Affirmed and Opinion filed July 14, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00059-CR

                  EX PARTE TINA MARIE HARRINGTON


                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1489384

                                   OPINION

      In this appeal from the denial of a pretrial writ of habeas corpus, we consider
a facial challenge to the constitutionality of Section 32.51 of the Texas Penal Code.
We conclude that the challenged statute, which was enacted to combat identity
theft, is not unconstitutional on its face. We therefore affirm the trial court’s
judgment denying habeas relief.

                                  BACKGROUND

      Appellant was indicted for engaging in organized criminal activity, based on
a predicate that she committed or conspired to commit an offense under Section
32.51. The indictment alleged that appellant obtained and possessed fifty or more
items of identifying information, most of which consisted of the names and social
security numbers of different individuals.

      Appellant applied for a pretrial writ of habeas corpus, seeking to set aside
her indictment because Section 32.51 is unconstitutional. Appellant asserted three
reasons in the trial court for her requested relief. First, she argued that the statute is
overbroad on its face because it restricts protected speech in violation of the First
Amendment. Second, she argued that the statute is void for vagueness. And third,
she argued that the statute is unconstitutional because it creates a thought crime.

      The trial court denied relief. Appellant now reiterates her challenges in this
court, although she presents her arguments in a slightly different order. Appellant
also expands on her arguments in one respect, claiming that the statute is
unconstitutional because it violates the Dormant Commerce Clause. We do not
address the argument pertaining to the Dormant Commerce Clause because
appellant raised it for the first time in this court, and it was not preserved for
appellate review. See Tex. R. App. P. 33.1.

                             STANDARD OF REVIEW

      Normally, a trial court’s ruling on an application for writ of habeas corpus is
reviewed for an abuse of discretion. See Ex parte Fassi, 388 S.W.3d 881, 886
(Tex. App.—Houston [14th Dist.] 2012, no pet.). However, this case presents a
facial challenge to the constitutionality of a statute, which is a purely legal
question. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). Therefore,
our standard of review is de novo. Id.




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                                OVERBREADTH

      In most cases, a facial challenge to the constitutionality of a statute can
succeed only when the statute is shown to be unconstitutional in all of its
applications. See State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App.
2013). And usually, the defendant does not have the sort of prudential standing to
challenge a statute on the ground that it may be unconstitutional when applied to
the conduct of others. See State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App.
2015). However, under the First Amendment’s overbreadth doctrine, a statute may
be declared unconstitutional on its face, even if the statute has a legitimate
application, and even if the defendant was not engaged in activity protected by the
First Amendment. Id. at 864–65.

      A statute is overbroad if the statute sweeps within its coverage of proscribed
activities a substantial amount of speech or other conduct protected by the First
Amendment. See Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989). To
invalidate a statute under the overbreadth doctrine, the person challenging the
statute must demonstrate that there are a substantial number of instances in which
the statute cannot be applied constitutionally. See Johnson, 475 S.W.3d at 865. The
danger that the statute will be applied unconstitutionally must be “realistic” and not
based on “fanciful hypotheticals.” Id.

      The overbreadth doctrine arises out of a concern that protected speech will
be chilled by regulation. Id. That concern becomes attenuated, however, as the
regulated activity moves from pure speech towards noncommunicative conduct. Id.
“Rarely, if ever, will an overbreadth challenge succeed against a law or regulation
that is not specifically addressed to speech or to conduct that is necessarily
associated with speech (such as picketing or demonstrating).” Id.



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A.    Construction of the Statute.

      The first step in an overbreadth analysis is to construe the challenged statute.
Id. at 871. In material part, Section 32.51 provides as follows:

      A person commits an offense if the person, with the intent to harm or
      defraud another, obtains, possesses, transfers, or uses an item of
      identifying information of another person without the other person’s
      consent.

Tex. Penal Code § 32.51(b)(1).

      Several words in this statute (or their grammatical variation) are defined in
the Penal Code, and their statutory definitions track their common understanding.
See id. § 1.07(a)(11) (consent); id. § 1.07(a)(25) (harm); id. § 1.07(a)(39)
(possession); see also id. § 1.07(b) (“The definition of a term in this code applies to
each grammatical variation of the term.”). The phrase “identifying information” is
also defined statutorily. It means:

      [I]nformation that alone or in conjunction with other information
      identifies a person, including a person’s:
             (A) name and date of birth;
             (B) unique biometric data, including the person’s fingerprint,
             voice print, or retina or iris image;
             (C) unique electronic identification number, address, routing
             code, or financial institution account number;
             (D) telecommunication identifying information or access
             device; and
             (E) social security number        or   other   government-issued
             identification number.
Id. § 32.51(a)(1).

