                         NUMBER 13-17-00136-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOVEIDI MARIANA-RIVERA,                                                    Appellant,

                                              v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 23rd District Court
                        of Wharton County, Texas.


                       MEMORANDUM OPINION

       Before Justices Contreras, Longoria, and Hinojosa
           Memorandum Opinion by Justice Hinojosa
      Appellant Joveidi Mariana-Rivera challenges the trial court’s denial of his pretrial

application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.08 (West,

Westlaw through 2017 1st C.S.). In what we construe as one issue, which is based on

three constitutional provisions, Mariana-Rivera contends that the trial court erred in
denying his application because section 32.51 of the penal code, which criminalizes the

fraudulent use or possession of identifying information, see TEX. PENAL CODE ANN. § 32.51

(West, Westlaw through 2017 1st C.S.), is unconstitutional on the grounds that it creates

a “thought crime” in violation of the United States Constitution’s (1) First Amendment, (2)

Due Process Clause, and (3) Eighth Amendment. We affirm.

                                     I. BACKGROUND

       Mariana-Rivera was indicted for possessing less than five items of identifying

information of another person—specifically a social security number—with the intent to

harm or defraud another. See id. Mariana-Rivera applied for a pretrial writ of habeas

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

relief, and Mariana-Rivera appeals the trial court’s denial of habeas relief. See Ex parte

Smith, 178 S.W.3d 797, 301 (Tex. Crim. App. 2005) (“The denial of relief on a pretrial writ

of habeas corpus may be appealed immediately, but the denial of a pretrial motion may

be appealed only after conviction and sentencing.”).

                                      II. DISCUSSION

A.     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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B.    Applicable Law

      Section 32.51 of the Texas Penal Code provides in relevant part:

      (a)    In this section:

             (1)    “Identifying information” means information that alone or in
                    conjunction with other information identifies a person,
                    including a person’s:

                    ....

                    (E)     social security number or other government-issued
                            identification number.

      (b)    A person commits an offense if the person, with the intent to harm or
             defraud another, obtains, possesses, transfers, or uses an item of:

             (1)    identifying information of another person without the other
                    person’s consent;

             (2)    information concerning a deceased natural person, including
                    a stillborn infant or fetus, that would be identifying information
                    of that person were that person alive, if the item of information
                    is obtained, possessed, transferred, or used without legal
                    authorization; or

             (3)    identifying information of a child younger than 18 years of age.

      (c)    An offense under this section is:

             (1)    a state jail felony if the number of items obtained, possessed,
                    transferred, or used is less than five. . . .

TEX. PENAL CODE ANN. § 32.51(a)(1)(E), (b), (c)(1).

      In our review, we “presume that the statute is valid and that the legislature was

neither unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42

(Tex. App.—Houston [1st Dist.] 2005, no pet.); see TEX. GOV’T CODE ANN. § 311.021(1),

(3) (West, Westlaw through 2017 1st C.S.); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.

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

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

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

statute bears the burden of establishing that it is unconstitutional. See State v. Rosseau,

396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

C.     Analysis

       The issue presented by Mariana-Rivera is nearly identical to the one addressed by

our sister court in Ex parte Harrington, 499 S.W.3d 142 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d), and it is similar to an issue addressed in Ex parte Sanchez, No. 01-16-

00180-CR, 2016 WL 4253731 (Tex. App.—Houston [1st Dist.] Aug. 11, 2016, no pet.)

(mem. op., not designated for publication). Both opinions are instructive.

       Mariana-Rivera argues that section 32.51 may be construed to punish thoughts.

He 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, Mariana-Rivera argues that there is no actus reus. Continuing

with that premise, he contends that an offense without an actus reus violates the

overbreadth doctrine of the First Amendment, as well as the Due Process Clause of the

Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth

Amendment.

       An offense must have an actus reus. See Ex parte Harrington, 499 S.W.3d at 148

(citing Ramirez–Memije v. State, 444 S.W.3d 624, 627 (Tex. Crim. App. 2014)). Section

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6.01 of the Texas Penal Code addresses this fundamental requirement. That statute

provides that a person commits an offense “only if he voluntarily engages in conduct,

including an act, an omission, or possession.” See TEX. PENAL CODE ANN. § 6.01(a)

(West, Westlaw through 2017 1st C.S.).        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 Ex parte Harrington, 499 S.W.3d at 148 (citing Ramirez–Memije, 444

S.W.3d at 628).

       As the habeas applicant in Harrington, Mariana-Rivera argues:

              If I know (i.e. possess) someone’s Social Security Number I commit
       no crime, but if I know someone’s Social Security Number and intend to
       embarrass (i.e. harm) him or someone else, 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.

In response to this argument, our sister court wrote:

               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).

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

Ex parte Harrington, 499 S.W.3d at 148.           The analysis in Harrington is persuasive,

Mariana-Rivera provides us with no argument for why we should deviate from our sister

court, and we decline to do so.

       In Ex parte Sanchez, the court addressed a similar “thought crime” argument by

looking to the text of the statute. Specifically, the court wrote:

               The [Texas] Penal Code defines “possession” as “actual care,
       custody, or management,” terms which suggest physical possession of
       tangible items. TEX. PENAL CODE ANN. § 1.07(a)(39) (West 2011). Black’s
       Law Dictionary similarly defines possession in terms that suggest control of
       physical items, referring to it as “the exercise of dominion over property.”
       Possession, BLACK’S LAW DICTIONARY (10th ed. 2014). Because the usual
       definition of the term assumes physical control, we construe possession in
       this context to require physical control of identifying information in written or
       recorded form. See TEX. PENAL CODE ANN. §§ 1.07(a)(39), 32.51; Maloney
       v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet.
       ref’d); Goldberg v. State, 95 S.W.3d 345, 373 (Tex. App.—Houston [1st
       Dist.] 2002, pet. ref’d). This construction comports with the general
       purpose of the [Texas] Penal Code, which is to deal with actually or
       potentially harmful conduct. See TEX. PENAL CODE ANN. § 1.02.

Although Sanchez is an unpublished memorandum opinion and lacks precedential value,

see TEX. R. APP. P. 47.7(a), as with Harrington, we find it persuasive. Also as with

Harrington, Mariana-Rivera provides us with no argument for why we should deviate from

our sister court, and we decline to do so.

       Mariana-Rivera’s sole issue is overruled.




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                                      III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                        LETICIA HINOJOSA
                                                        Justice

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

Delivered and filed the
26th day of July, 2018.




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