# Fourth Court of Appeals **San Antonio, Texas** O PINION N o. 04

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- CR EX PARTE CHRISTOPHER RUBEN ZAVALA From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2012

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- 6759 The Honorable Sid L. Harle, Judge Presiding 1 Opinion by: Rebeca C. Martinez, Justice Sitting: Catherine Stone, Chief Justice R ebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: December 11, 2013 AFFIRMED Christopher Ruben Zavala appeals the denial of his pretrial habeas corpus petition asserting that Penal Code section 33.021(c), which prohibits online solicitation of a minor, is unconstitutional on its face. T EX . R. A PP . P. 31. We affirm the trial court ’s order. A NALYSIS Zavala is charged with three counts of online solicitation of a minor in violation of section 33.021 of the Penal Code. T EX . P ENAL C ODE A NN . § 33.021 (West 2011). The statute provides in relevant part: (b) 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,

1 The Honorable Sid L. Harle is the presiding judge of the 226th Judicial District Court, Bexar County, Texas. The pretrial application for a writ of habeas corpus was re ferred to the Honorable Andrew W. Carruthers, criminal magistrate judge, Bexar County, Texas, who signed the order denying habeas corpus relief.04

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- CR by electronic mail or text message or other electronic message service or system, or t hrough a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor. (c) A person commits an offense if the person, over the Internet, by electro nic 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 int ercourse, or deviate sexual intercourse with the actor or another person. T EX . P ENAL C ODE A NN . § 33.021(b), (c). Count I charges Zavala with violating subsection (c) by knowingly soliciting over the Internet by electronic communication a minor to meet hi m, with the intent that the minor would engage in deviate sexual intercourse and/or sexual intercourse with him. Id. § 33.021(c). Counts II and III charge him with violating subsection (b) on two separate occasions by intentionally communicating over the Internet by electronic communication in a sexually explicit manner with a minor, with the intent to arouse or gratify his sexual desire. Id. § 33.021(b). Subsection (d) of the statute states that 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; or (3) the actor was engaged in a fantasy at the time of commission of the offense.” Id. § 33.021(d). Zavala filed a pretrial habeas corpus petition, asserting t hat the intent element of a section 33.021(c) offense (Count I) is negated by the defense preclusion in subsection (d)(2) which prohibits a defendant from asserting he “did not intend for the meeting to occur” as a defense against a subsection (c) offense. Id. § 33.021(d)(2). Zavala argued that subsections (c) and (d) contradict each other on the intent element, thereby causing the statute to be internally inconsistent and unconstitutional on its face. The trial court referred the matter to the criminal magistrate judge ,

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- CR who held a hearing and denied habeas corpus relief. The magistrate judge found that the statute is constitutional on its face. Zavala brought this interlocutory appeal. The State initially responds that Zavala’s habeas petition is insuf ficient because it does not state that he is illegally restrained in any manner and it is not sworn to by either Zavala or his attorney. See T EX . C ODE C RIM . P ROC . A NN . art. 11.14 (West 2005) (stating requirements for a habeas corpus petition). An applica nt must be illegally restrained in his liberty to be entitled to habeas corpus relief. T EX . C ODE C RIM . P ROC . A NN . art. 11.01 (West 2005); Ex parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). The record reflects that after his indictment and arrest , Zavala was released on bond pending trial. Therefore, Zavala’s liberty is restrained within the meaning of article 11.22 of the Code of Criminal Procedure. T EX . C ODE C RIM . P ROC . A NN . art. 11.22 (West 2005) (defining “restraint”); Ex parte Weise , 55 S.W. 3d at 619. As to the absence of a verification on Zavala’s petition, that defect is not jurisdictional. Ex p arte Golden , 991 S.W.2d 859, 861

- 62 (Tex. Crim. App. 1999) (article 11.14 does not limit habeas corpus jurisdiction, it provides pleading requirem ents). The Court of Criminal Appeals recently reiterated that, in the context of both habeas petitions and motions for new trial, the absence of a verification does not prevent the trial court from acting or the appellate court from reviewing the trial co urt’s action. Druery v. State , No. AP

- 76,833, ___ S.W.3d ___, 2013 WL 5808182, at *7 (Tex. Crim. App. Oct. 30, 2013) (citing Ex p arte Golden , 991 S.W.2d at 861). Therefore, although Zavala’s habeas corpus petition is not properly verified, we are not jur isdictionally barred from considering the merits of the issue addressed by the trial court and raised in this appeal. Particularly where there are no disputed facts and the habeas petition raises an issue that is purely a matter of law, as Zavala’s does, the interests of judicial economy weigh in favor of addressing the merits of the petition even though it is unverified.

