## In the Court of Appeals Second App ellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00216

- CR

___________________________

On Appeal fr om Criminal D i strict Court No. 2 T arran t County, Texas Trial Court No. CDC2

- C009633

- 00

Before Bi rdwell, Bassel, and Womack, JJ. Opinion by Ju stice Birdwell 

### E X PARTE 

### T O N YA 

### C OUCH2 OPINION
Ton ya C ouch appeals from an order denying her pretrial application for habeas
rel ief

. I n t hree points , s he conten ds t hat the trial court should have dismissed indictments pending against her in fo ur trial co urt cause numbers because the s tatute under which sh e has been charged

–– Penal Code Section 34.02(a)(4)

–– is facially
unconstitution al un de r the First , E ig ht h , and Four t een th Am endment s of the United
States Constitution. See U. S. Const. a mend s . I, VIII , XIV. We affirm

. P rocedural Ba ckground
In four different trial court cause numbers , Couch is c harged with money laundering. In numb er 145726 4, t he Stat e cha rg ed her with
k no wingly financ[ing] or invest[ing] or intend[ing] to finance or inv es t f

unds of $30,000 or more but less than $1 50,000, that Tonya Couch be lieved were intended to further the commission of criminal activity: namel y hinderi ng a pprehen sion of Ethan Couch, an individual having engaged in delinquent conduct that violated a pe na l law of a grade of felony

. In numb er s 1596597 a nd 15 97467 , the State charged her with “ k nowingly financ[ing] or invest[ing] or intend [ing ] to f i nance o r invest fund s of $30,000 or more but less than $150,000, that [Tonya Couch] believ ed w ere intended to further the commission
of criminal activity, to

- wit: hindering apprehension

. ” And fin ally, in number 1598847,

t he State char ged her wit h [ k] nowingly fi nanc [ing] or intend[ing] to finance funds of $30,000 or more but less than $150,000 that [Tonya Couch] be lieved wer e intended to further the c ommission of criminal activity, to

- wit: hindering apprehension of Ethan Co uch, by w ithd rawing funds i n cash in the3 amo unt of $30,000 from JPMorgan Chase Bank to finance t he travel of [ Tony a Couch] and Ethan Couch to Mex ico

. Couch filed an app lication for writ of habeas corpus and an amended application for writ of habeas corp u s , s eeking d i sm i ssal of all four indictments. Couch
contended in the trial cour t, as she contends on appeal, t hat Penal Code Section 34.02(a )(4), under which she was charged in all four indictments, is facially
unconstit utional beca u se “ by for bi dd ing the mere inte nt to finance or invest funds
intended to further the commission of cri minal activity, ” it “ creates a though t c rime ”
in violation of the F irst , Eighth , and Fourteenth Amendment s of the United St ate s Constitu tion. After a no nevi dentiary hearing, the tr i al court denied the application

. Sta ndard of R eview A pretria l habeas app lication is “ ge nerally not available to t est the sufficiency of
the charging inst r ument or to construe the m eaning a nd ap plicat ion of the statute defining the offense charged. ” Ex parte Perry , 483 S.W

. 3d 88 4, 895 (Tex. Crim. App. 2016). B ut an applicant contending that t he statute under which she was char ged is facially u nconstitutiona l may bring such a ch allenge. Id. ; Ex pa r te W eise , 5 5 S.W.3d 617, 620 (Tex. Crim. App. 2001). Usually, a facial

- cons tit utio nality challenge can succeed only if the applicant shows that the l aw is unconstitutional in all its applications

. Ex p a rte Ellis , 309 S.W .3d 71, 79

– 80 (T ex. Crim. A pp. 2 010) ; cf. St a te v. Doyal , 589 S.W.3d 136, 145 (Tex. Crim. App. 2019) ( “ [A] facial vagu eness challenge to a statute4 that implic ates First Amendment freedo ms does not require a showing that ther e are
no poss ible instanc es of conduct clearly f alling with in th e statute ’ s p ro hibitions

