Jessica Akins
Understanding the recent Court of Criminal Appeals holding in Ex Parte Lo that struck down a portion of the online solicitation statute as unconstitutional, plus tools for prosecutors in their continued battle against sexual predators
In Fall 2009, a 15-year-old boy received text messages from his former choir teacher. The messages inquired about the victim’s dating life and progressed into specific inquiries about his sex life, particularly with whom he was having sex and how he was having sex. The victim shared very graphic details about his sex life with the 49-year-old defendant, whose replies were also sexually explicit.1
The State believed the defendant possessed the intent to arouse or gratify his own sexual desire, so he was indicted for the third-degree felony of online solicitation of a minor. He filed a pre-trial writ of habeas corpus, claiming the statute was unconstitutional because it was facially overbroad, vague, and violated the dormant commerce clause.2
The Court of Criminal Appeals agreed. On October 30, 2013, the Court issued Ex Parte Lo, a 9-0 decision, holding that §33.021(b) of the Texas Penal Code was overbroad and thus unconstitutional on its face.3 Here is an overview of the issues before the court and some insight into our four-year journey that is Ex Parte John Christopher Lo.
The statute
For his actions, the defendant in Ex Parte Lo was charged with online solicitation of a minor under subsection (b)(1) of §33.021, which states that a person commits an offense if he:
• is 17 years of age or older;
• possesses the intent to arouse or gratify the sexual desire of any person;
• communicates in a sexually explicit manner;
• with a minor (a person younger than 17 years of age);
• over the Internet, by electronic mail, or by text message.4
The legislative history of this statute provides insight into the problems law enforcement agencies face in the ongoing battle to protect children from online predators.5 Proponents of the bill recognized the process of grooming, where predators develop a relationship with their intended victim prior to a sexual assault. The process may start with the predator befriending a child online, developing his trust, and eventually engaging in sexually explicit conversations. Sadly, the result many times is a meeting with the child to solicit sex (oftentimes conduct constituting sexual assault of a child). This statute was enacted to allow law enforcement to stop predators before they have the opportunity to meet and injure the child.
The Court of Criminal Appeals has accepted that grooming is a legitimate subject of expert testimony.6 In doing so, the court held that grooming falls within the scope of behavior of offenders who sexually victimize children, which is a valid field of expertise. The court rejected the notion that empirical data was necessary to establish grooming as a field of expertise. Instead, it focused on the expert’s specialized knowledge gained from personal interviews with inmates convicted of child sex offenses, psychological records of inmates, and an examination of the facts surrounding offenses against children. Numerous other courts, both within Texas and across the nation, have recognized the concept of grooming, contributing to the conclusion that grooming is a well-recognized phenomenon of what certain individuals do to seduce children. It is a common behavior of child molesters.
Miley’s wrecking ball
Timing is everything.
My oral argument in the Court of Criminal Appeals occurred on September 11, 2013. The MTV Video Music Awards (VMAs) had broadcast two weeks earlier, on August 25, 2013. You know the one—where Miley Cyrus twerked her way into being relevant.7 On social media. At the water cooler. And apparently … in my courtroom.
There are nine judges on the Court of Criminal Appeals. They sit in a lengthy semi-circle bench; oral argument at the court involves back-and-forth dialogue between an appellate prosecutor and them. By the time a case is submitted for oral argument, both parties have already briefed the issues, so the court is aware of the State’s position and is prepared to discuss the legal issues.
From the onset, it was clear the judges were concerned with the heightened constitutional standard that applies when content-based speech is restricted. In an effort to appease that concern, I utilized the lower court’s opinion rationalizing this law as narrowly tailored to achieve a compelling State interest, protecting children from online predators.
Judge Cochran, who would later author Ex Parte Lo, inquired whether the State could bring charges against Miley Cyrus for her performance on the VMAs. I had not seen the award show. Honestly, I was not even completely cognizant on the act of twerking. My response to her query was no. Of course not. Miley was twerking to America for reasons unknown. (America is still confused.) But even if her intent was to sell music albums by selling sex, by arousing and gratifying the sexual desires of her fans, it was still a broadcast to millions of people. It was not a personal communication with an individual she knew to be a minor, whereas online solicitation is a victim-oriented offense. We believed the statute was directed at personal interaction, i.e. “one-on-one” speech, initiated by an adult with someone they knew or believed to be a minor, with the intent to arouse or gratify a sexual desire.
