NO. 05-16-00004-CR NO. 05-16-00005-CR NO. 05-16-00006-CR IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS ------------------------------------------------------------------------------------------------------EX PARTE WARREN KENNETH PAXTON, JR., APPELLANT. ----------------------------------------------------------------------------------------------------PRETRIAL HABEAS CORPUS APPEALS FROM THE 416TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS ----------------------------------------------------------------------------------------------------STATE’S BRIEF ------------------------------------------------------------------------------------------------------BRIAN W. WICE Bar No. 21417800 440 Louisiana Suite 900 Houston, Texas 77002-1635 (713) 524-9922 PHONE (713) 236-7768 FAX LEAD COUNSEL wicelaw@att.net KENT SCHAFFER Bar No. 17724300 NICOLE DEBORDE Bar No. 00787344 712 Main Suite 2400 Houston, Texas 77002 (713) 228-8500 PHONE (713) 228-0034 FAX COLLIN COUNTY CRIMINAL DISTRICT ATTORNEYS PRO TEM THE STATE OF TEXAS ORAL ARGUMENT REQUESTED IDENTIFICATION OF THE PARTIES Pursuant to TEX.R.APP.P. 38.1(a), this list of all interested parties is provided so the Court’s members can determine if they are disqualified to serve or should recuse themselves from participating in this matter: Complainants: Failure to Register as an Investment Advisor: the State of Texas Securities Fraud: Byron Cook & Joel Hochberg Appellant-Defendant: Warren Kenneth Paxton, Jr. Counsel for the State: Collin County Criminal District Attorney Pro Tem Brian Wice Collin County Criminal District Attorney Pro Tem Kent Schaffer Collin County Criminal District Attorney Pro Tem Nicole DeBorde Counsel for Appellant: Dan Cogdell: co-lead counsel Philip Hilder: co-lead counsel Bill Mateja Terri Moore Heather Barbieri Trial Judge: Honorable George Gallagher Assigned Judge th 416 Judicial District Court Collin County, Texas i TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE AND PROCEDURAL HISTORY . . . . . . 1 SUMMARY OF THE STATE’S RESPONSES TO PAXTON’S ISSUES 2 STATE’S REPLY TO PAXTON’S FIRST ISSUE . . . . . . . . . . . . . . . . . . 5 The trial court did not abuse its discretion in denying Paxton’s first pretrial writ application because § 29(I) of the State Securities Act is a valid statute under which he can be charged. [CR 359]. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. The Doctrine of Cognizability . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. Ex parte Perry Does Not Fortify Paxton’s Cognizability Arguments . . . . . . . . . . . . . . . . . . . . 14 D. Paxton’s First Issue is Not Cognizable on Pretrial Habeas Corpus . . . . . . . . . . . . . . . . . 16 STATE’S REPLY TO PAXTON’S SECOND ISSUE . . . . . . . . . . . . . . . 21 ii The trial court did not abuse its discretion in denying Paxton’s second pretrial writ application because the definition of “Investment Advisor Representative” contained in 29 (P) of the State Securities Act is not unconstitutionally vague. [CR 360]. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Paxton’s Preemption Claim is Not Cognizable on Pretrial Habeas Corpus . . . . . . . . . . . . . . . . . 22 C. Assuming Paxton’s Challenge is Cognizable, it Fails on the Merits . . . . . . . . . . . . . . . . . . . . . 23 1. Paxton’s Burden in Mounting a Vagueness Challenge to § 29(I) . . . . . . . . . . . . . . . . . . . 23 2. § 29(I) is Not Unconstitutionally Void for Vagueness . . 24 STATE’S REPLY TO PAXTON’S THIRD ISSUE . . . . . . . . . . . . . . . . 28 The trial court did not abuse its discretion in denying Paxton’s third pretrial writ application because the grand jury that indicted Paxton was lawfully selected and empaneled. [CR 361; CR 127]. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 B. Paxton’s Complaint is Not Cognizable On Pretrial Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . 31 iii C. The Holding in Ex parte Becker Has Been Eroded by Time and by Intervening Authority From the Court of Criminal Appeals . . . . . . . . . . . . . . . . . . . 32 D. Paxton’s Claim on the Merits is Unsupported and Unsupportable . . . . . . . . . . . . . . . . . . . . . 38 1. The Standard of Review: Paxton’s Extraordinary Burden . . . . . . . . . . . . . . . . . . . 38 2. Judge Oldner Had Judicial Discretion to Call for Volunteers . . . . . . . . . . . . . . . . . . 39 3. Paxton Ignores the Critical Fact That the Panel was Pre-Qualified . . . . . . . . . . . . . . . . . 41 4. The Only State Case Paxton Cites Derails His Argument . . . . . . . . . . . . . . . . . . . . . . 43 5. ’Paxton’s Non-Binding Federal Authority is Distinguishable . . . . . . . . . . . . . . . . . . . . . 44 E. Paxton Cannot Demonstrate Either Harm or Prejudice . . . . 45 STATE’S REPLY TO PAXTON’S FOURTH ISSUE . . . . . . . . . . . . . . 49 The trial court did not abuse its discretion in denying Paxton’s fourth pretrial writ application because § 29(I) of the State Securities Act is not facially overbroad or unconstitutionally vague. [CR 362]. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iv B. The Extraordinary Burden Paxton Must Shoulder in Successfully Mounting an Overbreadth Challenge to § 29(I) 51 1. The State Has Not “Conceded” or “Agreed” that § 29(I) Attempts to Regulate Protected Commercial Speech . . 52 2. The Tripartite Test in Central Hudson Regulates Only Truthful, Non-Deceptive Commercial Speech . . . 53 3. Assuming Central Hudson Applies, the State Has Carried its Burden . . . . . . . . . . . . . . . . . 55 4. Paxton’s “Less Burdensome Alternative” Claim is Untenable . . . . . . . . . . . . . . . . . . 57 C. § 29(I) is Not Unconstitutionally Vague . . . . . . . . . . . . . . . . . 58 1. Paxton’s Burden in Mounting a Vagueness Challenge . 58 2. § 29(I) is Not Unconstitutionally Void for Vagueness . . 58 3. Assuming § 29(I) Requires a Culpable Mental State, the Indictment Alleges Paxton Acted “Knowingly and Intentionally” . . . . . . . . 61 CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 APPENDIX: APPLICATION FOR WRIT OF HABEAS CORPUS AND RELATOR’S BRIEF: EX PARTE TERRY LYNN BECKER v INDEX OF AUTHORITIES PAGE CASES: CASES Anderson Courier Service v. State, 104 S.W.3d 121 (Tex.App.– Austin 2000, pet. dism’d) . . . . . . . . . . . . . . . . . . . . . . 56,57 Armstrong v. State, 811 P.2d 593 (Okla.Cr. 1991) . . . . . . . . . . . . . 26,60 Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) . . . . . 45,46 Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App. 1999) . . . . . . 39,50,59 Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App. 1990) . . . . . . . . . 24,50 Bruner v. State, 463 S.W.2d 205 (Tex.Crim.App. 1996) . . . . . . . . . . . 19 Bynum v. State, 767 S.W.2d 769 (Tex.Crim.App. 1989) . . . . . . . . 53,54 Celis v. State, 354 S.W.3d 7 (Tex.App.– Corpus Christi 2011, pet. grt’d), aff’d on other grounds, 416 S.W.3d 419 (Tex.Crim.App. 2013) 53,54,57 Central Hudson Gas & Electric Corp., v. Public Service Comm’n, 447 U.S. 557 (1980) . . . . . . . . . . . . . . . . . . . . . . . 49,50,52,53,54,55,56 Colten v. Kentucky, 407 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . 25,61 Downer v. Acquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) 10 Duncantell v. State, 230 S.W.3d 835 (Tex.App.– Houston [14th Dist.] 2007, pet. ref’d) . . . . . . . . . . . . . 27,51 Ex parte Baker, 1997 WL 184242 (Tex.App.– Houston [14th Dist.] April 17, 1997, no pet.) . . . . . . . . . . 36 Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,32,33,34,35,36,40,43,46,48 vi Ex parte Bustamente, 137 S.W.2d 29 (Tex.Crim.App. 1940) . . . . . . . 34 Ex parte Doster, 303 S.W.3d 720 (Tex.Crim.App. 2010) . . . . . . 12,16,19 Ex parte Driver, 2014 WL 6602529 (Tex.App. – Houston [1st Dist.] Nov. 20, 2014, pet. ref’d) . . . . . . 37,38 Ex parte Ellis, 309 S.W.3d 71 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,16,19,20,25,27,50,55 Ex parte Flores, ___ S.W.3d ___, 2015 WL 6948828 (Tex.App.– Houston [14th Dist.] Nov. 15, 2015, no pet.) . . . . . . . . . . 60 Ex parte Gentry, 770 S.W.2d 780 (Tex.Crim.App. 1988) . . . . . . . . . . . 33 Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App. 1978) . . . . . . 23,24 Ex parte Kimes, 872 S.W.2d 700 (Tex.Crim.App. 1993) . . . . . . . . . . . . 9 Ex parte Manrique, 40 S.W.3d 552 (Tex.App.– San Antonio 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 54 Ex parte Matthews, 873 S.W.2d 40 (Tex.Crim.App. 1994) . . . . . . 11,36 Ex parte Perry, ___ S.W.3d ___, 2016 WL 738237 (Tex.Crim.App. Feb. 24, 2016) . . . . . . . . . . . . 14,15,16,23,33,36,50,55 Ex parte Perry, 471 S.W.3d 63 (Tex.App.– Austin 2015, pet. grt’d) . . . . . . . . . . . . . . . . . . . . . 14,31,36 Ex parte Peterson, 117 S.W.3d 804 (Tex.Crim.App. 2003) . . . . . . . . . 10 Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App. 1974) . . . . . 19,20 Ex parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986) . . . . . . . . . . 11 Ex parte Richardson, 201 S.W.3d 712 (Tex.Crim.App. 2006) . . 13,34,35 vii Ex parte Schuller, 2015 WL 3658064 (Tex.App. – Dallas June 15, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Ex parte Smith, 185 S.W.3d 887 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15,31,32,33,34,35,37 Ex parte Smith, 152 S.W.3d 170 (Tex.App.– Dallas 2004, pet. grt’d) . 14 Ex parte Weise, 55 S.W.3d 617 (Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13,15,16,19,33,34,35,37 Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App. 2006) . . . . . . . . . . . 9 Ex parte Wilhelm, 901 S.W.2d 956 (Tex.App.– Houston [1st Dist.] 1995, pet. ref’d) . . . . . . . 14,15,32,34,35 Franklin v. State, 693 S.W.2d 420 (Tex.Crim.App. 1985) . . . . . . . . . . 47 Garza v. State, 996 S.W.2d 276 (Tex.App.– Dallas 1999, pet. ref’d) . . 18 Gentry v. State, 770 S.W.2d 780 (Tex.Crim.App. 1988) . . . . . . . . . . . 46 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) . . . . . . . . . 53 Grayned v. City of Rockford, 408 U.S. 104 (1972) . . . . . . . . . . . . . . . . 25 Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) . . . . . . . . . . . 11 Hicks v. State, 630 S.W.2d 829 (Tex.App.– Houston [1st Dist.] 1982, pet. ref’d) . . . . . . . . . . . . . . . . . 46 In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867 (Tex.App.– Beaumont 2000)(orig. proc.) . . . . . . . . . . . . . . . . . . . . . . 35 In re Smith, 333 S.W.3d 582 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . 50 viii In re Texas Windstorm Ins. Ass’n., 417 S.W.3d 119 (Tex.App.– Houston [1st Dist.] 2013, no pet.)(orig. proc.) . . . . . . . . . . 9 J.W. Huber Corp. v. Sante Fe Energy, (Tex.App.– Houston [14th Dist.] 1994, writ den’d) . . . . . . . . . . . . . . . 44 James v. State, 546 S.W.2d 306 (Tex.Crim.App. 1977) . . . . . . . . . . . . 18 Lopez v. State, 253 S.W.3d 680 (Tex.Crim.App. 2008) . . . . . . . . . 50,51 Lucio v. State, 351 S.W.3d 878 (Tex.Crim.App. 2011) . . . . . . . . 45,47,58 McDonald v. State, 911 S.W.2d 798 (Tex.App.– San Antonio 1995, pet. dism’d) . . . . . . . . . . . . . . . . . . . . 10 Morgan v. State, 557 S.W.2d 512 (Tex.Crim.App. 1977) . . . . . . . . 22,27 Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App. 1992) . . . . . . . . . . 39 New York v. Ferber, 458 U.S. 747 (1982) . . . . . . . . . . . . . . . . . . . . . . . 51 O’Quinn v. State Bar of Texas, 763 S.W.2d 397 (Tex. 1988) . . . . . 56,57 Osborne v. Ohio, 495 U.S. 103 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Parks v. State, 330 S.W.3d 675 (Tex.App.– San Antonio 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 10 Perkins v. State, 902 S.W.2d 88 (Tex.App.– El Paso 1995, pet. ref’d) . 43 Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008) . 55 Robinson v. State, 244 S.W. 599 (Tex.Crim.App. 1922) . . . . . . . . . . . . 44 S & D Trading Academy, LLC v. AAFIS, Inc., 336 Fed.Appx. 443 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . 24,58 ix Sabine Consol., Inc. v. State, 806 S.W.2d 553 (Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 27 Sarnoff v. American Home Prods. Corp., 798 F.2d 1075 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Saenz v. State, 474 S.W.3d 47 (Tex.App.– Houston [14th Dist.] 2015, no pet.) . . . . . . . . . . . . . . . . . 42 State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011) . . . . . . . . . . . . . 41 State v. Holcombe, 187 S.W.3d 496 (Tex.Crim.App. 2006) . . . . . . . . . 59 State v. Johnson, 475 S.W.3d 860 (Tex.Crim.App. 2015) . . . . . . . . . . 51 State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App. 2005) . . . . . . . . 10,39 State v. Nayeb, 2016 WL 165686 (Tex.App.– Dallas Jan. 13, 2016, no pet.) . . . . . . . . . . . . . . . . 23,27,60 State v. Ross, 32 S.W.3d 853 (Tex.Crim.App. 2000) . . . . . . . 5,11,28,42 Stewart v. State, 686 S.W.2d 118 (Tex.Crim.App. 1984) . . . . . . . . . . . 44 Thomas v. State, 919 S.W.2d 427 (Tex.Crim.App. 1996) . . . . . . . . 19,60 United States v. Branscome, 682 F.2d 484 (4th Cir. 1982) . . . . . . . . . . 44 United States v. Gometz, 730 F.2d 475 (7th Cir. 1984)(en banc) . . 