. ” ). Analysis
Alth ough a h abeas application is generally not available to construe a statute ’ s meani ng and a pplicat ion, in this in stance we must construe s ubsection (a)(4) ’ s meanin g to determ ine Couch ’ s facial

- cons titutionali ty challenge. See Un ited States v.
Williams , 553 U.S. 285, 29 3, 128 S. Ct. 1830, 1838 ( 2 008)

. Statutory

- construction principles
In con struing statutes, we pre sume that the Legislature intended to comp ly
with the United S t a tes and T e xas Co nstitut ions and to ef fect a j ust an d r eason able
result

. Tex. Gov ’ t Code Ann. § 311. 021(1) , ( 3 )

. When inte r pret ing statutory language,
we focus on the collective intent or purpo se of the legislators who enacted the legislation. Hu ghitt v. State , 583 S.W.3d 623, 62 6 (Tex. Crim. App. 2019)

. To de termine
the Legisl atur e ’ s collective intent , we look first to the l i tera l text , which usually provides the best means to determine its “ fa ir, objective meaning

. . . at the time of its

enactm ent.” Clinton v. St ate , 354 S.W.3d 795, 800 (T ex. Cri m. App . 2 011 )

. We construe
the st atute ’ s words according to their plain mean ing s and gr ammar and usage rules , presuming tha t every word has been used for a purpose and that each word, clause,
and sentenc e should be given effect if reason ably possible

. Hughitt , 583 S.W .3d at 627.
B ut when statutory language is ambi guo us or imposing th e pla in meaning would cause5 an absurd result , we may consider extratext ual factors, such as legislative history

. Clinton , 35 4 S.W.3d at 800.
In the context o f constitutional challenges to statutes, t he Te xas Court of
Criminal Appeals has explained that [t

] he f ed eral constitut i on affo rds the states broad author ity to narrowly
co nstrue a statute to avoid a constitutional violati on. We have held that Texas courts have a duty to employ a rea son able narrowing con struction for that purpose. But this Court and th e Su p re me Court have b oth hel d t hat a narrow ing construc tion should be emp loyed only if the statute is readily susceptible t o one. We may not rewrite a statut e that is not readily subjec t t o a narrowing cons truction because su ch a rewriting constitutes
a s e rio u s invasion of th e legisl ati ve domain an d would shar ply diminish th e l egislatur e ’ s incentive to draft a narrowly tailore d statute in the first place.
We have indicated that a law “i s n ot susceptible to a narrowing constru ction when its meaning is unam b igu o us .” This statem e nt acco rds with our lo ngstanding p ractice of givi ng e ffect to the plain meaning of a statute unless th e language is ambiguous or the pla in meaning leads to absurd r esu lts that the legis lature could not ha ve possibly intended. It also a cco r ds with our more recent sta tements that a statute i s ambiguous if th e statutory language “is reasonably susceptible to more than one understanding.” Ex parte Thompson , 442 S.W.3d 325, 339

– 40 (Tex. Crim. App. 201 4) (footnotes
omit ted). In other word s, i f a n ambiguous statute is c apa ble of a construc t ion that
sustains its validity, we will give the statute that i nterpretati on. See Ex parte Granviel , 561 S.W .2d 503, 511 (Tex. Crim. A pp . 1978 ).6 First Amendment pro tec tions 1
The First Ame ndment protec ts freed om of thought. T ho mp s on , 442 S .W .3d at 338 . Bann ing p rote cted e xpression, such as thought, on a content basis is
unconstit utional. See id. As the Uni t ed States Supreme C ourt has rec ogniz e d , “ The
gover nment ‘ cann ot con stitutionally premise legislat io n o n t he d esir abilit y of controlling a pers on ’ s private thoughts. ’ Fir st Amendment freedoms are most in danger when the governmen t seeks to control thought o r to justify its laws for th at imper m issible end. The right t o thin k is the beginning of freedom