      Based on the statute’s plain language, we construe Section 32.51 as a
straightforward proscription against the improper possession or use of another

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person’s private identifying information. This construction honors the purpose of
the statute, which the Court of Criminal Appeals has said is “to prevent identity
theft.” See Jones v. State, 396 S.W.3d 558, 562 (Tex. Crim. App. 2013). There is
no textual basis for construing the statute as a regulation of speech, the free
exchange of ideas, or communicative conduct protected by the First Amendment.

B.    The Statute Does Not Implicate the First Amendment.

      In Horhn v. State, the First Court of Appeals was called to decide the same
question presented here: whether Section 32.51 is overbroad on its face in violation
of the First Amendment. See Horhn v. State, 481 S.W.3d 363, 372 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). The First Court rejected the overbreadth
challenge, holding that the statute does not implicate the First Amendment because
the statute regulates conduct that is “essentially noncommunicative, even if the
conduct includes spoken words.” Id. at 375; see also Williams v. State, No. 01-15-
00736-CR, — S.W.3d —, 2016 WL 3571296, at *3 (Tex. App.—Houston [1st
Dist.] June 30, 2016, no pet. h.) (reaffirming Horhn).

      The First Court based its decision on Scott v. State, 322 S.W.3d 662 (Tex.
Crim. App. 2010), abrogated on other grounds by Wilson v. State, 448 S.W.3d 418
(Tex. Crim. App. 2014). That case involved a challenge to a different statute,
which prohibited the making of harassing phone calls. See Scott, 322 S.W.3d at
669. To be convicted under the harassment statute, a person is not required to use
spoken words, but the person must engage in conduct with the specific intent to
harass, annoy, alarm, abuse, torment, embarrass, or offend another. See Tex. Penal
Code § 42.07(a)(4). The Court of Criminal Appeals held that the statute did not
implicate the First Amendment because a person who violated the statute would
not have the intent to engage in the legitimate communication of ideas, opinions, or
information. See Scott, 322 S.W.3d at 670. Instead, the person would only have the

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intent to inflict emotional distress for its own sake, which is not protected activity.
Id. To the extent that the statute could be applied to conduct that involved spoken
words, the Court held that the statute would still not violate the First Amendment
because the right of free speech is not absolute, and the First Amendment does not
protect communicative conduct that “invades the substantial privacy interests of
another (the victim) in an essentially intolerable manner.” Id.

      An offense under Section 32.51 occurs only when a person obtains,
possesses, transfers, or uses another person’s identifying information, without the
other person’s consent, and “with the intent to harm or defraud” that other person.
See Tex. Penal Code § 32.51(b). The intent required of Section 32.51 is similar to
the mens rea requirement of the harassment statute. Also like the harassment
statute, Section 32.51 does not specifically require spoken words or other
inherently communicative activity.

      We agree with our sister court that Scott is instructive and that Section 32.51
does not implicate the First Amendment.1 See Horhn, 481 S.W.3d at 375–76. On
its face, Section 32.51 is “not susceptible of application to communicative conduct
that is protected by the First Amendment.” Id. at 375. And to whatever extent that
the statute might be applied to communicative conduct, such conduct would not be
protected by the First Amendment because possessing or using another person’s
identifying information with the intent to harm or defraud that person is conduct
that invades the person’s substantial privacy interests in an essentially intolerable
manner. Id.




      1
         Because Section 32.51 does not implicate the First Amendment, we need not address
appellant’s argument that the statute fails the strict scrutiny standard for content-based
regulations.

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      Appellant responds that Horhn should not be followed because the First
Court did not consider every context in which identifying information may be
used. Appellant conjures an example in which a speaker criticizes another person,
either in oral or written form. Appellant contends that the speaker in this example
would face criminal liability under Section 32.51 because the use of a “person’s
name alone” qualifies as the use of identifying information.

