Opinion issued April 12, 2016




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-14-00925-CR
                             ———————————
                 EX PARTE TERRY LYNN SPIES, Appellant



                    On Appeal from the 337th District Court
                            Harris County, Texas
                       Trial Court Case No. 1343443-A



                        MEMORANDUM OPINION

      Appellant, Terry Lynn Spies, appeals from the trial court’s denial of his

application for a writ of habeas corpus. Appellant contends that the trial court abused

its discretion by denying his application because section 33.021(c) of the Texas

Penal Code is unconstitutional as applied to him, in light of Ex parte Lo, 424 S.W.3d
10 (Tex. Crim. App. 2013), and Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App.

2014). We affirm.

                                    Background

      Appellant was charged with the felony offense of online solicitation of a minor

by knowingly soliciting by electronic mail the complainant “an individual who

represented himself to be younger than seventeen years of age to meet the [appellant]

with the expectation that the Complainant would engage in sexual contact with the

[appellant].” See TEX. PENAL CODE ANN. § 33.021(c) (West Supp. 2015). On

November 12, 2013, appellant pleaded guilty to the offense alleged in the complaint.

The trial court deferred an adjudication of guilt and placed appellant on community

supervision for a term of five years.

      On July 1, 2014, appellant filed his verified application for a writ of habeas

corpus, contending that he was placed on deferred adjudication “for the offense of

Online Solicitation of a Minor pursuant to Texas Penal Code Section 33.[021](b)”

and was entitled to habeas relief because the Texas Court of Criminal Appeals had

determined in Ex parte Lo that section 33.021(b) was unconstitutional. The State

responded that the Ex parte Lo holding did not apply in this case because appellant

was charged under section 33.021(c), not section 33.021(b), and no authority

supported his request for relief under section 33.021(c).




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      The trial court denied appellant’s application for habeas relief. The trial court

also signed findings of fact and conclusions of law. In part, the trial court found:

      9.     [Appellant] was charged under subsection (c), the luring statute,
             and the charging instrument specifically sets out the elements of
             “solicitation of a minor” under subsection (c), the luring statute.
             It is the conduct of requesting a minor to engage in illegal sexual
             acts that is the gravamen of the offense under subsection (c),
             distinctly different from the speech only offense proscribed in
             subsection (b).

      10.    [Appellant] is not entitled to relief under Ex Parte Lo. Texas
             Penal Code section 33.021(c) has not been held unconstitutional.
             This Court does not find that Texas Penal Code Section 33.021
             (c) is unconstitutionally overbroad or vague, nor that it prohibits
             any constitutionally protected actions.

                                Standard of Review

      We review a trial court’s ruling on a habeas corpus application for an abuse

of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In

reviewing a trial court’s decision to deny habeas relief, we review the facts in the

light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804,

819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis,

219 S.W.3d 335 (Tex. Crim. App. 2007). We afford almost total deference to the

trial court’s findings of fact that are supported by the record, especially when the

trial court’s fact findings are based on an evaluation of credibility and demeanor. Ex

parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte

White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)). However, if the resolution of

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those ultimate questions turns on an application of legal standards absent any

credibility issue, we review the determination de novo. Ex parte Peterson, 117

S.W.3d at 819. We will uphold the trial court’s judgment on any theory of law

applicable to the case. Ex parte Evans, 410 S.W.3d 481, 484 (Tex. App.—Fort

Worth 2013, pet. ref’d).

                                     Discussion

      On appeal, appellant contends that the trial court abused its discretion in

denying his habeas application because Texas Penal Code section 33.021(c) as

applied to him is unconstitutional in light of Ex parte Lo. Specifically, relying on Ex

parte Lo, appellant asserts that his online speech was constitutionally protected

because, “although he ‘agreed to meet the underage minor’, he never followed

through.”

      Appellant, however, did not raise in the trial court the argument that he raises

in this Court. In his habeas application, appellant asserted that he was placed on

deferred adjudication for the offense of online solicitation of a minor pursuant to

section 33.021(b) and his case was identical to the issues adjudicated in Ex parte Lo.

Relying on Ex parte Lo and Ex parte Chance, appellant contended that he was

entitled to habeas relief because he “was placed on Deferred Adjudication for an

offense that has been declared unconstitutional.” He did not argue in the trial court




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that the statute is unconstitutional as applied to him because he “never followed

through.”

      Because his argument in the trial court does not comport with his argument in

this Court, we conclude that appellant has not preserved his argument for our review.

See TEX. R. APP. P. 33.1; see also Ex parte Evans, 410 S.W.3d at 485 (citing State

v. Romero, 962 S.W.2d 143, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.))

(declining to consider argument that appellant did not raise in application for writ of

habeas corpus in trial court).

      Nevertheless, to the extent appellant’s complaint has preserved any issue for

our review, we conclude that appellant has not shown that the trial court abused its

discretion in denying the requested habeas relief. Appellant contends that the trial

court abused its discretion because Texas Penal Code section 33.021(c) as applied

to him is unconstitutional because a statute may be valid as applied to one set of facts

and invalid as applied to another. See State ex rel. Lykos v. Fine, 330 S.W.3d 904,

910 (Tex. Crim. App. 2011) (“A litigant raising only an ‘as applied’ challenge

concedes the general constitutionality of the statute, but asserts that the statute is

unconstitutional as applied to his particular facts and circumstances.”).