. . . . ” Ash crof t v. F r

ee Speech Coal. , 535 U .S. 234, 253 , 122 S. C t. 13 89, 1403 (2002) (citat ion omitted)

. But

w hen a s tatut e that implic ates protected expression c ontains an in tent element to do something th at , if a cco mplished , would be unlawf ul and outside of First Amendm en t
p rot ection, th e ex i ste nce of that in tent element might allevi ate Fir st Amendment

concerns . Thompson , 442 S.W .3d at 337

– 38. “ [I ]t is the sp ecific type of in te nt that

matters. ” Id. at 3 37.
Penal Code Section 34.02(a) (4)
Sect ion 34.02(a)(4) of the Penal C o d e p rov ides that “ [a] person commi ts an offe nse if the person knowingly [] . . . finances or invests or intends to finance or
inve st funds that the person beli eves are intended to f ur ther th e commissio n of criminal activity. ” Tex. Penal Code Ann. § 34.02(a)( 4). Th is subsecti on s ets forth three

1 Couch ’ s Eight h and Fourteenth Ame ndment a r guments in her sec ond and third points ar e premise d on the same c ontention in her Fi rs t Amen dment argument tha t s ubs ection (a )(4) punishe s thought.7 manner and means of committing th e offense of money laundering 2 : (1) know ingly
financi ng fun ds the p erson believes are i ntended to further the commi ssi on of
crim inal activity; (2) knowingl y investing funds the person be liev es are intended t o further the commissi on of criminal activity; an d (3) knowingly intending to f inance or
invest funds the person beli eves are intended t o furthe r the commission of cri minal
acti vity

. Id. ; cf. Deschen es v . S t ate , 253 S.W.3d 37 4 , 380 ( T ex. App

. –– Amarillo 20 0 8, pet

. ref ’ d) ( descr ibi ng essential e lem ents of money launderin g under Penal Code Sectio n 34.02(a)(1 ) ).

2 Subs ectio n (a ) (4) expand s upon the tradition al definition of money laundering

–– “ the proces s through which the existenc e, illegal sour ce, true ownership, or unlawful a pplication of illicitly d er ived f un ds, proceeds, c urren cy, or cash is conce al ed or disguised to m ake the funds app ear legitimate, there by hel p ing to evade detection, prosecution, s eizure, or taxation ”

–– to i nclude the us e of legitim ately derived f unds for i llegitimate purposes. See T homson R euters, Anti

- Mo ney Laundering Stat utes, 50 State Statutory Surveys: Financial S ervices : General , 0 090 SURVEYS 1 6, Westlaw ( Oct . 20 20 ) ; Mumford v. State , No. 4 34, 2017 , 2018 WL 5096074, at *1 n.22 (De l. Super . Ct . 2018) ( n ot designated for publica ti on ) ( n ot ing that “ the m ost common sen se ” of money laundering is “ th at the proceeds from illegal activities be transformed into other ostensib ly legitimat e assets in order to conceal their orig i n ” )

. The only other state with a sim ilarly worded provision i n its mo ne y
- laundering st atute is Delawar e; its prov ision wa s enacted after Texas ’ s. Del. C ode Ann. tit . 11, § 951( a ) (4) ; s ee Act approved June 30, 2008, c h. 271, 76 De l. L aws (2007

– 2008) , https://delcode.delaware .gov/sessionlaws/ g a144/ index .shtml ; Act of Ma y 30, 200 5 , 79 th Leg., R.S., ch. 1162, § 2, 2005 Tex. Gen. Laws 3802 , 3803

. We ha ve fou nd no Del awar e authority addressing Couch ’ s issue in relation to its money

- laundering sta tu te. But t he federal m one y
- laundering statute contai ns a similar provision pr ov iding for the conviction of a person who “ with the intent to promote the carrying on of specified unlawful activity

