Opinion issued June 30, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00736-CR
                           ———————————
                ESSEABASI SAMUEL WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1455285


                                  OPINION

      Appellant, Esseabasi Samuel Williams, pleaded guilty to the offense of

engaging in a group criminal activity, concerning the fraudulent use of identifying

information, with an agreement that punishment would not exceed 30 years in
prison.1 Following a presentence investigation, the trial court found Appellant

guilty and sentenced him to 30 years in prison. In one issue on appeal, Appellant

asserts that the trial court erred in denying his motion to quash the indictment for

fraudulent use of identifying information based on his argument that Texas Penal

Code section 32.51 is facially unconstitutional.

      We affirm.

                                    Background

      On January 22, 2015, Appellant was indicted for working with others to

fraudulently misuse identifying information. The indictment read as follows:

      Esseabasi Samuel Williams, [Appellant], . . . on or about January 23,
      2013, did then and there unlawfully, with intent to establish, maintain
      and participate in a combination, and in the profits of a combination,
      . . . commit the offense of Fraudulent Use of Identifying Information,
      namely, in that he did unlawfully with the intent to defraud and harm
      another, obtain, possess, and use . . . identifying information, namely,
      the name, date of birth, and social security number of [names
      omitted], hereafter called the Complainant, without the Complainant’s
      consent.

      Appellant filed a motion to quash the indictment, asserting Penal Code

section 32.51 is an overbroad, content-based restriction on speech.2 The trial court

denied Appellant’s motion. Following the denial, Appellant pleaded guilty, and


1
      See TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).
2
      Appellant also alleged, in his motion, that the statute is unconstitutionally vague
      and violates the Dormant Commerce Clause, but he does not raise these issues on
      appeal.


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was sentenced to 30 years in prison. Appellant timely filed his notice of appeal the

same day. Appellant now appeals. In one issue, Appellant challenges the trial

court’s denial of his motion to quash the indictment.

                         Motion to Quash the Indictment

A.    Standard of Review

      We review de novo a trial court’s ruling on a motion to quash an indictment.

See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Likewise, we

review the constitutionality of a criminal statute de novo. See Ex parte Lo, 424

S.W.3d 10, 14 (Tex. Crim. App. 2013).

B.    Legal Principles

      In assessing a constitutional challenge, the statute is presumed to be valid

and the challenging party bears the burden to prove its unconstitutionality. Id. at

15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). While a general

facial challenge requires the challenger to show the statute is unconstitutional in all

its applications, under the First Amendment’s “overbreadth” doctrine, a law may

be unconstitutional on its face even if it might have some legitimate applications.

State v. Johnson, 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015).                   The

overbreadth of a statute must prohibit a substantial amount of protected expression

relative to the statute’s plainly legitimate sweep. Ex parte Perry, 483 S.W.3d 884,

902 (Tex. Crim. App. 2016) (citing United States v. Williams, 553 U.S. 285, 292,



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128 S. Ct. 1830, 1838 (2008)). In addition, the danger that the statute will be

unconstitutionally applied must be realistic and not based on fanciful hypotheticals.

Id.

      Additionally, when a criminal law restricts speech based upon content, the

usual presumption of validity is reversed, and the government must rebut the

presumption that a content-based restriction is invalid. Ex parte Lo, 424 S.W.3d at

15. If one must consider the content of the speech to decide if the speaker violated

the law, then the regulation is content-based. Id. at 15 n.12.

C.    Analysis

      Appellant asserts that the trial court erred in failing to quash his indictment

for fraudulent use of identifying information. He contends that Penal Code section

32.51(b), the statute upon which his conviction was based, is an overbroad,

content-based restriction on speech, and therefore violates the right to free

expression of personal views guaranteed by the First Amendment.             See U.S.

CONST. amend. I; TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).

      Appellant acknowledges that this Court recently rejected the same

arguments concerning Penal Code section 32.51 in Horhn v. State, 481 S.W.3d 363

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).3         Consequently, we follow



3
      The Texas Court of Criminal Appeals refused petition in Hohrn on April 27, 2016.
      Horhn v. State, 481 S.W.3d 363 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).


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Horhn and affirm the trial court’s denial of Appellant’s motion to quash the

indictment.

      1.      Penal Code section 32.51

      Appellant     argues   that   Penal       Code   section   32.51(b)   is   facially

unconstitutional. Section 32.51 provides as follows:

      (b) A person commits an offense if the person, with the intent to harm
      or defraud another, obtains, possesses, transfers, or uses an item of:

              (1) identifying information of another person without the other
              person’s consent;

              (2) information concerning a deceased natural person, including
              a stillborn infant or fetus, that would be identifying information
              of that person were that person alive, if the item of information
              is obtained, possessed, transferred, or used without legal
              authorization; or

              (3) identifying information of a child younger than 18 years of
              age.

TEX. PENAL CODE ANN. § 32.51(b). The Penal Code further defines “identifying

information” to mean “information that alone or in conjunction with other

information identifies a person,” including name, date of birth, or government-

issued identification number, among other types of information. Id. § 32.51(a)(1).

