Jackie David Alvarez v. the State of Texas ( 2021 )

Opinion filed September 2, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00305-CR
__________
JACKIE DAVID ALVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 26171A
MEMORANDUM OPINION
Jackie David Alvarez, Appellant, pled guilty to the offense of online
solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021(c), (d), (f) (West
2016). 1 Prior to his guilty plea, Appellant had filed a pretrial application for writ of
1
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 offenses were
committed prior to the amendment’s effective date. See Act of May 5, 2015, 84th Leg., R.S., ch. 61, 2015
Tex. Gen. Laws 1035, 1035–36 (codified at 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 Alvarez was charged, was not amended
in 2015.
habeas corpus in which he sought to obtain habeas corpus relief from the trial court
based upon his contentions that the statute under which he was indicted was
unconstitutional. The trial court held a hearing and denied the relief requested by
Appellant, and we affirmed. On October 14, 2019, Appellant entered his plea of
guilty pursuant to a plea bargain with the prosecutor and approved by the trial court.
Appellant was placed on deferred adjudication community supervision for a period
of two years with a $1,000 fine. In his only issue on appeal, Appellant contends that
Section 33.021, specifically subsections (a), (c), (d), and (f), is unconstitutional for
overbreadth and vagueness under the Constitution of the United States and the Texas
Constitution. See U.S. CONST. amends. I, XIV; TEX. CONST. art. I, § 8. We affirm.
Background Facts
Because this case is a continuation of the same litigation which this court
previously addressed in Alvarez I, we forego an explanation of virtually identical
background facts in this case and instead defer to the facts as set forth in our previous
opinion, supplementing this opinion only with additional relevant facts as needed.
See Alvarez v. State, No. 11-15-00201-CR, 2016 WL 859363, at *1–4 (Tex. App.—
Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not designated for publication)
(Alvarez I).
Analysis
I. Law of the Case
Under the “law of the case” doctrine, the ruling of an appellate court on a
question of law raised on appeal will be considered the law of the case in any
subsequent proceeding unless exceptional circumstances exist, such as where the
court’s earlier decision appears to be clearly erroneous. Howlett v. State, 994 S.W.2d
663, 666 (Tex. Crim. App. 1999). Therefore, “when the facts and legal issues are
virtually identical, they should be controlled by an appellate court’s previous
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resolution.” State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014). This
rule promotes “judicial consistency and efficiency.” Id.The issue presented in this appeal with respect to the constitutionality of
Section 33.021 is substantially the same as the issue we addressed in Alvarez I.2 See
Alvarez I, 2016 WL 859363, at *1–4. Therefore, the law of this case as determined
in Alvarez I is that “[b]ecause . . . Section 33.021(c), even when combined with
former subsections (d)(2) and (d)(3), regulates conduct, we must presume that the
statute is valid and that the legislature has not acted unreasonably or arbitrarily.” Id.at *2 (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)).
Accordingly, just as we determined in Alvarez I, Subsections (c) and (d) of
Section 33.021 “are not unconstitutionally overbroad” and “are not
unconstitutionally vague.” Id. at *3.
The applicable version of subsections (c) and (d), even as combined,
are not unconstitutionally vague and do not forbid solicitations made
with no intent to result in a meeting. . . . Although former subsections
(d)(2) and (d)(3) may not have been models of clarity, we are of the
opinion that a person of ordinary intelligence would have known what
conduct was prohibited by those provisions. Moreover, Alvarez has not
met his burden to show that what remains of Section 33.021 is
unconstitutional in all of its applications and could never be
constitutionally applied to any defendant under any circumstance.
Id. at *3; see Ex parte Wheeler, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d) (concluding that Section 33.021(c) “regulates conduct and
unprotected speech”). We continue to adhere to our holding in Alvarez I.
For the same reasons, Appellant also fails to establish that the terms “minor”
and “believes” under Section 33.021(a) are constitutionally vague or overbroad, as
he now asserts. While Appellant lists subsection (f) as “being challenged here as
2
Similar to the procedural posture of Ex Parte Ingram, “Appellant also claims violations of
counterpart provisions in the Texas Constitution. However, he does not argue that the state constitutional
provisions provide greater or different protection than their federal counterparts. Consequently, we will not
separately address his state constitutional claims.” 533 S.W.3d 887, 891 n.4 (Tex. Crim. App. 2017).
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unconstitutional,” no argument or briefing is included in either Appellant’s brief or
reply brief in support of his appeal based on subsection (f). Failure to brief, or to
adequately brief, such an issue by Appellant effects a waiver of that issue on appeal.
See TEX. R. APP. P. 38.1(h); Gen. Servs. Comm’n v. Little–Tex. Insulation Co.,
39 S.W.3d 591, 598 n.1 (Tex. 2001); Fredonia State Bank v. Gen. Am. Life Ins. Co.,
881 S.W.2d 279, 284–85 (Tex. 1994). Rule 38.1(h) requires both citation to
authority and substantive analysis in regard to an issue. See TEX. R. APP. P. 38.1(h).
Failure to either cite authority or advance substantive analysis waives the issue on
appeal. See Sunnyside Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173
(Tex. App.—Amarillo 2003, no pet.).
Appellant’s sole issue on appeal is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
September 2, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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