. . . conducts or attempts to conduct a financial tran s action involving

. . . property used to condu ct or facilit ate specified unla wful
ac ti vi ty
. ” 18 U.S.C.A. § 1956(a)(2) (A), ( 3)(A).8 Couch ’ s and S tate ’ s contention s C ouch contends that th is e nti re subsect ion of the statute is uncon stitutional
because b y crimin al izin g t he in tent to f i n anc e or invest funds the person believes are
in tended t o further the commission o f crimi nal activity, the subsectio n punishes mere tho ught in violation of the Uni te d States Co nstitu tion

. 3 Couch argues t hat this part of

s ubse ction (a) (4) has two me ns r ea but fails to d efine an actus re u s and instead
pun ish es a person m e rely for forming an inte nt to perform an act

–– a though t rather
than an action

. See Tex. Penal Code An n. § 6.0 1 ( a ) ( “ A person c ommits an offense only if he vol un tarily en gage s in conduct, inc l uding an act, a n omis sion, or possession. ” ) ; Ram ir ez

- Memije v. State , 444 S.W.3d 624, 627 ( Tex. Crim. App. 2014) ( noting that an offens e must have an actus reus ) ; see also Uni ted States v. Sanch ez , 66 7
F.3d 55 5, 561 (5th Cir. 2012) ( “ [T] he actus reus requ irement e xists in orde r to ensure

3 Couch does not challenge the constitutiona lit y of s ubsection ( a)(4) ’ s prohibiti on on knowingly finan cing or k nowingly invest in g funds t hat the person believes are intended to further t he commissi on of crimin al a ct ivit y , nor does she explain why we shou ld hold t he entire subsection unconstitutional an d dismiss all of the indictments beca use of her challen ge to a s ingle de scribed m anner and means of commi tting the offense

. Se e Salinas v. S t ate , 523 S. W.3d 10 3, 11 0 (T ex. Crim. App. 2017) ( “ [I]t is possible for only a portion of a statute to be faciall y u nconstitutional, an d if that is the c ase, the court sho uld inval idate o nl y that p ortion, l eaving the rema inder of the st atute intact, so lo ng as doing so would be f ea si ble. ” ) ; see also Tex. Gov ’ t Code Ann. § 311.032( c) ( providing that when a statute doe s n ot expressly men t ion sever ability or nonsev e rability , a n d any pa rt of “ the stat ut e or its application to any person or circums tance is held invalid, the invalidit y do es not affect other provisions or applica tions of the statute that can be gi ven effect wit hout the invalid provision or application , and to this end the p rovisions of th e statute a re severable. ” )

.9 that a criminal defendant cannot be punished unless he u ndertakes some act in
furtherance of his crimi nal intent

. ” )

. The State co nte n ds th at t he use of the word “ intends , ” which it argue s is a verb

mea ning “ the acting on one’s intent ” instead of a noun signifyin g a mens rea or state of mind , ne cessarily incl ude s some typ e o f “ volun tary condu ct in prep arat ion of
fina ncing or investin g . ” Thus, a cc ord ing to the State, s ubsec tion (a)(4) does not
im plicat e a ny of the cons titutio nal provisions raised by Couch beca use a proper construction of the “ knowingly intend s to finance or in v est ” manne r an d means in
Sectio n 34.02(a)(4) shows that it cri minalizes prep aratory actions taken with criminal
intent rat her than mere th ou ghts. In other word s, the St a te co ntends t hat a proper reading of s ubsection (a)(4) is as foll ows : “ A person c o mmits an o ffen se if the person [ 1 ] knowingly[] [ 2 ] finances or inv ests or . . . [ e ngages in conduct that is mo re than

mere preparat io n to financ e or invest that t en ds but fa ils to effect financing or investing ] [ 3 ] fun ds [ 4

] the person bel iev es ar e intend e d to further t he commission of criminal activity

