageplay—it

    would be void for vagueness.

Conclusion

    Because Section 33.021(d)(2) eliminates Section 33.021(c)’s specific-intent

    element, Section 33.021 is it not sufficiently definite to avoid chilling protected

    expression, and so is void for vagueness.




    enacting the statute. Therefore, if a statute can be construed in two different ways, one of
    which sustains its validity, we apply the interpretation that sustains its validity.”) (emphasis
    added).


                                                  23
Prayer

    Because the First Court of Appeals applied the wrong standard and reached

    the wrong result, please grant discretionary review, order briefing, hear

    argument, and reverse with an order that the indictment be dismissed.

                                              Thank you,
                                              Bennett & Bennett
                                              By:


                                              _________________________
                                              Mark W. Bennett
                                              917 Franklin Street, Fourth Floor
                                              Houston, Texas 77007
                                              713.224.1747
                                              832.201.7770 fax
                                              Attorneys for Mr. Wheeler




                                         24
Certificate of Service

     A copy of this Brief for Appellant has been served upon the State of Texas by

     electronic filing and by email to Lisa McMinn at lisa.mcminn@spa.texas.gov,

     to Brandy Robinson at brandy.robinson@austincounty.com, and to the

     Attorney General at const_claims@texasattorneygeneral.gov.

Certificate of Compliance

     This petition uses Matthew Butterick’s Equity and Concourse typefaces in 14-

     point. Margins are 1.5 inches, on principles suggested by Butterick’s

     Typography for Lawyers.

          According to Microsoft Word’s word count, this petition 4,332 words,

     not including the: caption, identity of parties and counsel, statement regarding

     oral argument, table of contents, index of authorities, statement of the case,

     statement of issues presented, statement of jurisdiction, statement of

     procedural history, signature, proof of service, certification, certificate of

     compliance, and appendix.
Appendix



           Opinion of the First Court of Appeals
Opinion issued September 29, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00868-CR
                           ———————————
                  EX PARTE STUART OLAND WHEELER



                   On Appeal from the 155th District Court
                            Austin County, Texas
                     Trial Court Cause No. 2014V-0074


                                 O P I N I O N

      Stuart Oland Wheeler was indicted on the felony charge of online

solicitation of a minor under Texas Penal Code section 33.021(c). See Tex. Pen.

Code Ann. § 33.021(c) (West 2014). Wheeler filed a pretrial application for a writ

of habeas corpus in which he asserted that subsections 33.021(c) and (d) are

facially unconstitutional. Noting that the Court of Criminal Appeals invalidated
subsection (b) of the same statute as an overbroad content-based restriction on

protected speech, see Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013),

Wheeler argued that the surviving subsections (c) and (d) are likewise

unconstitutional. In particular, Wheeler contends that subsections (c) and (d), in

combination, (1) violate the First Amendment of the United States Constitution

because they are overbroad content-based restrictions that criminalize protected

speech between consenting adults, (2) are contradictory and unconstitutionally

vague, and (3) violate the Dormant Commerce Clause because they unduly restrict

interstate internet communication. Wheeler appeals the trial court’s denial of the

application. We affirm.

                            Penal Code Section 33.021

      Wheeler was indicted under Penal Code section 33.021(c), which states:

    (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.

TEX. PEN. CODE ANN. § 33.021(c) (West 2014).           Section 33.02(a)(1) defines

“minor” as:

   (A)        an individual who represents himself or herself to be younger
              than 17 years of age; or

   (B)        an individual whom the actor believes to be younger than 17

                                         2
             years of age.

Id. § 33.021(a)(1).    And subsection (d) provides that 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.

Id. § 33.021(d).