39,40 United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977) . . . . . . . . . . . 44 United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . . . . . . . . . . 25 Watson v. State, 369 S.W.3d 865 (Tex.Crim.App. 2012) . . . . . . . . . . . 59 x STATE SECURITIES ACT: ACT Sec. 4(P) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Sec. 29(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim RULES OF EVIDENCE: EVIDENCE Rule 201(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,18 Rule 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CODE OF CRIMINAL PROCEDURE: PROCEDURE Art. 19.25(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,42 Art. 19.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PENAL CODE: CODE Sec. 6.02(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Sec. 6.02(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 FEDERAL RULES OF APPELLATE PROCEDURE: PROCEDURE Rule 28(a)(8)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 UNITED STATES CONSTITUTION: CONSTITUTION AMEND. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,56 MISCELLANEOUS: MISCELLANEOUS LaFave & J. Israel, CRIMINAL PROCEDURE (2nd ed. 1992) . . . . . . . . . . 11 www.sec.gov/news/press/2011/2011-133.htm (last visited 3-1-16) . . . . 8 xi STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX.R.APP.P. 39.1(d), the State believes oral argument will significantly aid this Court in the decisional process. STATEMENT OF THE CASE AND PROCEDURAL HISTORY Paxton was indicted for the third-degree felony offense of rendering services as an investment adviser representative without being registered by the State Securities Board in violation of §29(I) of the State Securities Act on July 7, 2015.1 (CR2 15-16). Paxton was indicted for the first-degree felony offenses of securities fraud in violation of §29(C) of the State Securities Act on August 18, 2015.3 (CR 11-12). On December 1, 2015, the trial court held a hearing on Paxton’s four pretrial writ applications.4 (2 RR 9-241). On December 12, 2015, the trial 1 Trial court cause number 416-81913-2015; this Court’s cause number 05-16-0004-CR. On November 20, 2015, the State filed a Motion for Leave to Amend the Indictment. (CR 350). On December 21, 2015, the trial court granted the State’s motion. (CR 363) 2 “CR” refers to the electronic Clerk’s Record. “RR” refers to the electronic Reporter’s Record from the December 1, 2016 pre-trial hearing. “AB” refers to Appellant’s Brief. 3 Trial court cause numbers 416-82148-2015 and 416-82149-2015; this Court’s cause numbers 05-16-0005-CR and 05-16-0006-CR, respectively. Because the pagination of the Clerk’s Record in each cause number is identical, all references apply to both cause numbers. On November 20, 2015, the State filed a Motion for Leave to Amend the Indictments. (CR 115). On December 21, 2015, the trial court granted the State’s motion. (CR 128). 4 The trial court also heard argument on Paxton’s motions to dismiss and motions to quash the indictments, all of which were denied on December 12, 2015. 1 court entered written orders denying relief in all of Paxton’s pretrial writ applications. (CR 359-362; CR 127). Paxton timely filed Notices of Appeal on December 31, 2015. (CR 363; CR 129). On January 7, 2016, the trial court entered a written order staying all further proceedings. (CR 367; CR 131). The State challenges all factual assertions made by Paxton in his brief. Pursuant to this Court’s order, the State’s brief is timely if filed by March 14, 2016. SUMMARY OF THE STATE’S RESPONSE TO PAXTON’S ISSUES 1. The trial court did not abuse its discretion in denying Paxton’s first pretrial writ application because §29(I) of the State Securities Act is a valid statute under which he can be charged. This issue is premised on Paxton’s fact-laden assertion that he was not subject to state oversight because Mowery Capital Management, the company for whom he worked, was “dual registered” with the State Securities Board and the Securities and Exchange Commission. Because this issue tests the sufficiency of the evidence, seeks to construe the meaning and application of § 29(I) defining the offense of acting as an Investment Advisor Representative without being registered with the State Securities Board, and its resolution would 2 be aided by the development of a record at trial, Paxton’s first issue is not cognizable on pretrial habeas corpus. 2. The trial court did not abuse its discretion in denying Paxton’s second pretrial writ application because the definition of “Investment Advisor Representative” embodied in §29(P) of the State Securities Act is not unconstitutionally vague and has not been preempted by federal law. The core component of Paxton’s vagueness challenge – §4(P)’s definition of “Investment Advisor Representative” has been preempted by federal law – is not cognizable on pretrial habeas because it tests the sufficiency of the evidence, attempts to construe the meaning and application of both §§29(I) and 4(P), and would be aided by the development of a record at trial. Even if Paxton’s vagueness challenge to §29(I) is cognizable, he fails to shoulder his burden of demonstrating that he is entitled to relief on the merits. 3. The trial court did not abuse its discretion in denying Paxton’s third pretrial writ application because the grand jury impaneled by Judge Chris Oldner that indicted Paxton was not improperly selected. Because the precedential value of the one case that supports Paxton’s argument that this issue is cognizable on pretrial habeas corpus, has been called into 3 question by a line of decisions from the Court of Criminal Appeals over the past decade, severely limiting the types of issues cognizable on pretrial habeas, and because sustaining this claim would not preclude the State from re-indicting Paxton, this issue is not cognizable. Even if this issue is cognizable, Paxton has failed to shoulder his burden of proving that Judge Oldner abused his discretion in calling for volunteer grand jurors, or that this manner of selection caused him to suffer harm or prejudice. 4. The trial court did not abuse its discretion in denying Paxton’s fourth pretrial writ application because § 29(I) of the State Securities Act is not facially overbroad or unconstitutionally vague. Because Paxton’s conduct involves the regulation of false and misleading speech, his “asapplied” overbreadth challenge is not cognizable on pretrial habeas corpus, and the State was not required to meet the three-part mandate in Central Hudson. The State has a substantial interest in the regulation of Investment Adviser Representatives required by § 29(I), this provision directly and materially advances the State’s interest, and it is narrowly tailored to advance that interest. Section 29(I) is not unconstitutionally vague merely because it fails to define the term “solicit,” which is so wellknown as to be understood by persons of ordinary intelligence. 4 STATE’S REPLY TO PAXTON’S FIRST ISSUE The trial court did not abuse its discretion in denying Paxton’s first pretrial writ application because § 29(I) of the State Securities Act is a valid statute under which Paxton can be charged. [CR 359]. STATEMENT OF FACTS Viewed in the light most favorable to the trial court’s ruling, State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000), the evidence adduced below tended to show the following: Omitting the formal parts, the amended indictment5 charging Paxton with violating § 29(I) of the State Securities Act6 [“SSA”], alleges that he did then and there: knowingly and intentionally render services as an investment advisor representative to James and Freddie Henry for compensation by advising James and Freddie Henry, directly or indirectly, on behalf of an investment adviser, namely, Mowery Capital Management, and the aforesaid WARREN KENNETH PAXTON, JR., JR. was then and there not duly registered as an investment adviser representative by and with the Securities Commissioner of the State of Texas, as required by the Texas State Securities Act. 5 On November 20, 2015, the State filed a Motion for Leave to Amend the Indictment. (CR 350). On December 21, 2015, the trial court granted the State’s motion. (CR 363) 6 “Any person who shall: Render services as an investment adviser or an investment adviser representative without being registered as required by this Act shall be deemed guilty of a felony of the third degree.” 5 (CR 352). Omitting the formal parts, the amended indictment alleges in the second paragraph that Paxton did then and there: knowingly and intentionally render services as an investment advisor representative to James and Freddie Henry for compensation by soliciting James and Freddie Henry, directly or indirectly, on behalf of an investment adviser, namely, Mowery Capital Management, and the aforesaid WARREN KENNETH PAXTON, JR., JR. was then and there not duly registered as an investment adviser representative by and with the Securities Commissioner of the State of Texas, as required by the Texas State Securities Act. (CR 353). Paxton entered into a Disciplinary Order with the State Securities Board [“SSB”] on April 30, 2014.7 (CR 238-42). In this order, Paxton admitted acting as an investment adviser representative [“IAR”] of Mowery Capital Management [“MCM”] in 2004, 2005, and 2012, while Paxton was not registered by the SSB to do so. (CR 239). Finding of Fact No. 3 in this Order, one agreed to by Paxton, and his then-legal team, provided as follows: 3. MCM is located in Texas and is a registered investment 7 The trial court took judicial notice of both parties’ pleadings and attached exhibits and admitted them in evidence. (2 RR 56). 6 adviser. From October 13, 2004 to November 6, 2008, MCM was registered with the Securities Commissioner as an investment adviser. In November 2008, MCM transitioned from state registration to federal registration. To that end, on November 6, 2008 MCM registered as an investment adviser with the U.S. Securities and Exchange Commission. On June 25, 2012, MCM transitioned back to state regulation and is currently registered as an investment adviser with the Securities Commissioner. (CR 238)(emphasis added). Pursuant to TEX.R.EVID. 201(b)(2)8 and 202,9 this Court may, and the State now asks it to, take judicial notice that financial advisers such as MCM, that managed between $25 million and $100 million in assets, were required to file a Form ADV on or before June 28, 2012, reporting that they were no longer eligible to remain registered with the SEC and were obligated to complete their transition to state regulation. As the SEC pointed out in a press release, “Advisers registered with the [SEC] will have to declare that they are permitted to remain registered in a filing in the first quarter of 2012, and those no longer eligible for [SEC] 8 “This rule governs only judicial notice of adjudicative facts ... not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” 9 “A court upon its own motion may, or upon the motion of a party, shall take judicial notice of the ... rules [or] regulations ... of the United States.” 7 registration will have until June 28, 2012 to complete the switch to state registration.”). www.sec.gov/news/press/2011/2011-133.htm (last visited March 1, 2016). On May 1, 2003, SB 1060 passed the Texas House on its third reading, making acting as an IAR without being registered by the SSA, a “criminal offense,” punishable as a third-degree felony. (CR 250-51). Paxton was one of 142 members who unanimously voted for it. (CR 250). ARGUMENT AND AUTHORITIES Paxton avers that he cannot be charged with the third-degree felony offense of acting as an investment adviser representative [“IAR”] without being registered to do so as required by § 29(I) of the State Securities Act [“SSA”]. Paxton claims that “merely failing to register is not a crime and investment adviser representatives for federal [sic] covered investment advisers are excluded from the [Texas] registration requirements.” AB 5. Because the investment advisor with whom he worked, Mowery Capital Management [“MCM”] was registered with the Securities and Exchange Commission [“SEC”] on July 18, 2012, the date alleged in the indictment through October 12, 2012, Paxton argues that he had no duty to register in Texas with the SSB as required by the SSA. AB 7-8. 8 As recounted below, Paxton’s complaint not only seeks to test the sufficiency of the evidence, it attempts to construe the meaning and application of § 29(I) defining the third-degree felony offense of acting as an IAR without being registered with the SSB. Moreover, the resolution of Paxton’s claim that he is not subject to prosecution under § 29(I) is one that would be aided by the development of a record at trial. Accordingly, Paxton’s first issue is not cognizable on pretrial habeas. A. The Standard of Review10 In a pretrial habeas proceeding, the applicant bears the burden of establishing his entitlement to relief. