Ex parte Humphrey

1

EX PARTE ISAAC HUMPHREY, Appellant

Nos. 01-23-00152-CR, 01-23-00153-CR

Court of Appeals of Texas, First District

November 5, 2024

Do not publish. Tex.R.App.P. 47.2(b).

On Appeal from the 183rd District Court Harris County, Texas Trial Court Case Nos. 1785410 and 1785411

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

MEMORANDUM OPINION

PER CURIAM

Appellant Isaac Humphrey appeals from two trial court orders denying his pretrial applications for writ of habeas corpus that challenges the constitutionality of the statutes under which he was charged. See Tex. Penal Code §§ 43.05(a)(2), 20A.02(a)(7)(E). In trial court cause number 1785410, Humphrey was charged with the offense of knowingly compelling a child to commit prostitution. See id. § 43.05(a)(2).

In trial court cause 1785411, Humphrey was charged with the offense of trafficking a child and knowingly causing the trafficked child to engage in prostitution. See id. § 20A.02(a)(7)(E). We affirm.

Procedural history

After appellant was indicted in these two causes, he filed pretrial applications for writs of habeas corpus, arguing that the two statutes with which he was charged were facially unconstitutional because they were overbroad and vague and lacked scienter concerning the child's age.^[1] Humphrey also argued that the statutes were unconstitutional and inherently defective because a child younger than under the age of 18 cannot legally commit the offense of prostitution. The trial court denied the applications and Humphrey filed these appeals.

Analysis

Standard of review

The Texas Court of Criminal Appeals has stated that "[t]here are two types of First Amendment facial challenges: claims that a statute (or part of a statute) is an impermissible restriction on protected speech or conduct and claims that a statute is overbroad because it violates the rights of too many third parties (the 'overbreadth' doctrine)." Ex parte Lowry, 693 S.W.3d 388, 405 (Tex. Crim. App. 2024). "Whether a statute is facially unconstitutional is a question of law that we review de novo." See Ex parte Lo, 424 S.W.3d 10, 14 (Tex Crim. App. 2013). A facial challenge is an attack on the statute rather than the application of the statute to the defendant. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

To successfully establish a facial challenge as an impermissible restriction on protected speech, the appellant must show that the statute would not be valid under any circumstance, or the statute lacks any "plainly legitimate sweep." U.S. v. Stevens, 559 U.S. 460, 472 (2010). "This type of facial challenge is available when a statute restricts or punishes speech based upon its content." Ex parte Duckens, 654 S.W.3d 571, 575 (Tex. App.-Houston [14th Dist.] 2022, no pet.).

A restriction on speech is content-based if it "distinguishes 'favored speech from disfavored speech on the basis of the ideas or views expressed.'" Ex parte Thompson, 442 S.W.3d 325, 345 (Tex. Crim. App. 2014) (quoting Turner Broadcasting Sys., Inc. v. Fed. Comm. Comm'n, 512 U.S. 622, 643 (1994)). "If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based." Thompson, 442 S.W.3d at 345. "Such a regulation may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal." State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App.-Houston [14th Dist.] 2016, pet ref'd). A content-based regulation is presumed invalid and the State bears the burden of rebutting this presumption. See Lo, 424 S.W.3d at 15. A statute that regulates speech based on its content, or is content-based, is subject to the most exacting or strict scrutiny. See id.

A law that "confers benefits or imposes burdens on speech without reference to the ideas or views expressed [is] in most instances content neutral." Turner, 512 U.S. at 643. This type of regulation is accorded intermediate scrutiny and will be upheld if it "promotes a significant governmental interest and does not burden substantially more speech than necessary to further that interest." Stubbs, 502 S.W.3d at 224-25.