                              The Parties’ Arguments

      Wheeler contends that these provisions are facially unconstitutional in three

respects. First, he asserts that they are overbroad because they impermissibly

restrict protected speech between persons engaged in “ageplay,” which Wheeler

asserts is a prevalent practice in which consenting adults roleplay as children for

their sexual gratification. According to Wheeler, the statute is overbroad because

it permits the conviction of an ageplayer who speaks solicitant words to “the object

of his sexual attention, who ‘represents himself’ to be a child”—and thus meets the

statute’s definition of “minor”—but is not in fact a child. Wheeler also contends

that the statute is overbroad because subsection (d) both (1) eliminates the specific

intent requirement of (c) and (2) precludes an ageplayer from defending himself on

the basis that the solicitation was a mere fantasy.



                                           3
       Second, Wheeler argues that the statute is unconstitutionally vague because

subsection (c) purports to require proof of specific intent—that the defendant

intended to meet and have sexual contact with the minor at the time of the

solicitation—only to have subsection (d) “eliminate[] the intent element” of (c).

Wheeler asserts that this contradiction prevents persons of ordinary intelligence

from understanding the prohibited conduct.

       Finally, Wheeler asserts that the statute violates the Dormant Commerce

Clause because it unduly burdens interstate commerce by “attempting to place

regulations on [i]nternet users everywhere.”

       Based on his premise that the statute is a content-based restriction on

protected speech, Wheeler asserts that we must presume the statute invalid and that

the State has the burden to demonstrate its validity under the categorical approach

employed by the United States Supreme Court in Alvarez and Stevens. See United

States v. Alvarez, 132 S. Ct. 2537 (2012); United States v. Stevens, 559 U.S. 460

(2010).    Alternatively, he argues that, at a minimum, we must subject the statute

to strict scrutiny.

       The State contends that Penal Code section 33.021(c) restricts conduct and

not merely speech. Therefore, argues the State, we must presume that the statute is

valid and subject it only to rational basis review. The State contends that the

statute bears a rational relationship to the legitimate state interest in protecting



                                         4
minors from sexual predators and thus passes constitutional muster. Alternatively,

the State argues that if the combination of (c) and (d) is unconstitutional, we should

uphold subsection (c), under which Wheeler was indicted, and strike the offending

portions of subsection (d).

                                 Standard of Review

      Whether a statute is facially unconstitutional is a question of law that we

review de novo. Ex parte Lo, 424 S.W.3d at 14. When the constitutionality of a

statute is attacked, we usually begin with the presumption that the statute is valid

and that the legislature has not acted unreasonably or arbitrarily in enacting it. Id.

at 14–15. The party challenging the statute normally carries the burden to establish

the statute’s unconstitutionality. Id. at 15.

      A different standard of review applies, however, if the challenged statute

seeks to restrict speech based on its content. Ex parte Lo, 424 S.W.3d at 15. In

that case, the usual presumption of constitutionality is reversed, the statute is

presumed invalid, and the State bears the burden to rebut the presumption. Id.

This is because statutes that suppress, disadvantage, or impose differential burdens

upon speech because of its content are subject to the most exacting scrutiny. Id.

(quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445

(1994)). A law that regulates speech thus survives only if it is narrowly drawn and

necessary to serve a compelling state interest. Ex parte Lo, 424 S.W.3d at 15.



                                            5
      Wheeler argues that the Court of Criminal Appeals incorrectly applied strict

scrutiny in Ex parte Lo, and he urges us to apply the “categorical approach.” We

conclude that we are bound to apply the usual standard in which we presume the

statute’s validity and Wheeler bears the burden to demonstrate its invalidity.

      Ex parte Lo leads us to this conclusion. Lo was charged under section

33.021(b), which prohibited a person from communicating online in a sexually

explicit manner with a minor if the person had the intent to arouse and gratify

anyone’s sexual desire. Ex parte Lo, 424 S.W.3d at 17. The Court of Criminal

Appeals concluded that section 33.021(b) was unconstitutionally overbroad

because it restricted and punished speech based on content but was not narrowly

drawn. Id. at 24 (noting that subsection (b) would bar electronic communication

relating to “many modern movies, television shows, and ‘young adult’ books, as

well as outright obscenity, material harmful to a minor, and child pornography”).