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App. 1993). In reviewing a trial court’s decision granting or denying habeas corpus relief, this Court must uphold it unless the trial court’s ruling was an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 10 Conspicuous by its absence in Paxton’s brief is any reference to, let a discussion of, the deferential standard of review informing this Court’s resolution of his four issues seeking pretrial habeas relief. The importance of the standard of review that governs the resolution of any contention on appeal cannot be overstated, and has been recognized by Texas appellate courts, see In re Texas Windstorm Ins. Ass’n., 417 S.W.3d 119, 141 (Tex.App. – Houston [1st Dist.] 2013, no pet.)(orig. proc.)(Jennings, J., dissenting)(citation omitted)(standards of review “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.”), and their federal counterparts. See FED.R.APP.P. 28(a)(8)(B)(requiring the appellant’s brief to contain “a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues)”). 9 317, 324 (Tex.Crim.App. 2006). A ruling is not an abuse of discretion so long as it is not arbitrary or unreasonable, State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005), or “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” McDonald v. State, 911 S.W.2d 798, 800 (Tex.App.– San Antonio 1995, pet. dism’d). The trial court does not abuse its discretion merely because this Court would have decided these issues differently. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)(“The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.”). The trial court’s rulings will be upheld if correct on any theory of law applicable to the case. Parks v. State, 330 S.W.3d 675, 679 (Tex.App.– San Antonio 2010, pet ref’d). This Court reviews the facts in the light most favorable to the trial court’s ruling and also defers to the trial court on its application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003). Where, as here, the trial court files no 10 findings of fact, this Court assumes the trial court made implicit findings of fact that support its ruling as long as those findings are fairly supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Legal conclusions and the application of standards of review are reviewed de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). B. The Doctrine of Cognizability “The final judgment rule, as applied to both civil and criminal trials, reflects a determination that, on balance, postponing appeal until a final judgment is reached both protects the interests of the litigants in a fair and accessible process and conserves judicial resources.” Ex parte Matthews, 873 S.W.2d 40, 44 (Tex.Crim.App. 1994)(Campbell, J., dissenting), citing W. LaFave & J. Israel, CRIMINAL PROCEDURE § 27.2, at 1138 (2nd ed. 1992). Because of the importance of the final judgment rule to the orderly and efficient administration of justice, it should be subject to exception only where the protection of the defendant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review. Id. at 1140; see also Ex parte Rathmell, 717 S.W.2d 33, 48 (Tex.Crim.App. 1986)(interlocutory appeals generally not permitted in Texas criminal proceedings). 11 Consistent with these principles, the Court of Criminal Appeals has long held that because the writ of habeas corpus is an extraordinary writ, neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App. 2001). Consequently, as this Court recognized in its January 6, 2016, order,11 “whether a claim is even cognizable on pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be resolved.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App. 2010). “If a non-cognizable claim is resolved on the merits in a pretrial habeas appeal, then the pretrial writ has been misused...” Id. Given the strict limitations on those issues that may be properly raised in a pretrial writ, the Court of Criminal Appeals has held that appellate courts must be vigilant “to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.” Ex parte Doster, 303 S.W.3d 720, 724 (Tex.Crim.App. 2010). This Court has recognized the Court of Criminal Appeals’ movement to “draw stricter 11 Ex parte Warren Kenneth Paxton, Jr., Order at 2 (entered Jan. 6, 2016)(“In addition to addressing the issues on the merits, each party shall address the cognizability of each claim by pretrial habeas corpus application.”). 12 boundaries regarding what claims may be advanced on habeas.” Ex parte Schuller, 2015 WL 3658064 at *2 (Tex.App.– Dallas June 15, 2015, pet. ref’d)(not designated for publication), citing Ex parte Richardson, 201 S.W.3d 712, 713 (Tex.Crim.App. 2006). In determining if an issue is cognizable on pretrial habeas, the Court of Criminal Appeals has looked to a number of factors: We have looked at whether the alleged defect would call into question the trial court’s power to proceed. Along these same lines, we have found that a pretrial writ application is not appropriate when resolution of the questions presented, even if resolved in favor of the applicant, would not result in his immediate release. We have held that an applicant may use pretrial writs to assert his or her constitutional protections with respect to double jeopardy and bail. We reasoned that these protections would be effectively undermined if these issues were not cognizable. Conversely, we have held that an applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial, challenge a denial of a pretrial motion to suppress, or make a collateral estoppel claim that does not involve a double jeopardy violation. These issues are better addressed by a post-conviction appeal. Pretrial habeas should be 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 appeal. Ex parte Wiese, 55 S.W.3d at 619-20 (footnotes omitted); see also Ex parte Smith, 185 S.W.3d 887, 892 (Tex.Crim.App. 2006)(pretrial habeas limited to those situations where accused challenges State’s power to restrain him 13 at all, the manner of his pretrial restraint, or those issues, which if meritorious, would bar any further prosecution or conviction12); Ex parte Wilhelm, 901 S.W.2d 956, 957 (Tex.App.– Houston [1st Dist.] 1995, pet. ref’d)(pretrial habeas reserved for those issues which, if sustained, “would have totally barred prosecution. Even if appellants’ points of error were sustained, it would not stop the prosecution of their cases.”). C. Ex Parte Perry Does Not Fortify Paxton’s Cognizability Arguments Just two days after Paxton’s brief was filed, the Court of Criminal Appeals handed down its plurality13 decision in Ex parte Perry, ___ S.W.3d ___, 2016 WL 738237 (Tex.Crim.App. Feb. 24, 2016), dismissing indictments against former Texas Gov. Rick Perry.14 Any argument that Perry provides additional traction on the cognizability of one or more of 12 In Smith, the Court of Criminal Appeals affirmed this Court’s decision that because an in pari materia claim is not ripe for review prior to a trial on the merits, it is not cognizable on pretrial habeas. Ex parte Smith, 152 S.W.3d 170, 172 (Tex.App.– Dallas 2004, pet. grt’d). 13 Judge Keller’s opinion in Part II(B)(3), concluding that Perry’s “as applied” challenge to count I of the indictment was cognizable on pretrial habeas, was joined by Judges Alcala and Yeary. Judge Newell authored an opinion concurring in the judgment joined by Judges Keasler and Hervey. 14 The Court affirmed the court of appeals’ decision dismissing the charge of coercion of a public official and reversed the court of appeals’ decision declining to dismiss the charge of abuse of office. Ex parte Perry, 471 S.W.3d 63, 87, 125-126 (Tex.App.– Austin 2015, pet. grt’d). 14 Paxton’s issues on pretrial habeas is clearly unwarranted.15 First and foremost, the Court reaffirmed its deeply-felt beliefs that: C “Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy ... 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.” C “Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant’s favor, would not result in his immediate release.”16 C “[P]retrial habeas is generally not available to test the sufficiency of the charging instrument or to construe the meaning and application of the statute defining the offense charged.” Id. at __; at *6 (citations and footnotes omitted). As set out below, viewed through this lens, all but one of Paxton’s issues are not cognizable. Second, to be certain, in sustaining Perry’s challenge to the validity of the indictment that charged misuse of public office, the Court retreated from its long-standing precedent that an applicant’s “as applied” challenge to the constitutionality of a criminal statute is not cognizable in a pretrial 15 That the holding in Perry provides no additional traction on the merits of any of Paxton’s overbreadth and void-for-vagueness claims is discussed in detail below. 16 Of course, as Ex parte Smith, Ex parte Wiese, Ex parte Wilhelm, and their progeny make clear, “immediate release” necessarily requires that any further prosecution be barred for a pretrial habeas claim to be cognizable. 15 writ.17 But the Court’s plurality holding is clearly limited to the facts of Perry’s case: “Pretrial habeas is an available vehicle for a government official to advance an as applied separation of powers claim [exercising his right to veto legislation] ... that alleges infringement of his own power as a government official.” Id. at ___; at *8. Because Paxton’s issues do not fall within the carefully-crafted penumbra of the “as applied” challenge in Perry, Paxton’s cognizability arguments find no safe harbor in its holding. D. Paxton’s First Issue is Not Cognizable on Pretrial Habeas Corpus The Court of Criminal Appeals has held that an applicant’s claim is not cognizable on pretrial habeas if it seeks to test the sufficiency of the evidence, Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App. 2001); seeks to construe the meaning and application of the statute defining the offense charged, Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App. 2010); or where the resolution of a claim would be aided by the development of a record at trial. Ex parte Doster, 303 S.W.3d 720, 724 (Tex.Crim.App. 2010). This contention, contrary to Paxton’s assertions, falls within all three of these 17 “And we have said that pretrial habeas is unavailable ‘when the resolution of a claim may be aided by the development of a record at trial.’ The court of appeals relied on these statements to hold that Governor Perry could not litigate his as-applied claims before trial. We conclude, however, that the nature of the constitutional right at issue entitles him to raise these claims by pretrial habeas.” Id. at ___; at *6. 16 limitations and, accordingly, is not cognizable on pretrial habeas. As a threshold matter, Paxton’s entire argument is premised on his self-serving and inherently contradictory assertion that because MCM was federally registered on July 18, 2012, even though it was also subject to state registration, he was not required to register as an IAR as mandated by § 29(I) of the SSA. AB 9-10. While he claims there is “uncontroverted evidence” MCM was federally covered on July 12, 2012, AB 9, Paxton turns a blind eye to the Disciplinary Order he entered into with the SSB that is itself “uncontroverted evidence” MCM “transitioned back to state regulation and is currently registered as an investment adviser with the Securities Commissioner.” (CR 238). While Paxton contends this Court “may assume [as] true” that MCM was “federally registered on July 18, 2012, and continued to be federally covered until October 11, 2012,” AB 11, he provides no reason – other than his own self-styled theory of “dual registration” – why this Court may assume these “facts” as true. Subsumed within the “facts” Paxton insists this Court “may assume are true” are the following questions which he declines to address: C Did MCM’s purported “dual registration” with the SEC and the SSB absolve Paxton from registering as an IAR in Texas as required by the SSA? 17 C Given that the Dodd-Frank Act and its requirements that financial advisers who managed between $25 million and $100 million in assets, were required to file a Form ADV by June 28, 2012, reporting that they were no longer eligible to remain registered with the SEC and were obligated to complete their transition to state regulation by June 28, 2012, was MCM’s alleged “dual registration” a violation of both federal law under Dodd-Frank and state law under the SSA? C Was MCM’s ploy in waiting until October 11, 2012 to transition to state registration – some four months after Dodd-Frank required it to transition back to state registration – a legally-illusory maneuver that did not insulate Paxton from regulation as an IAR in Texas? Paxton’s assertions notwithstanding, none of the answers to these fact-intensive questions are subject to judicial notice because none are the types of adjudicative facts that can be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned” that fall within the ambit of Rule 201(b)(2). See James v. State, 546 S.W.2d 306, 310 (Tex.Crim.App. 1977)(rule of judicial notice limited only to those facts “about which there is really no controversy”); Garza v. State, 996 S.W.2d 276, 280 (Tex.App.