      Appellant’s legal premise is incorrect. In Cortez v. State, the Court of
Criminal Appeals held that “a person’s name alone is inadequate to constitute an
item of identifying information.” See Cortez v. State, 469 S.W.3d 593, 600 (Tex.
Crim. App. 2015). Thus, Section 32.51 would not authorize a conviction simply
because a person spoke ill of another.

                               THOUGHT CRIME

      Appellant’s next three arguments invoke the First Amendment, the Due
Course of Law provision of the Texas Constitution, and the Cruel and Unusual
Punishment provision of the Eighth Amendment to the United States Constitution.
Each of the arguments focuses on the idea that Section 32.51 may be construed to
punish thoughts. Appellant contends that thoughts qualify as the “possession” of
information, which means that a person can be charged for merely thinking about
another person, without that other person’s consent, and with the intent to harm or
defraud that other person. If the statute is applied in this manner, appellant argues
that there is no actus reus. Continuing with that premise, appellant contends that an
offense without an actus reus violates the overbreadth doctrine of the First
Amendment, as well as the other two constitutional provisions mentioned.

      An offense must have an actus reus. See Ramirez-Memije v. State, 444
S.W.3d 624, 627 (Tex. Crim. App. 2014). Section 6.01 of the Texas Penal Code
addresses this fundamental requirement. That statute provides that a person
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commits an offense “only if he voluntarily engages in conduct, including an act, an
omission, or possession.” See Tex. Penal Code § 6.01(a). The statute then explains
that possession qualifies as a voluntary act “if the possessor knowingly obtains or
receives the thing possessed.” Id. § 6.01(b). Applying Section 6.01 to the current
context, a person can only face criminal liability under Section 32.51 for
possessing the identifying information of another if the person knowingly obtained
or received that information without the other’s consent. See Ramirez-Memije, 444
S.W.3d at 628.

      Appellant makes the following argument in her brief:

      If I know (i.e. possess) someone’s name (i.e. identifying information),
      I commit no crime, but if I know someone’s name and intend to
      defraud or harm him, I commit a felony under Section 32.51: this is a
      thought crime—I may be punished for simply thinking about a crime,
      or for mere daydreams.
This argument muddles the distinction between the actus reus and the mens rea.
Under Section 32.51, a person engages in proscribed activity (the actus reus) if the
person “obtains, possesses, transfers, or uses” an item of identifying information
without the other person’s consent. See Tex. Penal Code § 32.51(b). “Thinking
about a crime” does not fit the description of any of these proscribed activities.
However, having a criminal thought could describe the culpable mental state (the
mens rea) if the person engaged in a proscribed activity “with the intent to harm or
defraud another.” Id. The thought itself would not be punishable, but the
proscribed activity would be. And if the proscribed activity was the possession of
identifying information, the act of possession would encompass the act of coming
into possession of that information. Id. § 6.01(b).

      We conclude that Section 32.51 contains an actus reus requirement and does
not proscribe mere thought crimes.

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                                  VAGUENESS

      In her fifth point of error, appellant argues that Section 32.51 is void for
vagueness. A statute is unconstitutionally vague if its prohibitions are so unclearly
defined that a person of ordinary intelligence cannot understand what conduct is
prohibited. See Martinez v. State, 323 S.W.3d 493, 507 (Tex. Crim. App. 2010).
Appellant argues that Section 32.51 is vague because it incorporates an “all-
encompassing harm standard.” Appellant refers to the statutory definition of
“harm,” which means “anything reasonably regarded as loss, disadvantage, or
injury.” See Tex. Penal Code § 1.07(a)(25). She then applies this broad definition
to the context of speech, arguing that a speaker may feel compelled to “steer far
wider of the unlawful zone” by avoiding words that could be construed as harmful.

      Appellant’s vagueness argument seems to resemble a variation of her
overbreadth challenge. But as we explained above, Section 32.51 targets conduct,
not protected speech, and it is not overbroad in violation of the First Amendment.

      To the extent that appellant argues that the statute is void for vagueness, her
argument lacks merit. The word “harm” is defined under the Penal Code, and a
person of ordinary intelligence can comprehend from that definition and from the
language of Section 32.51 that the prohibited conduct is identity theft, which is not
constitutionally protected. We conclude that the statute is not unconstitutionally
vague.




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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice


Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).




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