Opinion filed June 21, 2018




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-16-00172-CR
                                         __________

                   JIMMIE LEON STURDIVANT, Appellant
                                                    V.
                          THE STATE OF TEXAS, Appellee

                         On Appeal from the 350th District Court
                                 Taylor County, Texas
                             Trial Court Cause No. 11523-D

                          MEMORANDUM OPINION
        Jimmie Leon Sturdivant pleaded guilty to the charge of online solicitation of
a minor under the pre-2015 version of the statute.1 See TEX. PENAL CODE ANN.
§ 33.021(c) (West Supp. 2015).2 Pursuant to a plea bargain agreement, the trial court

        1
         Appellant was charged with knowingly soliciting, over the internet, to meet with a person whom
he believed to be younger than fourteen years of age to engage in sexual intercourse.
        2
          We note that part of Section 33.021 was amended as of September 1, 2015, but that the former
version of that section remains in effect and applies in this case because the alleged offense was committed
prior to the amendment’s effective date. See Act of May 5, 2015, 84th Leg., R.S., ch. 61, 2015 Tex. Gen.
Laws 1036 (codified as an amendment to TEX. PENAL CODE ANN. § 33.021(a)(1), (b), (d), (e)). We note
also that Section 33.021(c), which sets out the offense with which Appellant was charged, was not amended
in 2015. All references in this opinion to Section 33.021 are to the pre-2015 solicitation statute.
deferred a finding of guilt, placed Appellant on deferred adjudication community
supervision for a term of seven years, and imposed a $750 fine.
        Prior to entering his guilty plea, Appellant sought to dismiss the indictment
by filing a pretrial motion to declare Section 33.021(c) unconstitutional under both
the United States and Texas Constitutions. In three issues on appeal, Appellant
asserts that the trial court erred in denying his pretrial motion.                           Specifically,
Appellant asserts that subsections (c) and (d)3 of Section 33.021 are (1) overbroad
in violation of the First Amendment, (2) unconstitutionally vague under the
Fourteenth Amendment, and (3) a violation of the “dormant Commerce Clause.”
See U.S. CONST. amends. I, XIV; id. art. I, § 8. We affirm.
        We note at the outset that the Texas Court of Criminal Appeals recently
addressed the constitutionality of the pre-2015 version of Section 33.021 in three
cases decided after the parties filed their briefs. Ex parte Ingram, 533 S.W.3d 887,
898 (Tex. Crim. App. 2017) (holding that freedom of speech does not extend to
speech proscribed by subsection (c) “because offers to engage in illegal transactions
such as sexual assault of a minor are categorically excluded from First Amendment
protection”); see Ex parte McClellan, 542 S.W.3d 558, 559 (Tex. Crim. App. 2017)
(noting that Ingram held that the pre-2015 version of Section 33.021 is facially
constitutional); Leax v. State, 541 S.W.3d 126, 127–28 (Tex. Crim. App. 2017)
(following Ingram and holding that a constitutional challenge to the “anti-defensive”
provisions of subsection (d) must fail if the record is insufficiently developed on
appeal to show that the provisions would have been invoked against the defendant).



        3
         Subsection (d) of Section 33.021 was amended in 2015. The previous version of subsection (d)
provided as follows: “(d) 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.” See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex.
Gen. Laws 4049, 4050. The practical effect of the 2015 amendment of subsection (d) was the removal of
subsections (d)(2) and (d)(3).
                                                      2
These cases demonstrate that the trial court did not err in denying Appellant’s pretrial
motion challenging the constitutionality of Section 33.021.4
         In his first issue, Appellant asserts that the statute is unconstitutionally
overbroad because it is a content-based restriction on speech that “explicitly
forbid[s] constitutionally protected fantasy speech with no specific intent to commit
an illegal sexual act.” The Court of Criminal Appeals rejected a similar argument
in Ingram. The defendant in Ingram argued that the pre-2015 version of the statute
infringed upon constitutionally protected “age play.” Ingram, 533 S.W.3d at 890–
91. The court in Ingram rejected this overbreadth argument. Id. at 900; see
McClellan, 542 S.W.3d at 559; see also Ex parte Cornwall, 533 S.W.3d 910, 915
(Tex. App.—Amarillo 2017, no pet.). Accordingly, we overrule Appellant’s first
issue.
         Appellant asserts in his second issue that the statute is unconstitutionally
vague because “[p]eople of common intelligence must necessarily guess at the
meaning of Section 33.021.” Appellant bases this assertion on the anti-defensive
provisions in subsection (d). He asserts that the anti-defensive provisions negate the
specific intent element in subsection (c).
         In Leax, the Court of Criminal Appeals addressed a constitutional challenge
to subsection (d) on a direct appeal from a conviction.5 Leax, 541 S.W.3d at 127–
28. The defendant in Leax presented his constitutional challenge in a motion to