The Penal Code also defines “harm” as meaning “anything reasonably regarded as

loss, disadvantage, or injury. . . .” Id. § 1.07(a)(25) (Vernon Supp. 2015).




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      2.    Section 32.51(b) Does Not Implicate the First Amendment and Is
            Not Unconstitutional as Decided in Horhn

      In Horhn, this Court held that Penal Code section 32.51(b) does not

implicate the free speech guarantees of the First Amendment. Horhn, 481 S.W.3d

at 373–74. Initially, we explored the distinction between expressive conduct, such

as photographs and visual recordings, and non-communicative conduct, such as

harassing people by telephone. Id. While expressive conduct implicates the First

Amendment, non-communicative conduct does not. Id. at 373–75. Here, we are

concerned with how prohibited conduct fits into this schema.

      Prohibited conduct can be divided into conduct intended to communicate

and conduct intended to harm or harass. Id. Conduct is intended to communicate,

and implicates the First Amendment protections, “if (1) there was an intent to

convey a particularized message, and (2) the likelihood was great that the message

would be understood by those who viewed it.”          Id. at 373 (citing Ex parte

Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014)).             In other words,

prohibited conduct implicates the First Amendment if the statute proscribes

conduct intended to communicate an understandable message. Id. If, conversely,

the defendant intends their conduct to harm or harass, then the statute focuses on

the non-communicative part of the interaction, or the manner of communication,

even if the conduct includes spoken words. Id. at 374–75 (citing Scott v. State, 322

S.W.3d 662, 669–70 (Tex. Crim. App. 2010), abrogated on other grounds by


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Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). Statutes prohibiting the

harmful manner of communication do not implicate the First Amendment. Id. at

375.

       In Horhn, we ultimately held that Penal Code section 32.51 regulates non-

communicative conduct, which is not protected by the First Amendment. Id. at

375–76. Considering the statute’s language, we held that section 32.51 requires

the specific intent to harm or to defraud and does not specifically reference spoken

words or other communicative conduct. Id. “The type of conduct prohibited by

section 32.51(b)—obtaining, possessing, transferring, or using identifying

information with the intent to harm or defraud—is conduct that is ‘essentially non-

communicative, even if the conduct includes spoken words.’” Id. (quoting Scott v.

State, 322 S.W.3d at 670); see TEX. PENAL CODE ANN. § 32.51(b). The statute

focuses on conduct not to target acts of expression, but to address the harms

resulting from identity theft.   Id. at 366, 375.    Thus, we concluded that the

regulated conduct is essentially non-communicative and does not implicate First

Amendment protections. Id. at 375–76. We further conclude, even if section

32.51(b) did regulate communicative conduct, however, that conduct would not be

protected by the First Amendment because it invades another’s privacy interests to

harm them. Id. at 375.




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      Appellant argues that section 32.51(b) unconstitutionally criminalizes the

use of identifying information in political attacks and for leverage in negotiations.

See TEX. PENAL CODE ANN. § 1.07(a)(25) (defining harm as “anything reasonably

regarded as a loss, disadvantage, or injury.”). He provides the following examples

of conduct that would be prohibited: releasing a birth certificate to prove a

candidate’s ineligibility for office; using voter registration records to prove an

opponent voted in the other party’s primary; providing criminal or bankruptcy

records to the news media; and using a person’s criminal record for concessions in

a divorce proceeding. Contrary to Appellant’s assertion, however, the Court of

Criminal Appeals has recognized that the statute’s purpose is to prevent identity

theft because it is included within the Fraud subchapter of the Texas Penal Code.

Jones v. State, 396 S.W.3d 558, 562–63 (Tex. Crim. App. 2013). The statute’s

purpose is not to criminalize the use of identifying information in political attacks

or for leverage in negotiations. See id. Thus, these examples do not meet the intent

requirement of the statute, which is to harm or to defraud another. See id.; see also

Horhn, 481 S.W.3d at 376.

      Because in Horhn, we concluded that section 32.51(b) does not implicate the

First Amendment, we likewise concluded that the “statute is not overbroad because

it does not reach ‘a substantial amount of constitutionally protected conduct.’” Id.

at 376 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.



                                         8
489, 494, 102 S. Ct. 1186, 1191 (1982); Garcia v. State, 212 S.W.3d 877, 889

(Tex. App.—Austin 2006, no pet.)). We also held that “because section 32.51(b)

does not implicate the First Amendment it is not a content-based restriction on

speech.” Id. (citing Ex parte Thompson, 442 S.W.3d at 334).

      Because he raises the same arguments rejected in Horhn, we conclude that

Appellant failed to show that section 32.51(b) is facially unconstitutional. Horhn,

481 S.W.3d at 376; see also Ex parte Lo, 424 S.W.3d at 15; Rodriguez, 93 S.W.3d

at 69. We hold that the trial court did not err in denying Appellant’s motion to

quash the indictment.

      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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