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- CR Before we reach the merits of Zavala’s claim, however, we must determine the threshold issue of whether Zavala’s claim is cognizable thr ough a pretrial habeas corpus petition. Ex p arte Ellis , 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). “[A] pretrial habeas, followed by an interlocutory appeal, is an ‘extraordinary remedy,’ and ‘appellate courts have been careful to ensure that a pretrial w rit is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’” Id. (quoting Ex p arte Doster , 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). A pretrial habeas generall y may not be used to challenge the sufficiency of the indictment or to construe the meaning and application of the criminal statute defining the charged offense. Ex parte Ellis , 309 S.W.3d at 79. A pretrial habeas may, however, be used to raise a claim t hat the statute under which an applicant is being prosecuted is unconstitutional on its face. Id. (also stating that pretrial habeas may not be used to bring an as

applied challenge to statute’s constitutionality); Ex parte Weise , 55 S.W.3d at 620. When an applicant contends that a criminal statute is facially unconstitutional, he is contending that there is no valid statute and that the charging instrument is therefore void. Ex parte Weise , 55 S.W.3d at 620. Here, Zavala’s argu ment is that section 33.021 is unconstitutional on its face due to an internal inconsistency within the statutory language. As such, the nature of Zavala’s claim is a facial challenge to the constitutionality of the statute rather than an as

- applied chall enge phrased as a facial challenge. See Ex parte Ellis , 309 S.W.3d at 79

- 80 (noting that party’s mere assertion that challenge to statute’s constitutionality is facial challenge, rather than as

- applied challenge, is not by itself determinative, and court must look to true nature of claim). Zavala asserts that, due to a contradiction between subsections (c) and (d) as to the required intent, the statute is

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- CR unconstitutionally vague in all of its applications. 2 See id. at 80 (citing Washington State Grange v. Washington State Republican Party , 552 U.S. 442, 449 (2008)). Therefore, a pretrial habeas petition is the appropriate procedural vehicle for Zavala’s argument that the statute is facially unconstitutional , and we may reach the merits of the issue. Whe ther a statute is facially unconstitutional is a question of law which we review de novo. Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). In determining the constitutionality of a statute that does not restrict speech based on its content, we begin by presuming the statute is valid, and that the legislature did not act unreasonably or arbitrarily in enacting the statute. Ex parte Lo , ___ S.W.3d ___, No. PD

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- 12, 2013 WL 5807802, at *1 (Tex. Crim. App. Oct. 30, 2013) (noting that subsect ion (c) of section 33.021 restricts conduct, not speech, and that “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection”); Rodriguez v. State , 93 S.W.3d 60, 69 (Tex. Crim. A pp. 2002). Under the principles of statutory construction, we construe the statute according to its plain language, unless the language is ambiguous or the interpretation would lead to absurd results the legislature could not have intended. Williams v. S tate , 253 S.W.3d 673, 677 (Tex. Crim. App. 2008); Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In determining a statute’s plain meaning, we read the words and phrases in context, and construe them according to the rules of grammar and comm on usage. T EX . G OV ’ T C ODE A NN . § 311.011(a) (West 2013). If we can determine a reasonable construction that will render the statute constitutional, we must uphold the statute. Ely v. State , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979); Ex part e Granviel , 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (if statute is

2 Because Zavala only attacks the constitutionality of subsections (c) and (d) of section 33.021, his challenge is limited to Count I of the indictment

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- CR capable of two constructions, one of which sustains its validity, court will apply interpretation sustaining validity). The party challenging the statute has the burden to establish it is unconstitutional. Rodriguez , 93 S.W.3d at 69. We do not agree with the premise of Zavala’s challenge to the constitutionality of the
statute

— that subsections (c) and (d)(2) of section 33.021 are contradictory. According to t he plain text of the statut e, 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. T EX . P ENAL C ODE A NN . § 33.021(c). The prohibited conduct is the act of “soliciting.” Id. Indeed, in analyzing the constitutionality of subsection (b), the Court of Criminal Appeals recently stated that the gravamen of the solicitation

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- a - minor offense defined by subsection (c) is “the conduct of requesting a minor to engage in illegal sexual acts,” as opposed to the “sexually explicit” communication, i.e., speech, prohibited by subsection (b). E x parte Lo , 2013 WL 5807802, at *2. Further, the c ourt examined the 2005 legislative history of th e statute, noting that, “[t]he intent expressed in the bill analyses, the committee hearings, and the floor debate was that the crime of solicitation of a minor on the internet is complete at the time of the internet solicitation, rather than at some later time if and when the actor actually meets the child.” Id. at *5. The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. Id. The requisite intent arises within the con duct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make oth erwise 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 compl eted; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend

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- CR for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. T EX . P ENAL C ODE A NN . § 33.021(d ). Thus, subsection (d) does not conflict with or negate the intent element of the solicitation

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- a - minor offense defined by (c). In contrasting subsection (c) with subsection (b), the c ourt in Ex parte Lo explained that such solicitation

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- a - minor stat utes like subsection (c) have been routinely upheld as constitutional in virtually all states because “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.” Ex parte Lo , 2 013 WL 5807802, at *2 (internal citations omitted). The c ourt also noted that the First Court of Appeals has upheld the facial constitutionality of subsection (c) against a First Amendment

- based challenge. Id. (citing Maloney v. State , 294 S.W.3d 613, 62 5

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— Houston [1st Dist.] 2009, pet. ref’d)). In M aloney , the court rejected arguments that section 33.021(d) violates the First Amendment because it is overly broad in that it prohibits the lawful conduct of engaging in fantasy and unconstituti onally vague in that it fails to define “fantasy.” Maloney , 294 S.W.3d at 625

- 29. C ONCLUSION Based on the foregoing reasons, we conclude that section 33.021(c) and (d) are not contradictory, and that Zavala’s challenge to the facial constitutionality of the statute on that basis is without merit. Thus, Count I of the indictment is valid and we affirm the trial court’s order denying Zavala’s petition for habeas corpus relief. 3

Rebeca C. Martinez, Justice PUBLISH

3 We note that under Ex parte Lo it appears that Counts II and III must be dismissed. Ex parte Lo , 2013 WL 5807802, at *3.

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