And this is where reasonable minds differ.
With regard to this particular element of the offense—“communicates in a sexually explicit manner with a minor”—the State utilized the Code Construction Act by focusing on the plain meaning of the word “with,” as in personally communicating with a specific, named person, as opposed to the scenario where something is broadcast “to” a group of people.8 We believed the law was designed to protect a specific person. But the court was not swayed by this variance.
About this time, the right side of the bench became preoccupied with vampires. Judge Alcala asked me about the application of this statute to books, particularly the cult-favorite vampire series … and then she asked me the name of the series. I instinctively opened my mouth to reply, then clamped my jaw shut. Whoa, she almost got me. I was not about to utter the word Twilight in a court of law, nor would I be revealing my allegiance to Team Edward.9 So I just waited. There were a few moments of vampire discussion among the judges, which was actually quite comical.
After they sorted out the vampire genre, we continued onto hypotheticals regarding risqué art and sexy television ads. There was an overall concern that the statute was too broad, in that it would encompass all kinds of other sexually explicit communication by artists when they produce literature, film, and art.
We did not share the court’s belief that the statute was all-encompassing. In light of the fast-paced, ever-changing world of technology, we were aware there was a crucial need for this law. Children were at risk. I never imagined the court would truly equate artistic expressions provided to society at large with sexually explicit speech directed to a known minor.
I recall feeling frustrated because I was completely unable to steer the conversation back to the safety and welfare of children. But on that day I was reminded of the first lesson in appellate oral advocacy: It doesn’t matter what I want to talk about. It’s not about me. It’s about the court and its concerns. As an advocate, I discuss the law at their leisure. Bottom line: They just didn’t like the statute.
After the conclusion of oral argument, I sat down and looked to State Prosecuting Attorney Lisa McMinn. I recall saying, “What just happened?” She mirrored my look of bewilderment, which slightly eased my pain. There was no question about it. Something major was about to happen.
Ex Parte Lo
On October 30, the Court of Criminals Appeals found that §33.021(b) of the Texas Penal Code was an invalid, content-based regulation on free speech that was not narrowly tailored to achieve the State’s compelling interest in protecting children from sexual predators. The opinion parallels the dialogue of oral argument, that the statute was over-reaching with regard to constitutionally protected sexually explicit speech. With a nod to the vast realm of sexual expression, Judge Cochran listed several famous and popular works of art, suggesting they would fall under the umbrella of prosecution: including the Venus de Milo, Fifty Shades of Grey, “The Tudors,” and Eyes Wide Shut.10
The court specifically held that everything §33.021(b) prohibits and punishes is speech. Everything included in the statute is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected speech.11
But there is some good news. Subsection (c) is still a viable statute.
Luring statute
Under §33.021(c), a person commits an offense if he uses electronic communications to knowingly solicit 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.12
Back in 2009, the First Court of Appeals evaluated constitutional challenges to subsection (c). In Maloney v. State, the First Court rejected defense claims that the statute was overbroad and vague.13 In Ex Parte Lo, Judge Cochran utilized Maloney when highlighting the differences in subsections (b) and (c) of the online solicitation statute.
She first noted that subsection (c) was similar to statutes in other jurisdictions that had been held constitutional, because it included conduct that is not constitutionally protected: requesting a minor to engage in illegal sex acts. She acknowledged that the compelling interest of protecting children from sexual predators is well served by subsection (c), unlike subsection (b).
If you have a constitutional challenge to subsection (c) or a defendant attempts to lump it in with a subsection (b) analysis, be familiar with both Maloney and Ex Parte Lo. Prosecutors should be able to defeat a defense challenge to subsection (c) by handing these cases to the judge.
Another statute
bites the dust
After the opinion in Ex Parte Lo was issued, it came to our attention there was a statutory prohibition that needed to be resolved. Section 402.010 of the Government Code, effective June 17, 2011, directs that a court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after notice of the constitutional challenge and a copy of the petition, motion, or other pleading is provided to the attorney general.14 The Court of Criminal Appeals had not complied with this statute in holding §33.021(b) unconstitutional.
The opinion in Ex Parte Lo was unanimous, 9-0. We felt there was little to no room to urge a motion for rehearing, but as a matter of strategy we decided to challenge the court’s failure to comply with the notification statute. We wanted to get our foot in the door and had two other legal issues we wanted to pursue. And clarification on the notice provision was needed, as some courts were complying by providing notice and some courts were not.
