NO. 05-10-01325-CR IN THE COURT OF APPEALS FOR THE 5th Court of Appeals FILED: 7/19/11 14:00 Lisa Matz, Clerk FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS NATHAN JOHN ELLIS APPELLANT V. THE STATE OF TEXAS APPELLEE ON APPEAL FROM THE 401 ST JUDICIAL DISTRICT COURT COLLIN COUNTY, TEXAS 401-81123-09 APPELLANT S BRIEF ORAL ARGUMENT REQUESTED 1
IDENTITY OF PARTIES AND COUNSEL APPELLANT S TRIAL COUNSEL Ms. Angela Tucker Angela M. Tucker, P.C. 1515 Heritage Dr. Suite 104 McKinney, Texas 75069 214-544-8310 APPELLANT S APPELLATE COUNSEL Ms. Angela D Amore Attorney At Law P.O. Box 860552 Plano, Texas 75086-0552 Bar No. 07838200 STATE S TRIAL COUNSEL Ms. Jo Dee Neal, Asst. District Attorney Ms. Kelley Sullivan, Asst. District Attorney Collin County District Attorney s Office 2100 Bloomdale Rd. Ste. 20004 McKinney, Texas 75071 STATE S APPELLATE COUNSEL Mr. Greg Willis, District Attorney Collin County District Attorney s Office 2100 Bloomdale Rd. Suite 20004 McKinney, Texas 75071 2
TABLE OF CONTENTS PAGE 1. Identity of Parties and Counsel 2 2. Table of Contents 3 3. Index of Authorities 4 4. Statement of the Case 5 5. Issue Presented 6 6. Statement of Facts 6 7. Summary of the Argument 8 8. Argument POINT OF ERROR NUMBER ONE 8 THE CRIME OF ONLINE SOLICITATION OF A MINOR, AS DELINEATED IN SECTION 33.021 OF THE TEXAS PENAL CODE VIOLATES THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTON AND ARTICLE 1, SECTION 8 OF THE TEXAS CONSTITUTION IN THAT IT IS OVERLY BROAD, INFRINGES UPON AN INDIVIDUAL S FREEDOM OF SPEECH AND RIGHT TO PRIVACY AND IS VOID FOR VAGUENESS 9. Prayer 14 10 Certificate of Service 15 3
INDEX OF AUTHORITIES PAGE CASES 1. Bynum v. State, 767 S.W. 2d. 769 (Tex. Crim. App. 1989) 9 2. Duncantell v. State, 230 S.W. 3d. 835 (Tex. App. Houston 10 14 th Dist.] 2007, pet. ref d.) 3. Ely v. State, 582 S.W. 2d. 416 (Tex. Crim. App. [Panel Op] 1979) 10 4. Long v. State, 931 S.W. 2d. 285 (Tex. Crim. App. 1996) 10 5. Maloney v. State, 294 S.W. 3d. 613 13 (Tex. App. Houston [1 st Dist.] 2009, pet. ref d.) 6. Rodriguez v. State, 93 S.W. 3d. 60 (Tex. Crim. App. 2002) 10 7. State v. Holcombe, 187 S..W. 3d. 496, 499 (Tex. Crim. App. 2006) 11 8. State v. Salinas, 982 S.W. 2d. 9 9,10 (Tex. App. Houston 1997, pet. ref d) 9. Village of Hoffman Estates v. Flipside, Hoffman Estates Inc. 9 485 U.S. 489, 102 S. Ct. 1186, 71 L Ed. 2d. 362 (1982) STATUTES Tex. Penal Code Ann. 33.021 (Vernon 2008) 8,9,10,11 4
APPELLANT S BRIEF TO THE HONORABLE COURT OF APPEALS: NOW COMES the undersigned Attorney and respectfully submits this Brief. The parties will be referred to as the Appellant and the State. STATEMENT OF THE CASE This is an appeal from the 401 st Judicial District Court, the Honorable Mark Rusch presiding. The Appellant was charged by indictment with Online Solicitation of a Minor. 1 On September 29, 2010, the Appellant pled guilty before the Jury to Count I and Count II of the indictment. (R.R. Vol. III., p. 13). He was admonished by the Judge prior to pleading guilty before the jury. (R.R. Vol. II. p. 6-19). On September 30, 2010, he was found guilty of the offense as charged in the indictment and was sentenced to Ten (10) years confinement probated for Ten (10) years and a fine of $2500.00 on Count I and to Sixteen (16) years confinement in the Texas Department of Criminal Justice, Institutional Division and assessed a fine of $2500.00 on Count II. (R.R. Vol. V., p. 6-7). The Appellant filed his Notice of Appeal on October 8, 2010. (C.R. Vol. I., p. 91) and a Motion for New Trial on October 21, 2010. (C.R. Vol. I., p. 94). 1 References to the Reporter s Record will be as (R.R. Vol., p. ). References to the Clerk s Record will be as (C.R. Vol., p. ). 5
ISSUE PRESENTED The sole issue presented in this appeal is that Tex. Penal Code 33.021 violates the First Amendment of the United States Constitution and Article 1, Section 8 of the Texas Constitution in that it is overly broad, infringes upon an individual s freedom of speech and right to privacy and is Void for Vagueness. STATEMENT OF FACTS The Appellant entered his plea of guilty to the Jury to Count I and Count II of the indictment on September 29, 2010. (R.R. Vol. III., p. 13). During the punishment phase, Detective Chris Meehan testified for the State. (R.R. Vol. III., p. 28). He testified that he was a deputy with the Collin County Sheriff s office. He testified he does a lot of work online portraying himself as a minor. In the present case, he had set up a Yahoo account posing to be a 13-year-old girl from McKinney. He was in a Texas chat room when he was contacted by the Defendant. (R.R. Vol. III., p. 34). On December 8, 2009 he was online on Yahoo. (R.R. Vol. III., p. 43). The State introduced State s exhibit 1, the chat log. (R.R. Vol. III., p. 6