      Appellant was charged with, and pleaded guilty to, an offense of online

solicitation of a minor under section 33.021(c) of the Texas Penal Code. See TEX.

PENAL CODE ANN. § 33.021(c). The complaint, which the State attached to its

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response in the trial court, states that appellant was charged with knowingly

soliciting by electronic mail “an individual who represented himself to be younger

than seventeen years of age to meet the [appellant] with the expectation that the

Complainant would engage in sexual contact with the [appellant].” The complaint

reflects that the complainant was an investigator with the Harris County Constable’s

Office who used “the undercover persona of a fourteen year old female” and

appellant communicated with the officer “through his undercover persona to set up

a meeting for sex.”

      Appellant’s reliance on Ex parte Lo does not support his contention that his

online speech was constitutionally protected because “he never followed through”

with a meeting. In Ex parte Lo, the Texas Court of Criminal Appeals considered a

constitutional   challenge   to    section    33.021(b)—“the    ‘sexually   explicit

communications’ provision.” Ex parte Lo, 424 S.W.3d at 14. At the time appellant

committed the alleged offense, section 33.021(b) provided:

      A person who is 17 years of age or older commits an offense if, with
      the intent to arouse or gratify the sexual desire of any person, the
      person, over the Internet, by electronic mail or text message or other
      electronic message service or system, or through a commercial online
      service, intentionally:

      (1) communicates in a sexually explicit manner with a minor; or

      (2) distributes sexually explicit material to a minor.




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Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, sec. 33.021(b), 2007 Tex. Gen.

Laws 1167–68 (amended 2015) (current version at TEX. PENAL CODE § 33.021(b)).1

The section prohibited and punished only speech. See Ex parte Lo, 424 S.W.3d at

20. The Texas Court of Criminal Appeals concluded that the provision was

unconstitutionally overbroad because it restricted and punished a type of speech,

sexually explicit, based on content and was not narrowly drawn to effectuate a

compelling state interest. Id. at 14.

      In contrast to the speech regulation attempted in section 33.021(b), section

33.021(c) focuses on “the conduct of requesting a minor to engage in illegal sexual

acts.” Id. at 17 (emphasis in original). Section 33.021(c) provides:

      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. PENAL CODE ANN. § 33.021(c); see Act of May 25, 2005, 79th Leg., R.S., ch.

1273, § 1, sec. 33.021(a)(1), 2005 Tex. Gen. Laws 4050 (defining “minor” to include

“individual who represents himself or herself to be younger than 17 years of age” or



1
      Subsections (a), (b), (d), and (e) of section 33.021 were amended effective
      September 1, 2015. See Act of May 5, 2015, 84th Leg., R.S., ch. 61, § 1, sec.
      33.021(a), (b), (d), 2015 Tex. Gen. Laws 1036 (current version at TEX. PENAL CODE
      § 33.021(a), (b), (d), (e)). The amendments apply only to offenses committed on or
      after September 1, 2015. Id. § 3.
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“individual whom the actor believes to be younger than 17 years of age”); see also

Ex parte Wheeler, No. 01-14-00868-CR, 2015 WL 5770850, at *3 (Tex. App.—

Houston [1st Dist.] Sept. 29, 2015, pet. ref’d) (citing Maloney v. State, 294 S.W.3d

613, 627–28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)) (holding that section

33.021(c) is not unconstitutionally overbroad). Under section 33.021(c), “[t]he

prohibited conduct is the act of ‘soliciting.’” Ex parte Zavala, 421 S.W.3d 227, 232

(Tex. App.—San Antonio 2013, pet. ref’d) (citing TEX. PENAL CODE ANN.

§ 33.021(c)).

      Further, in Ex parte Zavala, the San Antonio court of appeals concluded that,

under section 33.021(c), it did not matter that the meeting did not occur. 421 S.W.3d

at 232. In analyzing the intent required to commit an offense under section 33.021(c),

the court stated:

      [I]t is the requirement that the defendant must solicit “with the intent
      that the minor will engage in sexual contact” that operates to make
      otherwise innocent conduct, i.e., soliciting a minor to meet, into
      criminal conduct. It follows then, that for purposes of a subsection (c)
      solicitation offense, it does not matter what happens after the
      solicitation occurs because the offense has been completed; it does not
      matter whether the solicited meeting actually occurs, or that the
      defendant did not intend for the meeting to actually occur, or that the
      defendant was engaged in a fantasy at the time of the solicitation.

Id. at 232 (citing Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, sec. 33.021(d),

2005 Tex. Gen. Laws 4050) (amended 2015) (current version at TEX. PENAL CODE

§ 33.2(d)); see Ex parte Wheeler, 2015 WL 5770850, at *4 (construing section

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33.021(c) to require proof of specific intent to meet at time of solicitation). Given

that the gravamen of an offense under section 33.021(c) is the conduct of soliciting

a minor to engage in sexual conduct, to which appellant pled guilty, we conclude

that appellant has not shown that section 33.021(c) is unconstitutional as applied to

his particular facts and circumstances. Accordingly, we overrule appellant’s two

issues on appeal.

                                    Conclusion

      We affirm the trial court’s order.




                                               Russell Lloyd
                                               Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Massengale, concurring.

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




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