Our attention-grabber worked —sort of. The court denied all three grounds on rehearing and wrote only on the attorney general notice issue. In its opinion on rehearing, the court held that §402.010 of the Texas Government Code was unconstitutional because it violates the separation-of-powers doctrine of the state constitution. With this ruling, the Court of Criminal Appeals was no longer required to give notification to the attorney general.
It is unclear how the opinion on rehearing will affect lower criminal courts and civil courts. In her concurring opinion, Judge Keller indicates the burden of the notification statute is placed on all courts, not just the Court of Criminal Appeals. Stay tuned.
What now?
After much research and discussion, including consultation with Harris County District Attorney Devon Anderson, First Assistant Belinda Hill, and Chief of the Appellate Division Alan Curry, we decided not to file a writ of certiorari in the United States Supreme Court. Due to the unanimity of the holding and our inability to find a similar statute for comparison, we were not confident in our chances for success.
Looking to the future, we concluded the best course of action was to persuade our legislators to amend the statute in the 2015 legislative session. In fact, Ex Parte Lo provides insight into the changes the court would like to see implemented to overcome future constitutional challenges. During this decision-making time, some of the best in our business15 have reached out to our office and offered valuable advice and support. We are truly grateful and look forward to rectifying this situation soon.
But protecting future victims was not the only problem created by this opinion; pending cases were also cast into uncertainty. When Ex Parte Lo was issued in October, we immediately tracked down all of the pending cases where the defendant was charged solely under subsection (b) of §33.021. We first looked to see if the facts would support the elements of another crime, such a possession of child pornography, distributing harmful material to a minor, or the luring statute still intact in the online solicitation statute. If the facts did not support a different offense, we dismissed the case. And obviously, no one in the state should be filing any charges under subsection (b) until the statute has been amended. If another statute is applicable, check the statute of limitations for the new offense. Remember the time during the pendency of an indictment or complaint is not computed in the period of limitation.
A third challenge raised by the holding in Ex Parte Lo concerns past convictions under §33.021(b). After the motion for rehearing was denied in March, we sent letters to approximately 90 defendants convicted under subsection (b), as well as their lawyers, notifying them of the holding in Ex Parte Lo in the event they wanted to take legal action. The majority of these individuals were on community supervision, but some were sentenced to prison.
Some things to be mindful of when your office is evaluating these cases:
• Does the defendant have multiple convictions? This may affect the harm analysis in post-conviction matters.
• Does the defendant have an open warrant? Was the defendant arrested on the original case? Are there any open cases stemming from the original online solicitation case (i.e., motion to revoke probation, motion to adjudicate, failure to register as a sex offender, etc.)? These cases need immediate attention to verify that a capias has not been issued solely on violations stemming from an unconstitutional statute.
• Other considerations include ICE notifications, coordination with probation departments, and coordination with law enforcement agencies that handle sex offender registrations, etc.
We must all remember that, as prosecutors, it is our primary duty not to see that a defendant is convicted, but to see that justice is done.16 Whether we agree with it or not, as the law currently stands, several defendants stand convicted (or placed on deferred adjudication probation) under an unconstitutional statute. It should be our duty to examine each case and determine the best course of action. Other future court decisions may make it clearer how these cases should be treated.
A case to look for
Late in 2013, after the decision in Ex Parte Lo, the First Court of Appeals requested additional briefing on a pending appellate case, Schuster v. State.17 The defendant in Schuster was charged under subsection (b) of the online solicitation statute in 2011 and pled guilty in 2012. He had prior convictions for possession of child pornography and was sentenced to 40 years imprisonment.
Schuster’s trial counsel failed to challenge the constitutionality of the statute. It is well-settled caselaw that a defendant waives a claim of constitutional error when he fails to make an adequate objection at trial. So Schuster’s appellate counsel furthered an ineffective assistance claim for the failure of his trial counsel to challenge the statute. A defendant demonstrates ineffective assistance of counsel by showing his counsel was deficient, which caused him prejudice. In this scenario, the focus is on the first prong of the Strickland v. Washington test, whether counsel’s representation was deficient for failing to question whether the statute was overbroad. Because let’s face it, if it was deficient, the second prong of prejudice would not be hard to show.