43). The Defendant was known as texas cowboy 1980. (R.R. Vol. III., p. 44). The State also introduced State s exhibit 3 the recording of the interview of the Appellant and the CD of all the phone calls of the Appellant at the jail. (R.R. Vol. III., p. 45). On March 24, 2008, Detective Meehan sent Appellant a how are you message. (R.R. Vol. III.) An online conversation took place between the two of them. (R.R. Vol. III., 120). Later that night, the Appellant was stopped in a vehicle near the location given to him by Detective Meehan. (R.R. Vol. III., p. 129). A printed map of the street was found in his pocket. (R.R. Vol. III., p. 129). Condoms were also located in the vehicle and one was missing. (R.R. Vol. III., p. 129-130). Detective Meehan testified that he spoke to the Appellant s wife and she had no idea what he was doing. (R.R. Vol. III., p. 132). Jennifer Edwards testified for the State. (R.R. Vol. III., p. 155). She testified regarding her expertise as a sex offender treatment provider. (R.R. Vol. III., p. 155). Melanie Ellis, the Appellant s mother and Wendy Ellis, the Appellant s sister testified on his behalf. (R.R. Vol. III., p. 247, 264). guilty of the offense as charged in the indictment and was sentenced to Ten (10) years confinement probated for Ten (10) years and a fine of $2500.00 on Count I and to Sixteen (16) years confinement in the Texas Department of Criminal Justice, Institutional Division and 7
assessed a fine of $2500.00 on Count II. (R.R. Vol. V., p. 6-7). The Appellant filed his Notice of Appeal on October 8, 2010. SUMMARY OF THE ARGUMENT Tex. Penal Code 33.021 violates the First Amendment of the United States Constitution and Article 1, Section 8 of the Texas Constitution in that it is overly broad, infringes upon an individual s freedom of speech and right to privacy and is void for vagueness. ARGUMENT POINT OF ERROR NUMBER ONE THE CRIME OF ONLINE SOLICITATION OF A MINOR, AS DELINEATED IN SECTION 33.021 OF THE TEXAS PENAL CODE VIOLATES THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTON AND ARTICLE 1, SECTION 8 OF THE TEXAS CONSTITUTION IN THAT IT IS OVERLY BROAD, INFRINGES UPON AN INDIVIDUAL S FREEDOM OF SPEECH AND RIGHT TO PRIVACY AND IS VOID FOR VAGUENESS 8
A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, it sweeps within its coverage, speech or conduct protected by the First Amendment. Bynum v. State, 767 S.W. 2d. 769, 772 (Tex. Crim. App. 1989); see also Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d. 362 (1982). As described above, subsection 33.021(d) provides that an accused cannot defend against an online solicitation of a minor charge by asserting that he was engaging in fantasy at the time of the commission of the offense. See Tex. Penal Code Ann 33.021(d). The statute is overbroad because subsection (d) prohibits a defendant from availing himself of the defense of engaging in the lawful activity of fantasy. Subsection d impermissibly restricts a person s freedom of expression and thought. In addition, the statute impermissibly restricts a person s freedom of expression and thought. The statute also breaches an individual s right to privacy in that it intrudes on one s freedom to associate and maintain privacy in one s association under the First Amendment. The statute is unconstitutionally vague because it fails to define fantasy. The statute fails to provide citizens with sufficient information to determine whether the activity they are participating in is in contravention of the law. The Appellate Court reviews the constitutionality of a criminal statute de novo, as a question of law. See State v. Salinas, 982 S.W. 2d. 9
9, 10-11 (Tex. App. Houston [1 st Dist.] 1997, pet. ref d.) When reviewing the constitutionality of a statute, the Appellate Court presumes that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S. W. 3d. 60, 69 (Tex. Crim. App. 2002). If a statute can be construed in two different ways, one of which sustains its validity, the Appellate Court applies the interpretation that sustains it validity. Duncantell v. State, 230 S.W. 3d. 835, 843 (Tex. App. Houston [14 th Dist.] 2007, pet. ref d.). The party challenging the statute carries the burden to establish its unconstitutionality. Rodriguez, 93 S. W. 3d. at 69. The Appellate Court must uphold if they can determine a reasonable construction that will render it constitutional. Ely v. State, 582 S.W. 2d. 416, 419 (Tex. Crim. App. [Panel Op]. 1979). When an Appellant challenges a statute as both unconstitutionally overbroad and vague, we address the overbreadth challenge first. Duncantell, 230 S. W. 3d. at 843. A criminal law must be sufficiently clear in at least three respects: (1) a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited; 2) the law must establish determinate guidelines for law enforcement; and 3) where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. See Long v. State, 931 S.W. 2d. 285, 287 (Tex. Crim. App. 1996). A statute is void for vagueness if it fails to define with sufficient definiteness so that ordinary 10