– Dallas 1999, pet. ref’d)(because “[r]eliance on judicial notice rather than the normal requirements of proof must be justified by a high degree of indisputability,” trial court erred in taking judicial notice of facts from co-defendant’s trial). Moreover, Paxton contends that he was not required to register with the SSB as an IAR in the face of § 29(I), 18 doubling down on his “dual registration” argument. But this argument is, in reality, a thinly-veiled attack on the sufficiency of the evidence, one construing the meaning and application of the statute defining the offense charged, and that must be resolved by the development of a record at trial. Relying on Thomas v. State, 919 S.W.2d 427, 430 (Tex.Crim.App. 1996), and Bruner v. State, 463 S.W.2d 205, 215 (Tex.Crim.App. 1970), Paxton argues that “the State Securities Act is highly penal in nature and requires that it be strictly construed.” AB 12. But Paxton’s reliance on these cases is misplaced. First, neither involved a pretrial challenge to a penal provision of the SSA. Second, in Thomas, the court stressed that “a strict construction [of the SSA] does not mean that we isolate terms or phrases from the context in which they appear [nor] does a strict construction mean that we ignore the plain meaning of terms.” Id. at 430. Because this claim is derailed by the Triple Crown of Ex parte Wiese, Ex parte Ellis, and Ex parte Doster, it is not cognizable on pretrial habeas. Paxton then goes all in on Ex parte Psaroudis, 508 S.W.2d 390, 391 (Tex.Crim.App. 1974), arguing that whether he may be prosecuted under § 29(I) is fair game on pretrial habeas. AB 5-6; 8-9. This reliance does not support the great weight rested on it. First, because the applicant in 19 Psaroudis sought to construe the meaning and application of the statute defining the offense charged, it is highly questionable whether the Court of Criminal Appeals would find this challenge cognizable on pretrial habeas in light of Ex parte Ellis. Second, Psaroudis was informed by facts that were not controverted, and so the resolution of this issue, unlike this case, would not have been aided by the development of a record at trial. Third, Paxton fails to acknowledge the core component of the holding in Psaroudis that was fatal to the applicant’s claim on the merits. “The Court will never adopt a construction that will make a statute absurd or ridiculous, or one that will lead to absurd consequences, if the language of the enactment is susceptible of any other meaning.” Id. at 392. Yet this is exactly what Paxton’s “dual registration” gambit seeks to do – adopting a construction of § 29(I) that permits him to avoid a trial on the merits by challenging the sufficiency of the evidence, construing the meaning and application of § 29(I) before a jury is ever seated, and by advancing a challenge that requires the development of a record at trial. Paxton invites this Court to grant him pretrial habeas corpus relief on the very challenge the doctrine of cognizability prevents him from mounting. This Court should decline Paxton’s invitation and overrule his first issue. 20 STATE’S REPLY TO PAXTON’S SECOND ISSUE The trial court did not abuse its discretion in denying Paxton’s second pretrial writ application because the definition of “Investment Advisor Representative” contained in § 29(P) of the State Securities Act is not unconstitutionally vague. [CR 360]. STATEMENT OF FACTS The State hereby incorporates by reference pages 5-8, supra. ARGUMENT AND AUTHORITIES Paxton argues that because the definition of Investment Advisor Representative [“IAR”] found in § 4(P)18 of the State Securities Act [“SSA”] has been preempted by federal law and effectively repealed, § 29(I) of the SSA is unconstitutionally vague for failing to provide fair notice of what conduct is prohibited or required, and allowing for arbitrary enforcement of the statute. AB 12-13. As recounted below, even if Paxton’s vagueness challenge to § 29(I) is cognizable on pretrial habeas, it fails on the merits. A. The Standard of Review 18 “‘Investment adviser representative’ or ‘representative of an investment adviser’ includes each person or company who, for compensation, is employed, appointed, or authorized by an investment adviser to solicit clients for the investment adviser or who, on behalf of an investment adviser, provides investment advice, directly or through subagents, as defined by Board rule, to the investment advisers clients. The term does not include a partner of a partnership or an officer of a corporation or other entity that is registered as an investment adviser under this Act solely because of the person’s status as an officer or partner of that entity.” 21 The State hereby incorporates by reference pages 9-11, supra. B. Paxton’s Preemption Claim is Not Cognizable on Pretrial Habeas Paxton’s second issue is constructed entirely on his argument that § 4(P) of the SSA “[t]oday ... incorrectly defines what it means to be an “Investment Adviser Representative,” because this definition has been preempted by federal law. AB 16. Paxton devotes a number of pages of his argument, many with single-spaced block quotations, others adorned by footnotes, AB 16-25, echoing his assertion that, “[T]his definition found at Section 4(P) has been preempted by federal law since the Court’s opinion in Morgan19 and is no longer valid, thus rendering § 581-29(I) void for vagueness.” AB 16. This argument, one Paxton reprises from his first issue, once again asks this Court to accept as true his bold assertion that he was not subject to SSB oversight as an IAR because of his alleged “dual registration” with the SSB and SEC. As set out supra, at 16-19, Paxton’s preemption challenge, in reality, attacks the sufficiency of the evidence, seeks to construe the meaning and application of §§ 4(P) and 29(I), and would not only be aided by, but must, ultimately, be resolved with, the 19 Morgan v. State, 557 S.W.2d 512 (Tex.Crim.App. 1977). Paxton’s reliance on Morgan is quizzical, as the court rejected the claim that §29(C)(3) of the SSA was unconstitutionally vague and indefinite because it failed to define the terms “securities” and “material fact.” Id. at 514. 22 development of a record at trial. See Ex parte Perry, ___ S.W.3d ___, 2016 WL 738237 at *6 (Tex.Crim.App. Feb. 24, 2016). Because the core component of Paxton’s attack on the constitutionality of §29(I) is not cognizable on pretrial habeas, this Court should overrule his second issue. C. Assuming Paxton’s Challenge is Cognizable, it Fails on the Merits 1. Paxton’s Burden in Mounting a Vagueness Challenge to § 29(I) It is axiomatic that Paxton shoulders the burden of establishing the unconstitutionality of § 29(I). Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978). This Court must presume that §29(I) is valid and that the legislature has acted reasonably and not arbitrarily in enacting §29(I). State v. Nayeb, 2016 WL 165686 at *5 (Tex.App.– Dallas, Jan. 13, 2016, no pet.)(not designated for publication). The federal constitution affords the states broad authority to construe a statute narrowly to avoid a constitutional violation. Osborne v. Ohio, 495 U.S. 103, 115 n. 12 (1990). If there are differing ways in which § 29(I) can be construed, this Court must apply the interpretation which sustains its validity. Ex parte Granviel, 561 S.W.2d at 511 “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since [Paxton] must establish that no set of circumstances exists under which [§29(I)] 23 would be valid.” Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App. 1990). Because Paxton fails to discuss or distinguish this line of authority, AB 5-12, this Court should conclude his challenge to the constitutionality of §29(I) on vagueness grounds fails on the merits. 2. § 29(I) is not Unconstitutionally Void for Vagueness Paxton’s vagueness attack on § 29(I) posits that “[c]onfusion renders the statute itself unconstitutionally vague” because “[t]here is simply no place in the TSA that any citizen or public official can look to determine who is an ‘Investment Adviser Representative” or who may be penalized for failing to register.” AB 27, 29. Paxton’s evanescent preemption claim, and its fraternal twin, “dual registration,” are not cognizable on pretrial habeas. Once these arguments are stripped away, his claim that § 29(I) is unconstitutionally void for vagueness because it fails to march in lockstep with its federal counterpart, quickly implodes.20 The Supreme Court has long held that the vagueness doctrine “is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes general enough to take into 20 See S & D Trading Academy, LLC v. AAFIS Inc., 336 Fed.Appx. 443, 448 (5th Cir. 2009) (not designated for publication)(“Texas courts obviously retain their authority [to interpret terms in the SSA] differently” than federal courts.). 24 account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110 (1972). This Court engages in a two-part inquiry in its examination of §29(I) for vagueness. The first is whether an ordinary, law-abiding person receives sufficient information from § 29(I) that his conduct risks violating the criminal law. Ex parte Ellis, 309 S.W.3d 71, 86 (Tex.Crim.App. 2010). A criminal statute need not be mathematically precise to pass constitutional muster; it need only give fair warning, in light of common understanding and practices. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The second inquiry involves a determination of whether §29(I) establishes determinate guidelines for law enforcement. Ex parte Ellis, 309 S.W.3d at 86. “But perfect clarity and precise guidelines have never been required even of regulations that restrict expressive activity.” United States v. Williams, 553 U.S. 285, 304 (2008). Viewed through this lens, persons of ordinary intelligence would not have to guess at the plain and common meaning of the term “investment adviser representative” or where to turn “to determine who is ‘an [IAR]’ or who may be penalized for failing to register.”” AB 29. First, IAR is defined in § 4(P). Second, Paxton’s claim that the SSB’s “own answer to 25 the question, ‘Who is an Investment Adviser Representative?’ is not so clear” inasmuch as “the Board answers this question on its website and § 581-4(P) is not even mentioned,” AB 16-17, is untenable. Notably, Paxton fails to recognize that the SSB’s website admonishes its visitors that, “These FAQs are not intended as legal advice. Readers are encouraged to consult an attorney.” And Paxton fails to provide argument or authority for his assertion that a constitutional attack on vagueness grounds has ever been sustained based on what a state or federal regulatory agency says on the FAQ section of its website. Third, while Paxton claims that, “Incorporation by reference can also provide fair warning in criminal statutes,” § 29(I) “fails in that regard because it indirectly references the preempted definition” in § 4(P), AB 30, because his preemption argument claim is not cognizable, the “no incorporation by reference” element of his vagueness challenge adds no support to his argument on the merits. See Armstrong v. State, 811 P.2d 593, 598 (Okla.Cr. 1991)(rejecting claim that Oklahoma’s definition of “investment adviser” was vague and overbroad). While § 29(I) may not define every term to Paxton’s liking,21 he 21 It bears repeating that when § 29(I) was amended by the Legislature in 2003 to make a violation of it punishable as a third-degree felony, Paxton was one of 142 state representatives who voted without opposition to support it. (CR 250-51). It is ironic, if not disingenuous, for Paxton to 26 concedes that “a statute is not unconstitutionally vague merely because it fails to define words or phrases,” AB 28, citing Morgan v. State, 557 S.W.2d at 514.22 Section §29(I) and § 4(P)’s definition of IAR “adequately details the prohibited conduct to the extent that the enforcement of the statute is not relegated to the subjective interpretation of” those called upon to enforce it. See Duncantell v. State, 230 S.W.3d 835, 846 (Tex.App. – Houston [14th Dist.] 2007, pet. ref’d); see also Colten v. Kentucky, 407 U.S. at 110 (“We believe that citizens who desire to obey the statute will have no difficulty in understanding it.”). Even if this issue is cognizable, Paxton’s constitutional challenge fails. See Ex parte Ellis, 309 S.W.3d at 80; State v. Nayeb, 2016 WL 165686 at *9; see also Sabine Consol., Inc. v. State, 806 S.W.2d 553, 559 (Tex.Crim.App. 1991)(rejecting claim OSHA preempted state court prosecution of defendant for criminally negligent homicide). Accordingly, this Court should overrule Paxton’s second issue. now claim that a statute that he voted for is unconstitutionally void for vagueness. 