The Court of Criminal Appeals has long held that defense counsel is not deficient for failing to object on the basis of an unsettled area of law. And the State argued at the time Schuster pled guilty that the leading authority on this issue was the lower court’s opinion in Lo, holding the statute constitutional.
This is important because Strickland discusses the evaluation of defense counsel’s conduct at the time of the proceeding. The opinion in Schuster will shed light on appellate recourse for defendants prosecuted under this statute.
A big thank-you
For those of you who put your heart and soul into prosecuting crimes against children, a big thank-you. In my opinion, they are the most difficult cases to prosecute—but they can also be the most rewarding.
And to my personal crime fighters, John Wakefield and Kathy Kahle, you continue to inspire me. Thanks for standing by my side when I lost your case. As prosecutors, our duty to protect children never ceases. See you in Austin, 2015.
Editor’s Note: After the publication of this article in the most recent issue of The Texas Prosecutor, the Court of Criminal Appeals considered the issue of whether a defendant who had been convicted of online solicitation of a minor under was entitled to relief under a post-conviction writ of habeas corpus. In a per curiam opinion, the Court granted relief without addressing the reasons for that ruling. Ex parte Chance, WR-81, 136-01, slip op. at *1 (Tex. Crim. App. May 7, 2014). Judge Cochran, joined by Judges Johnson and Alcala, filed a concurring opinion to express their belief that a statute that has been declared unconstitutional is void from inception. Therefore, according to three concurring judges, anyone who has been convicted under the now void provisions of Section 32.021(b) is “innocent” and may obtain an acquittal, whether it is in the trial court, on direct appeal, or in a habeas proceeding. Presiding Judge Keller, joined by Judges Keasler and Hervey, filed a dissenting opinion to express their belief that the possible waiver of a facial constitutional challenge to a statute could suggest relief may not be warranted in all circumstances. According to the dissent, “this case presents important questions regarding the applicability of habeas cognizability rules, the scope of the holding in Karenev, and the meaning of “actual innocence” in this context” so the Court should have explained the answers to these questions in a written opinion. There is a temptation to read the minimalist majority opinion with the vibrant concurring opinion and think the concurring opinion is the actual holding of the case. But it is not at all clear what the basis for relief was. As the dissent notes, other cases raise this issue, so we are likely to get a more thorough opinion soon. Till then, practitioners should be aware of the cases implicated by Lo both past and present so they can be prepared for when that future opinion is issued.
In any event, this opinion was issued too late to appear in the print version of The Texas Prosecutor, but because of the importance of the issues raised by Ex parte Lo we have included this additional note here on the electronic version of the article.
Endnotes
1 Messages from the defendant included: “Did she let u (sic) come inside her?”; “Were you her first?”; “All 3 loads inside her? Any in her mouth or ass?”; “How big r u (sic) anyway?”; and “Did she moan, U r (sic) so big for a sophomore?”
2 A “facial” challenge asserts the statute is unconstitutional on its face, in all applications, whereas an “as applied” challenge pertains to the applicability of the statute to a specific defendant.
3 Ex Parte Lo, No. PD–1560–12, 2013 WL 5807802 (Tex. Crim. App. Oct. 30, 2013).
4 Tex. Penal Code §33.021(b).
5 House Research Organization, Bill Analysis, Tex. H.B. 2228, 79th Leg., R.S. (April 11, 2005).
6 Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011).
7 Urbandictionary.com defines twerking as 1) the act of moving and shaking one’s bottom in a circular, up-and-down, and side-to-side motion, derived from strip club dances; and 2) something that Miley Cyrus should never, ever do.
8 Thank you, John Messinger.
9 Urban Dictionary defines Team Edward as those fans of the Twilight Saga who prefer vampire Edward Cullen to werewolf shape-shifter Jacob Black.
10 Jonathan Rhys Meyers and the curator of the Louvre are equally relieved.
11 The defendant in Ex Parte Lo was charged under subsection (b)(1), which criminalizes sexually explicit communication with a minor. Subsection (b)(2) involves distributing sexually explicit material to a minor. This subsection was also struck down; the court reasoned that distributing harmful material to a minor is already an offense.
12 Tex. Penal Code § 33.021(c).
13 Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
14 Tex. Gov’t Code §402.010(a); Tex. Gov’t Code §402.010(b).
15 Lisa McMinn, John Rolater, and Rob Kepple.
16 Tex. Code. Crim. Proc. art. 2.01.
17 State v. Peter John Schuster, No. 01-13-00039-CR.