      In reaching that conclusion, the Court of Criminal Appeals noted that

subsection (c), under which Wheeler was charged, “provides an excellent contrast”

to subsection (b). Id. at 17. The Court described subsection (c) as a solicitation

statute, the likes of which have been routinely upheld, because offers to engage in

illegal transactions such as sexual assault of minors are categorically excluded

from First Amendment protection. Id. at 16–17. It expressly noted that the

gravamen of the offense of solicitation is “the conduct of requesting a minor to



                                          6
engage in illegal sexual acts.” Id. at 17 (emphasis in original). It contrasted

subsection (b) as “very different” because it “prohibits and punishes speech based

on its content.” Id. Following Lo, we conclude that section 33.021(c) regulates

conduct and unprotected speech.          Id. (noting solicitation of minors is

constitutionally unprotected speech); see also Ex parte Victorick, No. 09-00551-

CR, 2014 WL 2152129, at *2 (Tex. App.—Beaumont May 21, 2014, pet. ref’d)

(mem. op., not designated for publication) (concluding that section 33.021(c)

punishes conduct rather than the content of speech alone), cert. denied, Victorick v.

Texas, 135 S. Ct. 1557 (2015). We therefore must presume the statute’s validity

and place the burden of demonstrating unconstitutionality upon Wheeler. Ex parte

Lo, 424 S.W.3d at 17; Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d.) (applying presumption that statute is valid in

its review of overbreadth and vagueness challenges to Penal Code section

33.021(c)); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013,

pet. ref’d) (presuming validity of Penal Code section 33.021(c) in considering

vagueness challenge); Ex parte Victorick, 2014 WL 2152129, at *2 (applying

presumption of statutory validity in overbreadth and vagueness challenges to

section 33.021(c)).

                             Overbreadth Challenges

      According to the First Amendment overbreadth doctrine, a statute is facially



                                         7
invalid if it prohibits a “substantial” amount of protected speech “judged in relation

to the statute’s plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18 (quoting

Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S. Ct. 2191 (2003)); see also Bynum

v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). Before a statute will be

invalidated on its face as overbroad, the overbreadth must be real and substantial in

relation to its plainly legal sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973). Put differently, a statute should not be invalidated for overbreadth merely

because it is possible to imagine some unconstitutional application. See In re Shaw,

204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d).

      1.     Penal Code Section 33.021(c)

      This Court, and the Beaumont Court of Appeals, have held that Penal Code

section 33.021(c) is not unconstitutionally overbroad. See Maloney, 294 S.W.3d at

626–29 (rejecting overbreadth challenge to subsection 33.021(c)); Ex parte

Victorick, 2014 WL 2152129, at *2 (same). Nevertheless, Wheeler urges us to

revisit this precedent in light of his argument that the statute prohibits an adult

ageplayer from soliciting a consenting fellow ageplayer who is pretending to be a

child as part of a fantasy. In support of his argument, Wheeler relies on an article

by Paul J. Dohearty demonstrating the purported prevalence of ageplay.

      But longstanding precedent teaches that a statute should not be invalidated

for overbreadth merely because it is possible to imagine some unconstitutional



                                          8
application. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v.

Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118 (1984)); Ex parte

Victorick, 2014 WL 2152129, at *2. Indeed, the United States Supreme Court has

explained,

      Because of the wide-reaching effects of striking down a statute on its face at
      the request of one whose own conduct may be punished despite the First
      Amendment, we have recognized that the overbreadth doctrine is “strong
      medicine” and have employed it with hesitation, and then “only as a last
      resort.”

