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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-17-00483-CR

____________________

SHERIF SAYED MAHMOUD, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________ ______________________ 

On Appeal from the 359th District Court 

Montgomery County, Texas

Trial Cause No. 14-01-00392-CR 

____________________________________________ ____________ 

MEMORANDUM OPINION 

The State charged Sherif Sayed Mahmoud with online solicitation of a minor.

Mahmoud filed a motion to quash, in which he asserted that section 33.021 of the 

Texas Penal Code is unconstitutionally overbroad and vague, and therefore violates 

the First, Fifth, and Fourteenth Amendments. The trial court denied Mahmoud’s 

motion to quash.1 A jury then convicted Mahmoud, and the trial judge sentenced 

 

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Mahmoud also raised this issue in a pretrial application for habeas corpus.

The trial court denied his application, and on appeal, this Court affirmed the trial 
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Mahmoud to two years of confinement. In his sole appellate issue, Mahmoud argues 

that section 33.021 is an unconstitutionally overbroad content-based restriction on 

speech which violates the First Amendment. Specifically, Mahmoud argues that 

subsections 33.021(c) and (d), which prohibit the use of fantasy as a defense, are a 

content-based restriction on speech.2 Because we find Mahmoud’s challenge to be 

without merit, we conclude that the trial court did not err by denying Mahmoud’s 

motion to quash the indictment, and we therefore affirm the trial court’s judgment. 

Under section 33.021(c), a person commits the offense of online solicitation 

of a minor when 

“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.” 

 

court’s order denying Mahmoud’s application. See Ex parte Mahmoud, No. 09-15-

00424-CR, 2016 WL 1267882 (Tex. App.—Beaumont Mar. 30, 2016, pet. ref’d)

(mem. op., not designated for publication).

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In the prayer at the end of his brief, Mahmoud asks that we find that section 

33.021(c) and (d) of the Penal Code are unconstitutional “as applied” in his case. 

However, Mahmoud does not concede in his brief that the statute is facially 

constitutional; rather, he argues that it is unconstitutional as written. See Modarresi 

v. State, 488 S.W.3d 455, 465 (Tex. App.—Houston [14th Dist.] 2016, no pet.) 

(noting that when presenting an as-applied challenge, a defendant concedes the 

general constitutionality of the statute but contends it is unconstitutional as applied 

to the facts of his case). We therefore interpret Mahmoud’s issue as a facial challenge 

to the constitutionality of the statute.
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Tex. Penal Code Ann. § 33.021(c) (West Supp. 2016). At the time of Mahmoud’s 

offense, the statute defined “minor” as “an individual who represents himself or 

herself to be younger than 17 years of age; or [] an individual whom the actor 

believes to be younger than 17 years of age.” Act of May 25, 2005, 79th Leg., R.S.,

ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2015) (current version at 

Tex. Penal Code Ann. § 33.021(a)(1)). It was not a defense 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.” Act of May 25, 2005, 

79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2015) 

(current version at Tex. Penal Code Ann. § 33.021(d)).

Mahmoud argues that section 33.021 is overbroad in violation of the First 

Amendment. Mahmoud argues that section 33.021 regulates speech, restricts speech 

based on content, and fails strict scrutiny. Mahmoud contends that subsection (d) 

eliminates the specific intent requirement to commit an illegal sexual act and 

prohibits a defendant from availing himself of the defense of engaging in the lawful 

activity of fantasy. Mahmoud concludes that the statute is unconstitutional under the 

strict scrutiny standard applied by the Texas Court of Criminal Appeals in Ex parte 

Lo, and under the approach employed by the United States Supreme Court in 
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Stevens. See United States v. Stevens, 559 U.S. 460 (2010); see also Ex parte Lo, 

424 S.W.3d 10 (Tex. Crim. App. 2013).

This Court has already determined that section 33.021(c) is a conduct-based 

statute and does not criminalize protected speech; thus, the statute is not subject to 

strict scrutiny. See Ex parte Victorick, No. 09-13-00551-CR, 2014 WL 2152129, at 

*1, 4 (Tex. App.—Beaumont May 21, 2014, pet ref’d) (mem. op., not designated for 

publication). In State v. Paquette, 487 S.W.3d 286 (Tex. App.—Beaumont 2016, no 

pet.), we reaffirmed our holding in Victorick that section 33.021(c) is not 

unconstitutionally overbroad. See Paquette, 487 S.W.3d at 290. In doing so, we 

declined to revisit our holding in Victorick, and we decline to do so now. See id. 

Having rejected the argument that section 33.021 restricts speech based on content, 

we presume that statute is valid and that the legislature did not act unreasonably in 

enacting the statute, and it is within that framework that we address Mahmoud’s 

overbreadth argument. See Ex parte Victorick, 2014 WL 2152129, at *4.