. ” See Te x. Penal Code Ann. § 1 5.01(a) ( “ A person commits an offense if, with specific intent to com mit an offense, he does an act amounting t o mor e than mere preparatio n that tends bu t fa ils t o effe ct the co mmission of the o ffense
intended. ” ) , (d) ( “ An o f fens e und er th is section is one category lower than the offense attempted , and if the offense attemp ted is a state jail fel ony, the offense is a Cl ass A
misdemeano r. ” ) ( emphasis added) ; se e als o id. § 15 .05 ( “ Attempt

. . . t o co mmit

. . . a preparatory of f

ense defi ned i n this chapter is not an offense. ” )

.10 W e agree with the State that the Leg islature did not intend to punish mere tho ught under Section 34.02(a) ( 4), but we base our con clusion on di fferen t reasoning
than the State ’ s . Section 34.02( a)(4) doe s n ot implicate the Fi rst Amendment We cannot agree with the St ate ’ s plain

- language argume nt. Blac k ’ s Law Dictionary def ines the ver b “ intend ” as “ [t]o have i n mind a fixe d p urp ose to re ach a
desi re d ob jective; to have as one ’ s purpose ” ; “ [t]o co ntemplate that the usual
conseq u ences of one ’ s act will probably or nec es sarily follo w from the act, wh ether or

not those cons eque nces are des ired for their own sa ke; ” o r “ [t] o sign ify or mean. ”
I

ntend , Bla ck ’ s L aw Dictionary (1 1 t h ed. 2019 ). Contrary to the St ate ’ s argument , none of these d efiniti ons des cribes or inc ludes the tak ing of an y action; instead, a ll th ese defi nitions descri be thoughts or a state of mind. For ex ampl e, to use th e f irst
defi nition, t he in dictment s charge Co uch with knowingly “ having in min d a f ixed purpose to reach a desired ob jecti ve, ” i .e., to finance or invest funds to further the
offen se of hi nder ing appreh ension

. Or to u se the second definitio n, t hey charg e h er with know ingly “ c onte mp lat [ ing] that the usual cons equ ence s of [ the ] act [ o f financing or investing fun ds for the purpose of hinderi ng app re hension] will probably or

necess arily follow from [ that] ac t. ” Either way, by alleging th at she kn owi ngly
inte nde d t o finance or inve st fun ds , th e indict ments do not allege any specific ac t

t aken in furtherance of t h e f ormulate d p urpose or objectiv e “ in mi nd ” or

“ contemplate [ d]

. ”11 The Sta te c ites t he definition of intend in the s ixth edition o f Black ’ s Law
Diction ary : “ to design , ” “ to re solve , ” or “ to propose, ” a rguing that these definitions

en compass “ voluntary conduct i n preparat ion of financing or investi ng. ” But whi le
d e signing or p rop osing to do so mething could involve action, it co uld also in vol ve though ts o nly. T he S t ate gives no d escrip tion of what k ind of voluntar y c onduct
would be included in those defi nitions. Thus, we are not c onvinced by the S t ate ’ s plain

- la nguage argument. On the other hand, Couch ’ s i nterpretation

–– that t h e phrase “ knowingly . .

. intends to fi nance or inve st ” unam biguously evidences the contr ary , i.e., an intent to punish the mere for mulation of a thought

–– do es not fit in conte x t with the r emainder
of Penal Co de S ection 34 .02 (a) , w h ich proh ibits numerous lis t ed types of conduct in
furth eran ce of cri minal acti vity

. Nor is it consistent with a p res umption that t he Legislat ure en acted Section 3 4.02(a )(4) wi th ful l knowledge of what the law requ ires ; in this instance, that includes that the law r equires an a c tus re us . See Garcia v. State , 1 12
S. W.3d 839, 846 (Te x. App.

— Houston [14th Dist.] 2003, no pe t.) ( ci ting Acker v. Tex

. Water Comm ’ n , 790 S.W.2d 299, 301 (Tex. 1990) ); You ng v. S t ate , 95 S. W. 3d 448, 451 (Tex. App.