New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348 (1982) (citing Broadrick,

413 U.S. at 613).

      Here, the government objective—to protect children from sexual

exploitation and abuse—is one the Supreme Court of the United States regards as

having surpassing importance. Id. at 757. Although the Dohearty article asserts

that ageplay is increasingly prevalent in the age of social media, we conclude that

the legitimate reach of Penal Code section 33.021(c) dwarfs the threat of its

arguably impermissible application to innocent ageplayers and that whatever

overbreadth exists should be cured by thorough and case-by-case analysis and

judicious use of prosecutorial discretion.1 See Maloney, 294 S.W.3d at 627 (citing

Ferber, 458 U.S. at 773–74).       Because the statute’s arguable overbreadth is

insubstantial when judged in relation to the statute’s plainly legitimate sweep, we

1
      We note that Wheeler himself does not assert that he was engaging in innocent
      ageplay when he made the online solicitation for which he was indicted.

                                          9
hold that Penal Code section 33.021(c) is not unconstitutionally overbroad. Id; see

also Ex parte Victorick, 2014 WL 2152129, at *2.

      2.     Penal Code Section 33.021(d)(2)

      Wheeler contends that Penal Code section 33.021(d)(2) is overbroad because

it eliminates the element of specific intent required by subsection (c). See TEX.

PEN. CODE ANN. § 33.021(d)(2) (providing that it is not a defense to prosecution

under section 33.021(c) that the actor did not intend for the solicited meeting to

occur). Thus, argues Wheeler, the statute permits conviction even of one who did

not, in fact, intend at the time of the solicitation to actually meet the minor whom

he solicited. We disagree.

      “If a statute can be construed in two different ways, one of which sustains its

validity, we apply the interpretation that sustains its validity.”      Maloney, 294

S.W.3d at 626. Here, we read subsection (c) to require proof of specific intent to

meet at the time of the solicitation, and subsection (d)(2) to refer only to the

solicitor’s intent post-solicitation. In other words, we interpret subsection (d)(2) to

preclude only a defense on the basis that the solicitor lost the specific intent to

meet or changed his mind about meeting after the solicitation occurred. We hold

that Subsection (d)(2) does not relieve the State of its burden to prove that the




                                          10
defendant had the specific intent to meet at the time of the solicitation. 2 See Ex

parte Zavala, 421 S.W.3d at 231–32 (concluding that Penal Code sections

33.021(c) and (d)(2) are not contradictory and construing (d)(2) to mean that it is

irrelevant whether, post-solicitation, the defendant no longer intended for the

meeting to occur, because offense is complete at the time of solicitation if the

defendant has the requisite intent to meet at the time of the solicitation).

      3.     Penal Code Section 33.021(d)(3)

      Wheeler argues that Penal Code section 33.021(d)(3) is unconstitutionally

overbroad because it precludes a defense to prosecution under (c) based on the fact

that a defendant was engaged in ageplay—i.e., was fantasizing that the consenting

adult receiving the solicitation was actually a child—at the time of the solicitation.

      As we discussed above, a statute should not be invalidated for overbreadth

merely because it is possible to imagine some unconstitutional application. In re

Shaw, 204 S.W.3d at 15 (citing Taxpayers for Vincent, 466 U.S. at 800); Ex parte

Victorick, 2014 WL 2152129, at *2. As we have already concluded, the statute’s

plainly legitimate objective is one of surpassing importance. When judged in

2
      Wheeler argues that this interpretation of (d)(2) would render it superfluous and
      therefore meaningless, because a “change of heart” defense is not a defense in any
      case. We note, however, that renunciation may be an affirmative defense in some
      circumstances, see TEX. PENAL CODE ANN. § 15.04 (West 2011), and that it was
      the legislature’s prerogative to underscore in (d)(2) the concept that the offense
      described in section 33.021 is complete when the culpable request or inducement
      is unilaterally presented. We also note that the legislature has amended section
      33.021 to eliminate (d)(2) and (d)(3), effective September 1, 2015.

                                           11
comparison to the statute’s plainly legitimate sweep, we conclude that the statute’s

arguable overbreadth is insubstantial.      Accordingly, we hold that Penal Code

section 33.021(d)(3) is not unconstitutionally overbroad. Id.; see also Ex parte

Victorick, 2014 WL 2152129, at *2.

      We overrule Wheeler’s first issue.

                               Vagueness Challenge

      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).