22 In Morgan, a case that defeats rather than buttresses Paxton’s vagueness challenge, the court rejected the claim that § 29(C)(3) of the SSA was unconstitutionally vague and indefinite for failing to define the terms “securities” and “material fact.” Aside from his brief reference to Morgan, Paxton fails to cite any cases from the Court of Criminal Appeals or the courts of appeal supporting his vagueness attack. Tellingly, while Paxton told the trial court that, had he known the response the State would make at the pretrial hearing, he “would have spent more time getting you some great authority for this [issue],” (2 RR 121), he has, some four months later, failed to do in his brief. 27 STATE’S REPLY TO PAXTON’S THIRD ISSUE The trial court did not abuse its discretion in denying Paxton’s third pretrial writ application because the grand jury that indicted Paxton was lawfully selected and empaneled. [CR 361; CR 127]. STATEMENT OF FACTS Viewed in the light most favorable to the trial court’s ruling, State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000), the evidence adduced below tended to show the following: Gail Leyko had been a prosecutor in Collin County for 22 years, and had been the chief of grand jury intake since 2012. (2 RR 13-14). On July 7, 2015, the first day the grand jury selected and empaneled in the 416th District Court met,23 Leyko conducted the panel’s orientation. (2 RR 17; 19). Prior to 2015, grand jurors in Texas were chosen by grand jury commissioners, euphemistically referred to as the “pick-a-pal” system. (2 RR 27). Judge Oldner, and Collin County District Judges John Roach, Jr., Cynthia Wheless, and Angela Tucker empaneled their grand jurors by the use of driver’s licenses.24 (2 RR 28; 50). 23 Judge Chris Oldner selected and empaneled the grand jury on June 12, 2015. (2 RR 39). 24 State law requiring the random selection of grand jurors by the use of driver’s licenses did not become effective until September 1, 2015, 28 Leyko noted that there was nothing unusual about the manner in which Judge Oldner’s grand jury was chosen; his grand jury was selected on a random basis. (2 RR 28). Judge Oldner did not put any of his friends or people whom he knew on the grand jury, and it did not appear to Leyko that he had a personal relationship with any of the potential grand jurors. (2 RR 28). Judge Oldner never told the panel it would hear the Paxton case, and, as far as Leyko knew, there was no reason to believe his grand jury would hear the Paxton case.25 (2 RR 29). Leyko believed that Judge Oldner selected his grand jury the way he did all others, without regard to packing the grand jury with people who were anti-Ken Paxton. (2 RR 29). Judge Oldner’s call for volunteers to serve as grand jurors, Leyko noted, was “not new.” (2 RR 39). She noted it had become “the norm” for the judges who used driver’s licenses to select potential grand jurors. (2 RR 40). Asking for volunteer grand jurors not only streamlined the selection process, but ensured that those grand jurors who were selected would be willing to shoulder their “big commitment” of serving all day, one 25 Tellingly, when defense counsel asked Leyko if “it would be reasonable to assume” that the grand jury would know it would hear “a matter about ... Paxton at some point,” Leyko refused to engage in this assumption. (2 RR 39). 29 day a week for six months at a time. (2 RR 51-52). Leyko noted that “the act of volunteering” is not a qualification for service as a grand juror, and that Judge Oldner’s call for volunteers was made after potential grand jurors were qualified for service. (2 RR 50). Asking for volunteers, Leyko noted, was merely a way for giving potential grand jurors who had already been pre-qualified, the ability to opt out of serving.26 (2 RR 52). She stressed that Judge Oldner had the same authority to “stand before that grand jury and just close his eyes and pick 12 people at random” as grand jurors. (2 RR 52). Based on her experience as the chief of the grand jury intake division, Leyko did not think there was anything improper about the way Judge Oldner selected and impaneled his grand jury. (2 RR 52). ARGUMENT AND AUTHORITIES Paxton argues that the grand jury that indicted him was “impaneled in arbitrary violation of Chapter 19 of the Code of Criminal Procedure” because Judge Oldner “added an impermissible, additional qualification for grand jury service, ‘willingness to serve’ prior to qualifying anyone on 26 Leyko noted that each grand juror had already been asked the “qualifying questions before” volunteering for service and that each volunteer was “qualified if they meet all the qualifications ... done in the beginning.” (2 RR 54-55). Leyko “knew the qualifications [for grand jury service] were done and people that weren’t qualified were excused prior to that part” of the process where Judge Oldner asked for volunteers.” (2 RR 55). 30 the venire according to the statute and then selected the grand jurors/alternates exclusively from that small pool of volunteers.” AB 3132. “This process,” Paxton argues, “deprived the venire and grand jury of the random character intended by the Texas Legislature.” AB 31. As discussed below, the vitality of Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App. 1970), the one case Paxton relies on in support of his claim that this challenge is cognizable on pretrial habeas, has been called into question by the Court of Criminal Appeals’ line of precedent over the past decade severely limiting the types of complaints that are cognizable on pretrial habeas. Moreover, regardless of whether Paxton’s complaint is cognizable on pretrial habeas, it fails on the merits on multiple levels. A. The Standard of Review The State hereby incorporates by reference pages 9-11, supra. B. Paxton’s Complaint is Not Cognizable on Pretrial Habeas Corpus As set out above, pretrial habeas claims are cognizable only where, inter alia, the applicant raises an issue which, if resolved in his favor, would bar any further prosecution or conviction. See Ex parte Smith, 185 S.W.3d 887, 892 (Tex.Crim.App. 2006)(emphasis added). Assuming that Paxton’s avowal that the grand jury that indicted him was improperly 31 selected and impaneled – which it clearly was not – the State would not be precluded from seeking to re-indict him before another grand jury that did not suffer from the same professed defect forming the basis for this issue. Because Paxton does not, because he cannot, demonstrate that prevailing on this claim would bar any further prosecution, it is not cognizable on pretrial habeas corpus. See Ex parte Wilhelm, 901 S.W.2d 956, 957 (Tex.App.– Houston [1st Dist.] 1995, pet. ref’d)(pretrial habeas claims cognizable only for issues which, if sustained, “would have totally barred prosecution. Even if appellants’ points of error were sustained, it would not stop the prosecution of their cases.”)(emphasis added). C. The Holding in Ex parte Becker has Been Eroded by Time and Intervening Authority from the Court of Criminal Appeals In support of his contention that this claim is cognizable on pre-trial habeas, Paxton, as he did below, relies exclusively on Ex parte Becker, 459 S.W.2d 442, 445 (Tex.Crim.App. 1970). AB 32. In Becker, the Court of Criminal Appeals held that an applicant could challenge the allegedly improper selection and impanelment of the grand jury by way of pretrial habeas, before ultimately finding that Becker was not entitled to relief because he could show neither harm nor prejudice. Id. Since Becker was 32 decided 46 years ago, it has been cited by the Court of Criminal Appeals,27 this Court28 and by courts of appeals.29 But whether its holding continues to remain viable, whether its reasoning and analysis has been eroded by time and intervening authority from the Court of Criminal Appeals, is far from settled. As discussed below, this Court is compelled to conclude the holding in Becker is no longer viable. First and foremost, at the time Becker was decided, the Court of Criminal Appeals’ body of work in pretrial writ cognizability was, to put it kindly, not merely meager, but largely nonexistent. When Becker was decided in 1970, the Court of Criminal Appeals took it for granted that a claim that, if sustained, would not result in any further prosecution of the applicant, was cognizable in a pretrial habeas application. In the 46 years since Becker was decided, particularly over the last decade, the Court of Criminal Appeals has handed down decisions, amplifying and clarifying 27 See Ex parte Weise, 55 S.W.3d at 619 n. 7; Ex parte Gentry, 770 S.W.2d 780, 794-95 (Tex.Crim.App. 1988)(cited as Ex parte Beckler [sic]). 28 Ex parte Smith, 152 S.W.3d 170, 172 (Tex.App.– Dallas 2004), aff’d, 185 S.W.3d 887 (Tex.Crim.App. 2006). 29 Ex parte Perry, 471 S.W.3d 63, 76 n. 32 (Tex.App.– Austin 2015, pet. grt’d), aff’d in part & rev’d in part, ___, S.W.3d ___, 2016 WL 738237 (Tex.Crim.App. Feb. 24, 2016). 33 the doctrine of cognizability in a manner consistently limiting, rather than expanding, the applicant’s right to seek redress via pretrial habeas. See e.g., Ex parte Richardson, 201 S.W.3d at 713. Second, a careful examination of the factual and legal narrative in Becker in the application for writ of habeas corpus30 and brief in support31 that is attached as an exhibit, reveals that, because the State did not raise the issue of cognizability,32 the court assumed the issue was cognizable before proceeding to the merits. Because the court concluded that Becker was unable to show either harm or prejudice, this Court could reasonably 30 The writ application alleged that the indictment “is void for the reason that the Grand Jury was impaneled contrary to the laws of the State of Texas” when the trial judge “unlawfully removed and/or rearranged certain names of prospective Grand Jurors from the list which had been furnished him by the Grand Jury Commissioners.” 31 In what passes for an argument that this issue was cognizable on pretrial habeas, i.e., “This case is properly before this Honorable Court,” the brief cited Ex parte Bustamente, 137 S.W.2d 29 (Tex.Crim.App. 1940), a case that is clearly distinguishable from both Becker and the case at bar. In Bustamente, the grand jury that indicted the applicant was comprised of only eleven grand jurors in violation of the Texas Constitution’s mandate that a lawfully constituted grand jury be composed of twelve members. In granting pretrial habeas relief, the court concluded that because “any matter declared by the Constitution cannot be ignored or changed by legislation ... an indictment returned by eleven cannot confer jurisdiction of the case upon the court.” Id. at 30-31. Unlike Becker and this case, the defect in the grand jury’s composition was constitutional and not statutory. Moreover, because granting relief in Bustamente did not preclude the State from re-indicting the applicant, his claim, like the claims in Becker and in this case, would not be cognizable on pretrial habeas given the post-Becker holdings in Ex parte Smith, Ex parte Wiese, and Ex parte Wilhelm. 32 This exhibit may be ordered through the Texas State Library and Archives Commission for a nominal fee. www.tsl.texas.gov/arc (last visited March 2, 2016). 34 infer that the portion of Becker assuming this claim was cognizable was merely non-binding dictum. See In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867, 870 (Tex.App.– Beaumont 2000, orig. proc.)(“dictum is an observation or remark made concerning some rule, principle, or application of law suggested in a particular case that is not necessary to the determination of the case and is not binding precedent under doctrine of stare decisis”);; Sarnoff v. American Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)(“‘dictum’ is a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding – that, being peripheral, may not have received the full and careful consideration of the court that uttered it.”). Third, given its moment to “draw stricter boundaries regarding what claims may be advanced on habeas,” in the 46-years since Becker was decided, the Court of Criminal Appeals’ “habeas corpus jurisprudence has taken a path” that will likely “prompt[] [it] ... to re-examine that holding.” Ex parte Richardson, 201 S.W.3d at 713. Indeed, by holding in Ex parte Smith, Ex parte Wiese, and Ex parte Wilhelm, and their progeny that pretrial habeas claims are cognizable only for issues which, if sustained, “would have totally barred prosecution,” the Court of Criminal Appeals 35 and the court of appeals have overruled sub silentio the holding in Becker that a complaint calling into question “the trial court’s power to proceed” is cognizable on pretrial habeas. See Ex parte Perry, 471 S.W.3d 63, 76 (Tex.App.