1. Speech involved in these statutes is unprotected by the First Amendment

In challenging these two statutes, Humphrey argues both that the statutes are facially unconstitutional because they are impermissible restrictions on protected speech or conduct and that the statutes are overbroad and vague. We first consider whether Humphrey's claims are cognizable in a pretrial application for a writ of habeas corpus. The Court of Criminal Appeals has stated that only certain issues may be raised by pretrial writ of habeas corpus:

Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. This remedy is reserved "for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review." Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in defendant's favor, would not result in immediate release.

Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (citations omitted). A facial challenge to the constitutionality of a statute is cognizable in a pretrial application for writ of habeas corpus "because the charging instrument is void if there is no valid statute." See Lowry, 693 S.W.3d at 404. Thus, we may consider Humphrey's complaints that the statutes are impermissible restrictions on protected speech.

To determine what expressive conduct the statutes cover, we must begin with the plain text of the statutes. See U.S. v. Williams, 553 U.S. 285, 293 (2008). Section 43.05(a)(2) prohibits a person from knowingly "caus[ing] by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense." Tex. Penal Code § 43.05(a)(2).

In the second trial court cause, Humphrey was charged with violating section 20A.02(a)(7)(E), which prohibits a person from knowingly trafficking "a child or disabled individual and by any means causes the trafficked child or disabled individual to engage in, or become the victim of conduct prohibited by" . . . "Section 43.05 (compelling prostitution)." Tex. Penal Code § 20A.02(a)(7)(E).^[2]

A child is defined as a "person younger than 18 years of age." Tex. Penal Code § 20A.01(1). "'Traffic' means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means." Tex. Penal Code § 20A.01(4). The offense of prostitution is committed when a person "knowingly offers or agrees to receive a fee from another to engage in sexual conduct." Tex. Penal Code § 43.02(a).

Humphrey first argues that the two statutes are content-based restrictions subject to strict scrutiny because they prohibit conduct "by any means" that results in a minor committing prostitution. Humphrey argues that these statutes are silent as to time, place, and manner, and are necessarily content-based restrictions.

"Generally, a law is considered to be content based if it distinguishes 'favored speech from disfavored speech on the basis of the ideas or views expressed.'" Thompson, 442 S.W.3d at 345 (quoting Turner Broadcasting, 512 U.S. at 643). "In determining whether a regulation is content-based or content-neutral, we look to the purpose behind the regulation . . . ." Bartnicki v. Vopper, 532 U.S. 514, 526 (2001).

Typically, the regulation will be content-neutral if the regulation "serves purposes unrelated to the content of expression . . . even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

The State labels these statutes as "result-of-conduct" offenses, meaning that a "person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Tex. Penal Code § 6.03(b).^[3] "A person is criminally responsible for the result of the conduct if the result would not have occurred 'but for' the actor's conduct . . . ." Patterson v. State, 46 S.W.3d 294, 301 (Tex. App.-Fort Worth 2001, no pet.) (citing Tex. Penal Code § 6.04).

The State reasons that section 43.05(a)(2) primarily applies to non-expressive conduct. Such conduct was examined in Waggoner v. State, in which the court addressed the meaning of "by any means" language in section 43.05(a)(2). See 897 S.W.2d 510, 512 (Tex. App.-Austin 1995, no pet.).

Although Waggoner did not raise a constitutional argument, he argued that his conduct did not cause the complainant to commit prostitution because there was no proof that he forced, threatened, or acted violently toward her. See id.

The court observed that Texas law offered little guidance on the meaning of causing a minor to commit prostitution "by any means" and looked to an Oregon case construing a similar statute. See id. The Oregon court held that the purpose of the statute was to "provide maximum protection" from the harmful effects of prostitution and was intended to prohibit exploitative conduct by influencing persuading, or prevailing upon the minor that resulted in the minor engaging in prostitution. See id. (citing State v. Wood, 579 P.2d 294, 296 (Ore. App. 1978)). Because Waggoner had provided the minor the opportunity to engage in prostitution, provided the contact and the meeting, negotiated the price, gave the minor a condom and a cell phone, drove her to the location, and gave the security guard of the location the code to enable the minor to enter, the court found these actions fell within the...