      Wheeler argues that the statute is unconstitutionally vague because Section

33.021(d) “eliminates the intent element from Section 33.021(c).” Wheeler asserts

that the statute is thus self-contradcitory and, therefore, people of common

intelligence must necessarily guess at its meaning. As we discussed in the context

of Wheeler’s overbreadth challenges, if a statute can be construed in two different

ways, one of which sustains its validity, we apply the interpretation that sustains its



                                           12
validity. Maloney, 294 S.W.3d at 625. We have construed subsection (c) to

require proof of specific intent to meet at the time of the solicitation, and we hold

that subsection (d)(2) refers only to the solicitor’s intent post-solicitation. This

construction of the statute eliminates any supposed conflict between subsection (c)

and subsection (d)(2). See Ex parte Zavala, 421 S.W.3d at 232 (concluding that

Penal Code sections 33.021(c) and (d)(2) are not contradictory and rejecting

vagueness challenge based on asserted contradiction). Accordingly, we hold that

Penal Code section 33.021 is not unconstitutionally vague.

      We overrule Wheeler’s second issue.

                           Commerce Clause Challenge

      In his third issue, Wheeler contends that section 33.021 violates the Dormant

Commerce Clause of the United States Constitution by “unduly burden[ing]

interstate commerce by attempting to place regulations on the entirety of the

internet.” See U.S. CONST. art. I, § 8.

      The only authority Wheeler cites in support is American Libraries

Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (striking down statute

criminalizing use of a computer to communicate sexually explicit materials to

minors). In Pataki, the defendants “[did] not challenge the sections of the statute

that . . . prohibit adults from luring children into sexual contact by communicating

with them via the internet.” Id. at 179. Rather, the law challenged in Pataki was



                                          13
aimed at limiting exposure by minors to harmful content. It was that portion of the

law which was ultimately found to impose a burden on interstate commerce that

was disproportionate to the local benefits of regulation. Section 33.021(c), by

contrast, does not punish communication of explicit materials to minors. Instead, it

criminalizes online solicitation of minors with the intent to engage in sexual

conduct. Pataki is thus inapposite.

      The Supreme Court of the United States established a balancing test to

determine whether a burden on interstate commerce imposed by a regulation is

excessive in relation to putative local benefits. See Pike v. Bruce Church, Inc., 397

U.S. 137, 142; 90 S. Ct. 844, 847 (1970). Where the statute regulates even-

handedly to effectuate a legitimate local public interest, and its effects on interstate

commerce are only incidental, it will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the putative local benefits. Huron

Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 816

(1960). If a legitimate local purpose is found, then the question becomes one of

degree. And the extent of the burden that will be tolerated will depend on the

nature of the local interest involved, and on whether it could be promoted as well

with a lesser impact on interstate activities. Pike, 397 U.S. at 142.

      Wheeler does not articulate, and we cannot discern, how section 33.021

differentiates between inter and intra state commerce. The statute is even-handed.



                                          14
Courts have concluded—and we agree—that protecting children from sexual

predators is a legitimate local public interest. See, e.g., Ex parte Lo, 424 S.W.3d at

21 (“There is no question that the State has a right—indeed a solemn duty—to

protect young children from the harm that would be inflicted upon them by sexual

predators.”). And we also conclude that the effect of the statute on interstate

commerce is only incidental in relation to the local benefit of the statute.

Accordingly, we reject Wheeler’s challenge to section 33.021 under the Dormant

Commerce Clause. Huron Portland Cement, 362 U.S. at 443 (evenhanded local

regulation to effectuate a legitimate local public interest is valid unless unduly

burdensome on interstate commerce).

      We overrule Wheeler’s third issue.

                                    Conclusion

      We affirm the trial court’s ruling denying Wheeler’s application for habeas

corpus relief.




                                                    Rebeca Huddle
                                                    Justice



Panel consists of Justices Jennings, Higley, and Huddle.
Publish. TEX. R. APP. P. 47.2.



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