– Austin 2015, pet. grt’d), aff’d in part & rev’d in part, ___ S.W.3d ___, 2016 WL 738237 (Tex.Crim.App. Feb. 24, 2016). Fourth, Becker has not been cited with approval by any appellate court in permitting an applicant to advance the contention Paxton urges. While Becker was cited in a footnote in Ex parte Wiese, 55 S.W.3d at 619 n. 7, albeit in a “see also” cite, its continuing vitality has been challenged by at least one appellate court: We also question whether Ex parte Becker is still a valid exception to the general rule against challenging indictments by writ of habeas corpus. Ex parte Matthews cited cases decided before and after Becker as examples of the exceptions to the general rule, but it failed to cite Ex parte Becker. Ex parte Matthews, 873 S.W.2d [40, 42 (Tex.Crim.App. 1994)]. Nor did it state that complaints to a void organization of a grand jury is one of the exceptions to the general rule. Because of this omission, we would question whether the Court of Criminal Appeals considers Ex parte Becker and [sic] exception to the general rule against challenging indictments by seeking habeas corpus relief. Ex parte Baker, 1997 WL 184342 at *1 n. 1 (Tex.App. – Houston [14th Dist.] April 17, 1997, no pet.)(not designated for publication)(emphasis 36 added). Simply put, even if this Court found Paxton’s claim regarding Judge Oldner’s selection and impanelment of the grand jury to be meritorious, which it clearly is not, the State would not be barred from re-presenting these cases to a different grand jury and seeking new indictments in all three matters. Because this issue is not one which would bar prosecution in the future, would not result in Paxton’s permanent discharge from any further prosecution, and would not deprive the trial court of all power to proceed,33 this claim is not one that is cognizable in a pre-trial writ. See Ex parte Smith, 185 S.W.3d at 892 (pretrial habeas limited to situations where accused challenges State’s power to restrain him at all, the manner of his pretrial restraint, or those issues, which if meritorious, would bar any further prosecution or conviction); Ex parte Weise, 55 S.W.3d at 61920 (claim cognizable in pre-trial writ only, if resolved in defendant’s favor, would bar further prosecution or conviction); Ex parte Driver, 2014 WL 6602529 at *2 (Tex.App.– Houston [1st Dist.] Nov. 20, 2014, pet. ref’d)(not designated for publication)(rejecting claim that firearms training offered 33 Indeed, the sole issue presented for review in Smith was: “Is a claim cognizable by pretrial writ of habeas corpus where, if successful, it would result in the defendant’s immediate release and deprive the trial court of all power to proceed?” Id. at 892 at n. 10 (emphasis added). 37 as part of grand jury’s orientation caused grand jury returning indictment to be biased against accused because challenge, “even if successful, would not bar his prosecution through a new indictment.”). D. Paxton’s Claim on the Merits is Unsupported and Unsupportable Paxton asserts that Judge Oldner’s impanelment of the 416th Grand Jury was improper because he “violated the custom, tradition, and text of Texas law” by impaneling only those ‘willing to serve’” and so “improperly added an additional qualification for grand jury service not found in law.” AB 36-37. He posits that Judge Oldner did not have the discretion “to call for volunteers” or excuse potential grand jurors “whose qualifications had not yet been tested.” AB 39-40. Paxton’s claim on the merits is foreclosed by the testimony of Gail Leyko, a dispassionate reading of Judge Oldner’s voir dire, the authority Paxton cites, and, tellingly, by the contrary authority he does not. Moreover, sustaining Paxton’s contention calls into question the hundreds and hundreds of indictments handed up by the 416th Grand Jury without regard to Paxton carrying his burden of showing an abuse of discretion, let alone demonstrating either harm or prejudice. 1. The Standard of Review: Paxton’s Extraordinary Burden The State hereby incorporates by reference pages 9-11, supra. 38 2. Judge Oldner Had Judicial Discretion to Call for Volunteers Article 19.25 of the Code of Criminal Procedure sets out five “Excuses From Service,” including § 5, giving Judge Oldner judicial discretion to excuse any potential grand juror whom he “determines has a reasonable excuse from service.” The trial court did not abuse its discretion when it affirmed Judge Oldner’s judicial discretion to confirm the willingness of the individuals on the panel to serve. The trial court’s commonsense interpretation of the plain language of Article 19.25(5) does not lead to absurd results the Legislature could not have imagined. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App. 1999). Viewed through the doubly deferential lens of the wide discretion afforded Judge Oldner in ensuring those unwilling to make the enormous commitment of time and energy required of grand jurors – the consummate “reasonable excuse from service” found in Article 19.25(5) – could be excused from service, and the trial court’s own discretion in assaying Judge Oldner’s conduct, Paxton’s argument fails.34 See United States v. Gometz, 730 F.2d 34 Tellingly, as Gail Leyko expressly, and the Collin County judiciary inferentially, believed, Judge Oldner’s call for volunteers was not expressly forbidden by Chapter 19. See e.g., Morrison v. State, 845 S.W.2d 882, 906 (Tex.Crim.App. 1992)(Benevides, J., dissenting)(“[I]n our system of jurisprudence, that which is not forbidden is generally allowed.”). 39 475, 480 (7th Cir. 1984)(en banc)(“And anyone with experience as a trial judge knows that a person forced against his will to serve on a jury is apt to be an angry juror and that an angry juror is a bad juror.”). While Paxton labels Judge Oldner’s call for volunteers to serve as a “personal whim”35 that arbitrarily disregards Chapter 19, AB 37-38, Judge Oldner’s exercise of judicial discretion, unlike the arbitrary and discriminatory conduct in Becker,36 was, as the trial court correctly found, informed by a rational, non-discriminatory motivation embraced by both the Collin County judiciary and the prosecutor in charge of grand jury intake who was present during the selection process.37 (2 RR 28-29; 39-40; 52). 35 “Whim” is defined as “a capricious or eccentric and often sudden idea.” www.meriamwebster.com (last visited March 1, 2016). To the extent that Judge Oldner’s selection process was embraced by his fellow Collin County judges, as well as sanctioned by the Collin County prosecutor in charge of grand jury intake who was present during the selection process, Paxton’s use of the word “whim” to describe Judge Oldner’s selection process is little more than hyperbole. While Paxton castigated the State for claiming that Judge Oldner’s selection method was proper because “everyone was doing it,” (CR 334; CR 108), in reality, “everyone was doing it” because it was proper. (CR 276 nn. 3-5; CR 99 nn. 3-5)(recounting method of calling for volunteer grand jurors employed by Judges Roach, Tucker, and Cynthia Wheless.). 36 The trial judge in Becker purposefully and deliberately excluded a woman and an Hispanic male based solely on the trial judge’s ad hoc sentiments. Ex parte Becker, 459 S.W.2d at 443. 37 Paxton contends that Judge Oldner’s call for volunteers “violated the custom, tradition, and text of Texas law.” AB 37. First, Paxton ignores the fact that calling for volunteers had become part of the “custom and tradition” in Collin County. (2 RR 28-29; 39-40; 52). More importantly, his contention is unadorned by any argument or authority suggesting how or why “custom, tradition [or] text” supercedes Judge Oldner’s inherent discretion in calling for volunteers, or, for that matter, the trial court’s discretion-driven, commonsense interpretation of Judge Oldner’s method of selection. 40 3. Paxton Ignores the Critical Fact that the Panel was Pre-Qualified The centerpiece of Paxton’s third issue is that Judge Oldner “was without discretion to disregard or excuse potential grand jurors whose qualifications had not yet been tested,” because he “never exercised any 19.25(5) discretion on any potential grand juror who did not volunteer.” AB 40-41. But Paxton’s argument is foreclosed by the plain language of Article 19.25(5), and, more importantly, his refusal to recognize that all of the potential grand jurors had been pre-qualified by the District Clerk before they were brought over to Judge Oldner’s courtroom. Gail Leyko testified without contradiction that: C “The act of volunteering” is not a qualification for grand jury service and Judge Oldner’s call for volunteers was made after potential grand jurors were qualified for service. (2 RR 50). C Asking for volunteers was merely a way for giving potential grand jurors who had already been pre-qualified, the ability to opt out of serving. (2 RR 52). C Each grand juror had already been asked the “qualifying questions before” volunteering for service and each volunteer was “qualified if they [met] all the qualifications ... done in the beginning.” (2 RR 5455). C “The qualifications [for grand jury service] were done and people that weren’t qualified were excused prior to that part” of the process where Judge Oldner asked for volunteers.” (2 RR 55). 41 Paxton’s argument that Judge Oldner was required to re-qualify the entire panel after they had already been pre-qualified by the District Clerk, before he had the discretion to excuse those unwilling to serve, entailed the performance of a useless act, something the law does not require. See e.g., Saenz v. State, 474 S.W.3d 47, 52 at n. 3 (Tex.App. – Houston [14th Dist.] 2015, no pet.). Because Article 19.25(5) vested Judge Oldner with discretion to excuse potential grand jurors who had already been qualified yet who did not want to volunteer, Paxton’s argument collapses. At the end of the day, Paxton wants this Court to not only second-guess the trial court’s interpretation of Judge Oldner’s discretioninformed decision, but to substitute its views for Judge Oldner’s by micromanaging how he and his fellow jurists perform their judicial tasks. This tenuous and problematic claim calls into question the validity of hundreds of indictments in Collin County without principled legal support, and is anathema to the orderly administration of justice at the trial court level.38 38 Paxton’s argument that Judge Oldner’s formation of a volunteer grand jury “destroyed it’s [sic] intended random character,” AB 42, is too clever by half. First, that the pre-qualified volunteers were chosen from a pool randomly selected by driver’s licenses assured the “intended random character” of the grand jury the Legislature sought when it put an end to the deck-stacking mind-set of the “pick-a-pal” system. Moreover, the only evidence Paxton offers to fortify his claim that Judge Oldner’s call for volunteers “perpetuated the problems inherent in the ‘key-man’ system,” AB 44-45, is his anecdotal reference to a pair of newspaper articles. AB 44 n. 14. 42 Perkins v. State, 902 S.W.2d 88, 102 (Tex.App.– El Paso 1995, pet. ref’d)(“When a legally constituted grand jury returns an indictment which is valid on its face, it is sufficient to call for a trial on the merits.”). 4. The Only State Case Paxton Cites Derails his Argument Tellingly, Ex parte Becker, the only state case Paxton cites for the tenet that “an arbitrary disregard” of the statutes regarding the selection and impanelment of a grand jury “vitiates and renders [a] grand jury without authority,” AB 38, defeats, rather than strengthens his argument. First, Paxton fails to acknowledge the most critical portion of Becker that derails his submission: “the statutes relating to the organization of grand juries are directory and not mandatory.” Ex parte Becker, 459 S.W.2d at 443-44 (emphasis added). Second, Paxton also ignores what the court made clear in Becker, in rejecting the claim that the trial court’s conduct did not vitiate the impanelment of the grand jury: We are unable to agree with appellant’s contention as set forth in his bill of exceptions No. 1 that the trial court committed error in excusing from the list of grand jurors certain men drawn thereon, and in instructing the sheriff to summon other men to take the places of those so excused. We do not think the law regarding the formation of a grand jury should have such rigid and inflexible construction as that the trial court may not excuse from service on such grand jury citizens whose reasons as presented to the court appeal to his sound 43 discretion and were such as to seem to justify such action. Id. at 444-45, citing Robinson v. State, 244 S.W. 599, 599 (Tex.Crim.App. 1922). 5. Paxton’s Non-Binding Federal Authority is Distinguishable Paxton directs this Court to United States v. Branscome, 682 F.2d 484, 485 (4th Cir. 1982), and United States v. Kennedy, 548 F.2d 608, 612 (5th Cir. 1977) as authority that volunteer grand juries violate federal law requiring random selection. AB 45-48. His reliance on federal authority is unavailing. First, it is axiomatic that this Court is not bound by the holdings of the lower federal courts. See e.g., Stewart v. State, 686 S.W.2d 118, 121 (Tex.Crim.App. 1984)(“We would remind appellant that this Court is not bound by the decisions of the lower federal courts.”); J.W. Huber Corp. v. Santa Fe Energy, 871 S.W.2d 842, 846 (Tex.App.