people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminating enforcement. State v. Holcombe, 187 S.W. 3d. 496, 499 (Tex. Crim. App. 2006). Texas Penal Code 33.021 provides that 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 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. Tex. Penal Code Ann. 33.021(b). 2 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). 2 The indictment alleged that on or about the 30 th day of March A.D. 2009, in said county and State, did then and there being a person older than 17 years of age, with the intent to arouse and gratify the sexual desire of any person, the defendant, over the internet and by electronic mail and through a commercial online service, intentionally communicate in a sexually explicit manner, to-wit: to engage in sexual contact with a minor, to-wit: Christ Meehan, a person who represented himself to be brook_chick13, a minor, and whom the defendant believed to be younger than 17 years of age; COUNT II over the internet and by electronic mail and through a commercial online service, knowingly solicit a minor, to-wit: Chris Meehan, a person who represented himself to be brook_chick, a minor younger than 17 years of age whom the defendant believed to be younger than 17 years of age, to meet the defendant with the intent that the minor would engage in sexual contact, sexual intercourse and deviate sexual intercourse with the defendant. (C.R. Vol. I., p. 8) 11
Under the statute, minor means A) a person who represents himself or herself to be younger than seventeen year of age; or B)an individual whom the actor believes to be younger than 17 years of age. Sexual contact means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25. Sexual contact, sexual intercourse, and deviate sexual intercourse have the meanings assigned by Section 21.01 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; 3)the actor was engaged in fantasy at the time of the commission of the offense. Tex. Penal Code Ann. 33.021(d). 3 Tex. Penal Code subsection 33.021(d) provides that an accused cannot defend against an online solicitation of a minor charge by asserting that he was engaging in fantasy at the time of the commission of the offense. See Tex. Penal Code Ann 33.021(d). The statute, as applied to the Appellant, is overbroad because subsection (d) prohibits a defendant from availing himself of the defense of engaging in the lawful activity of fantasy. Subsection d impermissibly restricts a person s freedom of expression and thought. In addition, the statute, as applied 3 It is a defense to prosecution under Subsection (c) that the actor was married to the minor; or 2)the actor was not more than three years older than the minor and the minor consented to the conduct. Tex. Penal Code Ann. 33.021 (e). 12
to the Appellant impermissibly restricts a person s freedom of expression and thought. The statute, as applied to the Appellant also breaches an individual s right to privacy in that it intrudes on one s freedom to associate and maintain privacy in one s association under the First Amendment. The statute, as applied to the Appellant, is unconstitutionally vague because it fails to define fantasy. The statute fails to provide citizens with sufficient information to determine whether the activity they are participating in is in contravention of the law and there are no determinate guidelines for law enforcement. Finally, any legitimate goal of the statute does not surpass any potential unlawful applications. Consequently, this case should be reversed. 4 4 But See Maloney v. State, 294 S..W. 3d. 613 (Tex. App. Houston [1 st Dist.] 2009, pet. ref d.) 13
PRAYER WHEREFORE, PREMISES CONSIDERED, the Appellant prays that this Court find that Texas Penal Code 33.021, as applied to the Appellant, is unconstitutionally overbroad and vague. Consequently, this case should be reversed. Respectfully Submitted, Angela Gholson D Amore Attorney At Law Bar No. 07838200 P.O. Box 860552 Plano, Texas 75086-0552 972-690-0675 14
CERTIFICATE OF SERVICE I certify that on the day of, 2011, the above document was mailed, first class, in an envelope properly addressed to Collin County Assistant District Attorney, Attn: Appellate Division, Collin County District Attorney s Office, 2100 Blooomdale Rd. Ste. 20004, McKinney, Texas 75071. Angela D Amore 15