–– Houston [ 1s t Dist. ] 2002, pet. r ef ’ d) (same)

. I n light of th e overall statutory context of Penal Code S ection 34.02(a) , as well

as the pr esumption that the Legislature intended a constitutional a s wel l as a just and

rea sona ble resul t, we conclude that the phrase “ intends t o f inance or invest ” in12 s ub section (a)(4) is ambiguous . Therefore, we employ ext rate xt ual factors to discern leg is l at ive intent. See Clinton , 354 S.W. 3d at 800. The Legislature added s ubsecti on (a )(4) to Sec tion 3 4

. 0 2 i n 2005. The

e ngros sed and enrolled bi ll analys e s describe the ch ange as follows : “ Provides that a
person c o mmits an o ffense if the person knowin gly com mi ts certain actions , inc luding financing or investing or intending t o finance o r invest funds that t he pe rson believes
are i ntended to furthe r the commission of crimina l activity. ” S. Research Ct r., Bill Analys i s , Tex. H. B. 337 6, 7 9t h Leg., R.S. (2 005) (e ng rossed and enro lled ver sion s ) (emphasis added)

. Describin g the amen dment another way , the e nrolled bill summ a ry provides th at “ [t] he bi ll ex pands the offense of money laundering to apply to a pe rson who conduc t s or inten ds to conduct the financing or in v es tment of funds intended for use in criminal activity

. ” Enrolled Bi l l Summary, Tex. H.B. 3376 , 79 th Leg., R.S. (200 5) ( emphasis added)

. T h is history show s that t he L egislatu re was concerne d with punishin g con duct and acti ons ra ther than mere thoug h ts
. We also find gui dance in the Court of Cri minal App eals ’ s construction of the similarly used phras e “ finances or invests ” in Health and S a f ety Code Sectio n 481.126 (a) (the “ illegal investment stat ute ” ) , related to the use of f unds t o facil itate

certa i n drug offen s es . T ex. Health & S a fety Code Ann. § 481.126 (a)

. That s ection
pro vides that a person commits an offense if t he person kn owing ly or intentionally

“ financ es or invests funds the person knows or belie ves are intended to f urther the
commissi on of ” enu merated drug offenses. Id. § 481.126(a)(3), (4). In response to the13 a r gume nt that the illega l investment statute r equire s e vidence of an actual tra nsfer of
f

unds to support conv iction, the Co urt of Criminal Appeals held that “ f inance s or invests ” does not require proo f of a com pleted financial transaction , i.e., an actual
transf er of funds ; instead , it requires a showing only of actions indicating “ t he intent

to fina nce or invest ” f unds for a n illegal drug

- related purpose. Re zap our v. State , 817 S.W.2d 67, 69 (Tex. Cr i m. App. 19 91); Jord an v. State , 816 S.W.2d 89, 91

– 9 2 (Tex

. Cri m . App. 1991) ( “ Although the funds in the ca se be fore us had not changed hands, the money had been ‘ raised ’ and ‘ comm it[ted] ’ by agreement for the purpos e of
g aining possession of co caine. ” ) ; se e also S auceda v. State , 859 S.W.2d 469, 471 (Tex. App.

–– Dalla s 1993, pet. ref ’ d) ( “ It is enough if the fund s were both present at the

s cen e o f the crime an d displayed for the expr ess purpose of pu rchasing the

contr aban d. ” ) ; Tan ner v. S t ate , 838 S. W.2d 302, 3 05 (Tex. App.

–– El Paso 1992, no pet.) ( rejecting argument t hat th e ill egal investment statute is facially overb road

“ because it reaches ex pression s not intended to further t he sale, distribution[ ,] or possession of nar cotics, ” holding that “ [t] he penal pro vision at issue criminalizes only
the con duct of one who in tends to i n vest or finance funds in tended to further the commission of an aggra vated drug of fense ” (emphasis added) )

. In so hol ding, the
court construed the p l ain meaning of “ finance ” to includ e not only t he providing of a certain amount o f identified fund s to purchase illegal drugs but also the raising of
such funds for that p urpose