– Houston [14th Dist.] 1994, writ den’d)(Texas courts “owe obedience to only one .. court, namely, the Supreme Court.”)(citations omitted). Second, Paxton fails to note that the Kennedy volunteers were trial jurors and not grand jurors. Third, Branscome held the legislative intent in the Jury Selection and Service Act of 1968 did not authorize and precluded the selection of volunteer grand jurors. Id. at 485. Unlike its federal counterpart, Chapter 44 19 does not expressly prohibit the selection of volunteer grand jurors. E. Paxton Cannot Demonstrate Either Harm or Prejudice After devoting 18 pages to why Judge Oldner allegedly abused his discretion seeking volunteer grand jurors, AB 31-48, Paxton devotes a mere three sentences to a conclusory claim that he “was uniquely harmed by the call for volunteers,” while refusing to “concede that he need show individual harm or prejudice to be entitled to relief.” AB 48-49. This brief and unsatisfying harm “analysis” is fatally flawed on multiple levels. First, Paxton’s assertion that “he need not show individual harm or prejudice to be entitled to relief by writ of habeas corpus,” AB 48, “contains no argument or citation to authority that might support [his] argument.” Because this Court is not obligated to “construct and compose” Paxton’s argument for him, his claim that he need not shoulder his burden of showing harm or prejudice is inadequately briefed and presents nothing for review. See Lucio v. State, 351 S.W.3d 878, 896 (Tex.Crim.App. 2011). Second, the Supreme Court has held that prosecutorial misconduct that dwarfs the claimed irregularity in this case did not warrant “granting a windfall to the unprejudiced defendant.” Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988). 45 Third, Paxton’s belief he need not demonstrate harm or prejudice is belied by the only authority he cites. See Ex parte Becker, 459 S.W.2d at 445 (“However unique the irregularity, it is not of sufficient gravity to warrant holding the Grand Jury illegally constituted rendering void ipso facto every indictment returned by such Grand Jury, particularly without any showing of harm or prejudice.”)(emphasis added). Because Judge Oldner’s conduct does not come close to the trial judge’s attempt to skew the selection process condemned in Becker or the prosecutorial misconduct decried in Bank of Nova Scotia, Paxton can no more demonstrate harm or prejudice than the defendants in either case. See also Gentry v. State, 770 S.W.2d 780, 795 (Tex.Crim.App. 1988)(“It is imperative to recognize that the appellant admittedly does not allege fraud in the selection of the grand jury; nor does he show how the manner of selecting this particular grand jury was injurious to his rights.”)(emphasis added); Hicks v. State, 630 S.W.2d 829, 836 (Tex.App.– Houston [1st Dist.] 1982, pet. ref’d)(“None of the violations [of Articles 19.09-19.12] is [sic ] of such a nefarious nature as to warrant a reversal of the case. This is particularly so since it appears that some of these articles are directory and not mandatory and since none involve fundamental errors.”)(emphasis added). 46 Fourth, Paxton’s claim that, given the large amount of publicity the investigation and his potential indictment entailed, Judge Oldner’s call for volunteers “assured that anyone who wished to serve specifically to indict Paxton could do so who otherwise would not have been on the grand jury,” AB 49, is patently unfounded. Aside from the fact that Paxton’s avowal, unadorned by “argument or citation to authority that might support [his] argument,” is improperly briefed and presents nothing for review, Lucio v. State, 351 S.W.3d at 896, it is a baseless assertion unsupported by this record that this Court may not consider. See e.g., Franklin v. State, 693 S.W.2d 420, 431 (Tex.Crim.App. 1985)(mere assertions in appellate brief unsupported by evidence will not be considered on appeal). Fifth, Paxton’s conclusory and self-serving assertion is defused by the one question Paxton does not, because he cannot, answer: how could any of the grand jurors have known when they were sworn in on June 12, 2015, that the Special Prosecutors would present the Paxton case to them, instead of to Judge Roach’s grand jury?39 Finally, this claim gratuitously 39 As Leyko noted, Judge Oldner never told the panel that it would hear the Paxton case, and, as far as she knew, there was no reason to believe his grand jury would hear the Paxton case. (2 RR 29). Leyko believed that Judge Oldner selected his grand jury the way he did every other grand jury, without regard to packing the grand jury with people who were anti-Ken Paxton. (2 RR 29). 47 tars the character and reputation of both Judge Oldner, a dedicated public servant,40 and twelve good and decent Collin County citizens who devoted six months of their lives to serving the criminal justice system as grand jurors, but who have now been accused of violating the sworn oaths they took not to indict any “person from envy, hatred or malice...”41 Assuming Paxton’s third issue is even cognizable on pretrial habeas, it fails on the merits given Judge Oldner’s inherent authority to call for volunteers after each member of the panel had been pre-qualified to serve. Finally, even if Judge Oldner’s method of impaneling the grand jury was, at worst, a technical violation of “the statutes relating to the organization of grand juries [that] are directory and not mandatory,” Ex parte Becker, 459 S.W.2d at 443-44, Paxton’s speculation and opprobrium cannot be a principled substitute for the prejudice or harm his own legal authority requires him to demonstrate to be entitled to the extraordinary remedy of pretrial habeas relief. Paxton’s third issue should be overruled. 40 Prior to his appointment, Judge Oldner was a chief felony prosecutor for the Collin County District Attorney’s Office. He has been honored with the Outstanding Judicial Faculty Award from the Texas Center for the Judiciary. www.ballotpedia.org (last visited November 3, 2015). 41 Article 19.34 (OATH OF GRAND JURORS). 48 STATE’S REPLY TO PAXTON’S FOURTH ISSUE The trial court did not abuse its discretion in denying Paxton’s fourth pretrial writ application because §29(I) of the State Securities Act is not facially overbroad or unconstitutionally vague. [CR 362]. STATEMENT OF FACTS The State hereby incorporates by reference pages 6-8, supra. ARGUMENT AND AUTHORITIES Paxton argues that § 29(I), “The statute he was charged with under the [State Securities Act] for failing register [sic] as an investment adviser representative with overbroad [sic] as it unconstitutionally regulates free commercial speech and is so vague it fails to give a person fair notice of what conduct is prohibited by the statute and allows for arbitrary enforcement.” AB 49. Paxton amplifies his argument by contending that, “The State failed to shoulder its burden under Central Hudson Gas & Electric Corp. v. Public Services Comm’n, 447 U.S. 557 (1980)...” AB 49. As set out below, Paxton has failed to acknowledge, let alone shoulder, his substantial burden of demonstrating that § 29(I) is unconstitutionally overbroad and vague. Moreover, because the First Amendment does not protect commercial speech that is false or misleading, such as that at issue 49 in this proceeding, the State was not required to carry any burden under Central Hudson, and so Paxton’s fourth issue fails on the merits.42 A. The Standard of Review The State hereby incorporates by reference pages 9-11, supra. “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since [Paxton] must establish that no set of circumstances exists under which [§ 29(I)] would be valid.” Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App. 1990). This Court is bound to interpret and enforce § 29(I) as enacted by the Legislature, and signed by the Executive, without regard to its policy or wisdom. In re Smith, 333 S.W.3d 582, 586 (Tex. 2011). If a commonsense interpretation of § 29(I)’s plain language does not lead to absurd results the Legislature could not have imagined, this Court must give effect to its plain meaning. Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App. 1999). In determining plain meaning, this Court may consult dictionary definitions, apply rules of grammar, and consider words in context. Lopez v. State, 253 S.W.3d 42 While Paxton’s claim that § 29(I) is void for vagueness is cognizable on pretrial habeas, Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App. 2010)(“Pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense...”), as discussed below, his overbreadth challenge is an “as applied” challenge to § 29(I) that is not cognizable. Ex parte Perry, ___ S.W.3d at ___; 2016 WL 738237 at *6, citing Ex parte Ellis, 309 S.W.3d at 79. 50 680, 685 (Tex.Crim.App. 2008). B. The Extraordinary Burden Paxton Must Shoulder in Successfully Mounting an Overbreadth Challenge to §29(I)43 The Supreme Court has cautioned that the overbreadth doctrine is “strong medicine” to be used “sparingly,” “only as a last resort,” and that “must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted.” New York v. Ferber, 458 U.S. 747, 769 (1982). As the Court of Criminal Appeals has made clear: The overbreadth of a statute must be “substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” The statute must prohibit a substantial amount of protected expression and the danger that the statute will be unconstitutionally applied must be realistic and not based on “fanciful hypotheticals.” The person challenging the statute must demonstrate from its text and from actual fact “that a substantial number of instances exist in which the Law cannot be applied constitutionally.” The Supreme Court “generally do[es] not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law.” State v. Johnson, 475 S.W.3d 860, 865 (Tex.Crim.App. 2015)(citations omitted). 43 Because Paxton has challenged § 28(I) as overbroad and vague, this Court must address his overbreadth challenge first. Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.– Houston [14th Dist.] 2007, pet. ref’d) 51 1. The State Has Not “Conceded” or “Agreed” that § 29(I) Attempts to Regulate Protected Commercial Speech Paxton argues the State “agreed” that § 581-29(I), as it incorporates § 581-4(P)’s definition of ‘investment adviser representative,’ attempts to regulate commercial speech.” (CR 285), echoing his claim that the State “concedes [§ 29(I)] involves the State’s regulation of protected commercial speech.” (CR 341)(emphasis added). He posits this “agreement/concession” required the State to bear the burden imposed by Central Hudson Gas & Electric Corp. v. Public Services Comm’n,44 447 U.S. at 564. AB 52-58. Paxton’s claim, however, is devoid of merit on multiple levels. At the outset, the State neither “agreed” nor “conceded” § 29(I) “is driven by the regulation of commercial speech,” noting only in its reply to this issue that Paxton, and not the State, “concedes” it. (CR 285). While “argues” might have been more apt than “concedes,” this minor linguistic difference does not fortify Paxton’s claim that the State has “agreed to” or “conceded” anything of moment to the resolution of this issue. Because his overbreadth attack incorrectly and prematurely assumes §29(I), at least 44 The regulation of truthful, non-deceptive speech relating to a commercial transaction by the government requires it to show that: (1) it has a substantial interest in supporting the regulation; (2) the regulation directly and materially advances that interest; and (3) the regulation is narrowly tailored to advance that interest. Id. at 563-64. 52 as it applies to him, cannot be interpreted as regulating speech or conduct that is false or deceptive, Paxton’s assertion is neither fortified by Central Hudson nor cognizable on pretrial habeas. Even if the State was required to assume the burden imposed on it by Central Hudson, his constitutional challenge on the merits fails. 2. The Tripartite Test in Central Hudson Regulates Only Truthful, Non-Deceptive Commercial Speech Paxton’s attempt to deep-six § 29(I) on overbreadth grounds because it attempts to regulate speech is derailed by the Supreme Court’s longstanding belief that “it has never been deemed an abridgement of freedom of speech ... to make a course of conduct illegal merely because the conduct was in part, initiated, evidenced, or carried out by language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). The justification for the overbreadth doctrine applies weakly, if at all, in the ordinary commercial context. Celis v. State, 354 S.W.2d 7, 33 (Tex.App.