We have rejected the argument that the definition of “minor” in section 33.021 

is unconstitutionally overbroad. See id. at *5. We explained that the “fact that the 

statute defines ‘minor’ to include otherwise legal communications with someone 

who may actually be over the age of 17 would not make the statute unconstitutionally 

overbroad because the ‘overbreadth,’ if any, would not be substantial when 
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compared to the compelling and legitimate purpose of the statute.” Id. We also 

rejected the argument that section 33.021(d) fails to allow for a defendant to raise 

the defense that he is engaging in the lawful activity of fantasy. See Paquette, 487 

S.W.3d at 290. In Paquette, we agreed with the First Court of Appeal’s holding in 

Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), 

which states that the statute does not “‘criminalize the act of fantasy, unless, as part 

of that ‘fantasy,’ a person engages in the conduct proscribed in Penal Code section 

33.021.’” See Paquette, 487 S.W.3d at 290 (quoting Maloney, 294 S.W.3d at 629). 

In considering that the purpose of the statute is to prevent the sexual exploitation and 

abuse of children, the First Court stated that “the overbreadth of Penal Code section 

33.021 is not substantial when judged in relation ‘to its plainly legitimate sweep.’” 

Maloney, 294 S.W.3d at 628. For the reasons stated in Maloney, we held that section 

33.021(d) does not unconstitutionally foreclose a defendant’s ability to assert a 

fantasy defense. See Paquette, 487 S.W.3d at 290.

Mahmoud also contends that section 33.021(d) eliminates the intent 

requirement to commit an illegal sexual act. See Act of May 25, 2005, 79th Leg.,

R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2015) (providing 

that it is not a defense to prosecution under section 33.021(c) that the meeting did 

not occur, that the actor did not intend for the solicited meeting to occur, or that the 
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actor was engaged in a fantasy at the time of commission of the offense). According 

to Mahmoud, the statute permits conviction even if there is no intent to commit a 

crime, either because the solicitor knows that the object of his sexual attention is not 

in fact a child, or because he has no intent for a meeting to occur. We disagree with 

Mahmoud’s argument that 33.021(d) eliminates the intent element of section 

33.021(c). 

In Paquette, we explained that section 33.021(c) unambiguously prohibits a 

person from knowingly soliciting a minor over the Internet, by electronic mail, via

text message or other electronic message service or system, or through a commercial 

online service with the intent that the minor will engage in sexual contact, sexual 

intercourse, or deviate sexual intercourse with the actor or another person. Paquette, 

487 S.W.3d 289; see also Tex. Penal Code Ann. § 33.021(c)). “There is no 

constitutionally protected right to solicit sexual contact with a recipient who 

represents that he or she is younger than 17 or a recipient who, the actor believes, is 

younger than 17, or who is actually younger than 17.” Ex parte Victorick, 2014 WL 

2152129, at *6. “Accordingly, the statute’s “prohibited behavior is sufficiently clear 

and subsection (c) would give an ordinary person ‘adequate notice’ that such conduct 

is a criminal offense.” Id. 
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Section 33.021(c) contains a mens rea requirement. See Ex parte Victorick, 

2014 WL 2152129, at *4. According to the plain language of the statute, the 

gravamen of the offense defined by subsection (c) is the knowing solicitation of a 

minor to meet a person, with the intent that the minor will engage in some form of 

sexual contact with that person. Tex. Penal Code Ann. § 33.021(c); see Ex parte 

Zavala, 421 S.W.3d 227, 232 (Tex. App.—San Antonio 2013, pet. ref’d). “The 

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

The crime of soliciting a minor on the internet under section 33.021(c) is completed 

at the time of the internet solicitation rather than at some later time if and when the 

actor meets the child. Id. (citing Ex parte Lo, 424 S.W.3d at 23). Because the 

requisite intent arises within the conduct of soliciting a minor, “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. (citing Tex. Penal Code Ann. § 

33.021(d)). 

“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. We read section 33.021(c) to require proof of specific intent to meet at the 
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time of the solicitation, and subsection (d) to refer only to the solicitor’s intent postsolicitation. See Ex parte Wheeler, 478 S.W.3d 89, 95 (Tex. App.—Houston [1st 

Dist.] 2015, pet ref’d). Thus, we interpret subsection (d) 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. See id. We hold that subsection (d) 

does not relieve the State of its burden to prove that the defendant had the specific 

intent at the time of the solicitation. See id.; Ex parte Zavala, 421 S.W.3d at 232 

(determining that subsection (d) does not negate the intent element of subsection 

(c)). Thus, we conclude that subsection (d) does not conflict with or negate the intent 

element of the solicitation-of-a-minor offense defined by (c). See Ex parte Wheeler, 

478 S.W.3d at 95; Ex parte Zavala, 421 S.W.3d at 232.

Having rejected Mahmoud’s constitutional challenge to section 33.021, we 

conclude that the trial court did not err by denying Mahmoud’s motion to quash the 

indictment. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) 

(applying a de novo standard of review to a trial court’s decision denying a motion 

to quash an indictment). We overrule Mahmoud’s sole issue and affirm the trial 

court’s judgment.
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AFFIRMED. 

 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on February 13, 2019

Opinion Delivered April 3, 2019

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.