–– regardles s of whether the raised fun ds were actually expended

–– and it co nstrue d the plain meaning of in vest to i nclude act i ons showing a14 commitment of identified funds for a c ertain p urpose to obtain a financial return

. See Jord an , 816 S.W.2d at 9 2

. In most of the cases construing th e illega l investment statute , the defendants
had v erbally committed to purchase dru g s for a cer tain amount and had arrived at the agreed

- upon locat ion with the agree d

- upon amount but were arrested before the
identified a mount of money an d drugs were exchanged

. See Rezapour , 81 7 S.W.2d at 68; Jordan , 816 S

. W.2d at 90

– 91; Sauceda , 859 S. W.2 d at 470

– 71 ; see also Howard v. State , 890 S.W .2d 514, 516

– 18 ( T ex. App.

–– B eaumont 1994, no pet
. ) ( affirming con viction
of Howa rd as party to illegal inv estment

–– for setting up $47 ,500 drug deal with potential buyers and u ndercover police officer

–– even tho ugh H oward “ himself ha d no money to expend or invest in the pur chase of the 52 pounds of marijuana ” )

. In Jordan , the Cour t of Criminal Appeals rejected t he intermediate court of ap peals ’ s holding that the State had p roven onl y an attempted offense ; instead , it applie d the
defini ti on of finance or invest set forth abov e to hold that the State need only prove
conduct showing that funds were intentional ly or knowingly “ raised ” for or

“ com mitted ” for the proscribed illega l purp ose . 816 S.W.2d at 92. Th us, for p urp oses of the illegal investmen t statute, conduct showin g an i ntent to finance or invest is not merely evidence of an attempted offense. See id.
Presumi ng, as we must, that the L e gi sla ture enacted Section 34.02(a )(4 ) with
kn ow led ge of the Court of Crimina l Appeals ’ s construction of the phrase “ finances or
invests ” in the illegal investment statute, we conclude that the Legislature in cluded the15 phrase “ int ends to finance or invest ” t o foreclose the similar argu ment ma de
reg ard ing the illegal investment stat ute , in oth er words, to make clear that con duct indicating an i ntent to f inance or invest

–– regardless of whether the raised or
committed funds are actual ly ex pended in who le or in part

–– is expressly prohibited by
Sec tion 3 4.0 2(a)(4)

. This construction alig ns with th e l egisl ative in tent and the s tatute ’ s

contex t, defin es an actus reus, and avoids violating the Consti tution. 4
Bec ause Section 34.02(a )(4) is s usc eptible of a constructio n that provides an

actus re us for th e p hra se “ inten ds to finance or inve st, ” we c onclud e that it is n ot unconstitutional for punishing m ere thoughts and, therefore, that i t is not fac ially
unconstitut ional

.

4 The similar p rovis ion in the fe deral money

- laundering st at ut e ex pressly provides that a person is c riminal ly liable if he “ conducts or attempts t o conduct ” a p rohib ited financial transaction. 18 U.S. C.A. § 1956(a)(3) . Thus, the f ederal stat ute likewise does not require an act ual transfe r of funds for criminal l ia bi lity thereunder. See U.S. v. Loehr , 966 F.2d 201, 203 (6t h Cir. 1992) ( “ In order to p rove that a crimina l offense was an attempt within the mea ning of the statute here i n issue, the government must prov e that the ind ividual cha rged intended to engage i n th e pr oscribed criminal activity and that the accused performed an overt act in further ance of the crimina l act proscribed by the statute

. The degree of a defendan t ’ s performance of a substantial act in fur theran ce of the illegal activity is a factual is su e to b e resolved according to the circumstances of each particular case. ” (citation omi tted) )

.16 Conclusion
H aving det erm ined that Section 32.04( a)(4) is not facially un constitution al , we

ov errule Cou ch ’ s three points and affirm the t ri al c ourt ’ s order. /s/ Wade Birdwell
Wade Bi rdwell Ju stice Publish
Delive red : February 25 , 2021