         4
         Furthermore, this court has previously held that Section 33.021(c) is not unconstitutionally vague,
overbroad, or a violation of the “Dormant Commerce Clause.” See Alvarez v. State, No. 11-15-00201-CR,
2016 WL 859363, at *2–4 (Tex. App.—Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not designated for
publication); Chapman v. State, No. 11-15-00215-CR, 2016 WL 859366, at *3–4 (Tex. App.—Eastland
Mar. 3, 2016, pet. ref’d) (mem. op., not designated for publication); Radford v. State, No. 11-15-00108-
CR, 2016 WL 859478, at *3–4 (Tex. App.—Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not designated
for publication).
         5
         Ingram and McClellan involved applications for writs of habeas corpus. See McClellan, 542
S.W.3d at 559 (application for a post-conviction writ of habeas corpus); Ingram, 533 S.W.3d at 890 (appeal
from the denial of a pretrial application for writ of habeas corpus).
                                                     3
quash the indictment. Id. at 127. After the trial court denied the motion to quash,
the defendant entered pleas of guilty and pursued a direct appeal. Id. at 127. Thus,
Leax is procedurally analogous to this appeal.
      The court held in Leax that the constitutional challenge to subsection (d) failed
“because the record [was] insufficiently developed on appeal for [the appellant] to
show that any of the anti-defensive provisions in Section 33.021(d) would have been
invoked against him.” Id. at 128. Thus, the court in Leax applied its previous
holding in Ingram to a guilty plea entered after the trial court denied a motion to
quash the indictment. Id.; see Ingram, 533 S.W.3d at 893 (“[T]he fact that a
freestanding anti-defensive issue does not become law applicable to the case until
raised by the evidence means that a constitutional challenge involving such an issue
is one that requires record development to substantiate.”).
      Similar to the record in Leax, the record in this case is devoid of evidence that
the State would have invoked any of the anti-defensive provisions in
Section 33.021(d) against Appellant. Without a record showing that any of the anti-
defensive provisions in Section 33.021(d) would have been invoked against
Appellant, his second issue must fail. See Leax, 541 S.W.3d at 128; see also
McClellan, 542 S.W.3d at 559 n.2 (suggesting ways that the record might reflect the
State would have invoked the anti-defensive provisions). We overrule Appellant’s
second issue.
      In his third issue, Appellant asserts that the statute violates the dormant
Commerce Clause by imposing an undue burden on interstate commerce. As noted
in Ingram, “[t]he Commerce Clause grants Congress the power to regulate
commerce among the states. The Supreme Court has held that this positive grant of
power contains a ‘negative command, known as the dormant Commerce Clause,’
which prohibits certain state regulation with respect to interstate commerce.”
Ingram, 533 S.W.3d at 901 (footnotes omitted). The Court of Criminal Appeals held
                                          4
in Ingram that Section 33.021 does not violate the dormant Commerce Clause
because “any effect the Texas statute ha[d] on legitimate interstate commerce is
incidental, at best, and far outweighed by the compelling state interest the statute
serves.” Id. at 904. Accordingly, we overrule Appellant’s third issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE
June 21, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.6




        6
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      5