– Corpus Christi 2011, pet grt’d), aff’d on other grounds, 416 S.W.3d 419 (Tex.Crim.App. 2013). If the statute proscribes both lawful conduct and conduct protected by the First Amendment, it does not mean it is unconstitutionally overbroad. Bynum v. State, 767 53 S.W.2d 769, 773 (Tex.Crim.App. 1989). “Where, as here, the regulation of the commercial enterprise ... is a subject of legitimate and substantial government interest, the mere fact that regulation has an incidental impact on speech is not sufficient to render the statute invalid.” Ex parte Manrique, 40 S.W.3d 552, 553 (Tex.App. – San Antonio 2001, no pet.). Paxton’s gambit in doubling down on Central Hudson succeeds only if, as he concedes, § 29(I) seeks to “regulate truthful, non-deceptive speech relating to a commercial transaction.” AB 52. (emphasis added). But the Supreme Court made it clear in Central Hudson that, “The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity.” Central Hudson Gas & Electric Corp. v. Public Services Comm’n, 447 U.S. at 563-64. (emphasis added). Critically, Paxton fails to recognize that the order he entered into with the SSB reveals his compensated referral of clients to MCM takes his overbreadth challenge out of the ambit of Central Hudson: C 5. Pursuant to an agreement with MCM, [Paxton] was compensated by MCM for each solicitation resulting in a client relationship with MCM. Specifically, MCM agreed to pay [Paxton] 30% of the asset management fees collected by MCM from each client that [Paxton] solicited successfully. C 6. [Paxton] successfully solicited three (3) clients for MCM at times 54 when MCM was a state-registered investment adviser but [Paxton] was not registered as an investment adviser representative of MCM. These solicitations occurred in 2004, 2005, and 2012. C 9. The clients solicited by [Paxton] for MCM paid annual asset management fees ranging from 1% to 1.95% of assets under MCM management. Such fees were collected by MCM on a quarterly basis. Thereafter, [Paxton] was paid a portion of the fees. C 10. [Paxton] relied on MCM to disclose [his] compensation agreement to potential clients that [Paxton] solicited for MCM. (CR 239). Because his client referrals were driven by a failure to “disclose [his] compensation agreement to potential clients that [Paxton] solicited for MCM,” the antithesis of “truthful and non-deceptive speech”45 his overbreadth attack gains no traction from Central Hudson. See Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008)(“For commercial speech to come within the provision of the First Amendment, it at least must concern lawful activity and not be misleading.”). 3. Assuming Central Hudson Applies, the State has Carried its Burden As the State demonstrated below, Texas has a compelling interest 45 Paxton is free to argue that MCM’s agreement to pay him 30% of the asset management fees collected by MCM from each client that Paxton solicited successfully, without disclosing the nature of this compensation arrangement to MCM’s clients, was “truthful and non-deceptive” speech subject to review under Central Hudson. But his forum for doing so is a trial court before a jury, and not before this Court, with an “as applied” attack on § 29(I) that is not cognizable on pretrial habeas. Ex parte Perry, ___ S.W.3d at ___; 2016 WL 738237 at *6, citing Ex parte Ellis, 309 S.W.3d at 79. 55 in regulating the commercial speech of individuals such as Paxton, who act as investment advisers by advising or soliciting clients who trust them to invest their life savings, referring them to financial advisers such as MCM, and collecting a handsome asset management fee, while not being licensed to do so. (2 RR 175). By introducing the legislative history and intent behind the amendment to §29(I),46 and the Disciplinary Order, the underlying narrative of Paxton’s indictment, the State met its burden under Central Hudson.47 See O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 401 (Tex. 1988)(“State has a strong and substantial interest in protecting the public from ‘overreaching and other forms of misconduct’”). Similarly, § 29(I)’s registration requirement directly and materially advances that interest. Without citation to authority, Paxton argues “the State faces a greater hurtle [sic] as to solicitors [whose registration] does not directly or materially protect Texas investors because the solicitor is 46 As the “Digest and Purpose” portion of the Bill Analysis reveals, “The recent investment securities scandals have highlighted what some say are shortcomings in the rules and regulations enforcement of investment securities. S.B. 1060 provides for improved investment securities enforcement.” (CR 244). 47 Paxton cites Anderson Courier Service v. State, 104 S.W.3d 121, 125 (Tex.App.– Austin 2000, pet. dism’d), to buttress his claim the State failed to meet its burden under Central Hudson. AB 55. But Paxton’s own authority provides that the State may meet its burden, as it did here, by “reference to studies and anecdotes ... or even ... based solely on history, consensus, and ‘simple common sense.’” Id. 56 not in a position to cause the investor harm.” AB 56. But this claim is refuted by the legislative history and intent behind § 29(I)’s amendment, and the fact that steering potential clients to investment advisers, as Paxton is alleged to have done for MCM, to investment advisers, provides a substantial specter of harm, one that advances the State’s substantial interest in regulating solicitors. See Celis v. State, 354 S.W.2d at 33. Finally, the State has shown § 29(I) is narrowly tailored to advance its interest. See O’Quinn v. State Bar of Texas, 763 S.W.2d at 401 (“We nevertheless conclude that a ban against in-person solicitation of clients by lawyers or runners is substantially related to legitimate state goals and could not be more narrowly tailored.”). Tellingly, Paxton’s assertion that, “The regulation prohibiting solicitation by unregistered as [sic] investment adviser representatives touches on persons engaged in a wide spectrum of conduct unlikely to cause the harm the [SSA] exists to protect,” AB 57, is unadorned by any citation to authority, other than Anderson Courier, which provides no principled support for his submission. 4. Paxton’s “Less Burdensome Alternative” Claim is Untenable The final portion of Paxton’s overbreadth attack, a less burdensome alternative, such as the SEC’s rule, is available, AB 59, proves too much. 57 First, regardless of the bold assertion that the SEC’s rule should trump those enacted by the SSB, “Texas courts obviously retain their authority [to interpret terms used in the SSA’s] differently” than federal courts. S & D Trading Academy, LLC v. AAFIS Inc., 336 Fed.Appx. 443, 448 (5th Cir. 2009)(not designated for publication). Moreover, Paxton’s refusal to provide any “citation to authority that might support [his] argument” that this Court is free to second-guess the Legislature, by striking down § 29(I) on such a tenuous basis, is fatal to his submission. See Lucio v. State, 351 S.W.3d 878, 896-97 (Tex.Crim.App. 2010)(where brief “contains no ... citation to any authority that might support an argument ... appellate court may summarily reject claim as inadequately briefed). C. §29(I) is Not Unconstitutionally Vague 1. Paxton’s Burden in Mounting a Vagueness Challenge to § 29(I) The State hereby incorporates by reference pages 23-24, supra. 2. § 29(I) is Not Unconstitutionally Void for Vagueness Paxton posits that § 29(I) is unconstitutionally vague because § 4(P) fails to define the term “solicit” and because it does not contain a scienter requirement. AB 60. Neither argument withstands serious scrutiny. Persons of ordinary intelligence – especially those who are IARs – do 58 not have to guess at the plain and common meaning of “solicit” relating to acting as an IAR without being SSB-registered. Indeed, it is a basic tenet of statutory construction that a statute is not unconstitutionally vague simply because words or phrases are not specifically defined. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App. 2006). Undefined terms are typically given their plain meaning unless the language is ambiguous or the plain language leads to absurd results legislators could not have possibly intended. Boykin v. State, 818 S.W.2d at 785-786. Words defined in dictionaries or with meanings so well-known as to be understood by persons of ordinary intelligence are not considered vague and indefinite. Watson v. State, 369 S.W.3d 865, 870 (Tex.Crim.App. 2012). The definition of the term “solicit” includes “to ask for,” “to try to obtain,” www.meriam-webster.com (last visited March 5, 2016), or “to seek or to plead [or] to ask.”48 www.thelawdictionary.com (last visited March 5, 2016). Persons of ordinary intelligence, especially the legislators who drafted this provision, and who, like Paxton, voted without opposition to enact it, would know that “soliciting” necessarily encompasses any or all 48 See also www.thesaurus.com (last visited March 5, 2016)(“solicit” also encompasses “to promote,” “to refer,” or “to steer.”). 59 of these plain and commonsense definitions, especially given the context with which it is used in § 4(P).49 As the Oklahoma Court of Criminal Appeals has concluded, rejecting a vagueness and overbreadth challenge to its Securities Act’s definition of, inter alia, “investment adviser.” We find nothing in this language which offends the due process requirement of the federal and state constitutions that prohibited conduct be clearly defined. These statutory provisions are clearly stated and understandable by an ordinary person in a commercial context. ... The legislature wrote the Act with all encompassing strokes to protect the public against blue-sky promotions and promoters, and other stock transactions not otherwise covered by law. The Act as written fulfills the legitimate governmental purpose of protecting the public from the many means promoters may use to separate the unwary from their money. The Securities Act is not unconstitutionally vague or overbroad. Armstrong v. State, 811 P.2d 593, 598 (Okla.Cr. 1991)(emphasis added). Because the term “solicit” is not so vague that “people of common intelligence must necessarily guess at” what conduct is prohibited, Paxton’s vagueness challenge fails. See State v. Nayeb, 2016 WL 165686 at *9 (Tex.App.– Dallas Jan. 13, 2016, no pet.)(not designated for publication)(“We conclude that the terms ‘bank’ and ‘financial institution’ 49 Paxton’s reliance on Thomas v. State, 919 S.W.2d 427 (Tex.Crim.App. 1996), to fortify his claim that “any doubt as to whether an offense has been committed should be resolved in favor of the accused,” AB 62, is quixotic, as the court reaffirmed the tenet that “a strict construction [does not] mean that we ignore the plain meaning of terms.” Id. at 430. 60 have meanings so well-known as to be understood by a person of common intelligence.”); see also Colten v. Kentucky, 407 U.S. 104, 110 (1972)(“We believe that citizens who desire to obey the statute will have no difficulty in understanding it.”). 3. Assuming § 29(I) Requires a Culpable Mental State, the Indictment Alleges Paxton Acted “Knowingly and Intentionally” Paxton’s assertion that § 29(I) is unconstitutionally vague because it lacks a scienter requirement, AB 62-63, is also unavailing. Assuming this statute even requires a culpable mental state under TEX. PENAL CODE, § 6.02(b),50 both paragraphs of Paxton’s amended indictments meet § 6.02(c)’s mandate of providing one.51 (CR 352-53). By alleging that he “knowingly and intentionally” violated § 29(I), the State has taken it out of the ambit of a strict liability offense, derailing Paxton’s claim that § 29(I)’s “lack of a well-defined mens rea requirement ... fail [sic] to give a person of ordinary intelligence notice of what is proscribed.” AB 63. Paxton’s fourth issue is without merit and should be overruled. 50 “If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless [it] plainly dispenses with any mental element.” 51 “If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.” 61 CONCLUSION AND PRAYER The State prays that this Honorable Court affirm the judgment of the trial court denying Paxton’s applications for pretrial habeas corpus relief. RESPECTFULLY SUBMITTED, /s/ BRIAN W. WICE _____________________________ BRIAN W. WICE The Lyric Centre 440 Louisiana Suite 900 Houston, Texas 77002 (713) 524-9922 PHONE (713) 236-7768 FAX Bar No. 21417800 LEAD COUNSEL KENT A. SCHAFFER 712 Main Suite 2400 Houston, Texas 77002 (713) 228-8500 PHONE (713) 228-0034 FAX Bar No. 17724300 NICOLE DeBORDE 712 Main Suite 2400 Houston, Texas 77002 (713) 228-8500 PHONE (713) 228-0034 FAX Bar No. 00787344 ATTORNEYS PRO TEM THE STATE OF TEXAS 62 CERTIFICATE OF SERVICE Pursuant to TEX.R.APP.P. 9.5(d), this brief was served on all counsel of record via electronic filing on March 14, 2016. /s/ BRIAN W. WICE _______________________________ BRIAN W. WICE CERTIFICATE OF COMPLIANCE Pursuant to TEX.R.APP.P. 9.4(1)(i)(1), I certify that this document complies with the type-volume limitations of TEX.R.APP.P. .P 9.4(i)(2)(D): 1. Exclusive of the exempted portions set out in TEX.R.APP.P. .P 9.4(i)(1), this document contains 14,345 words. 2. This document was prepared in proportionally spaced typeface using Word Perfect 8.0 in Century 14 for text and Times New Roman 12 for footnotes. /s/ BRIAN W. WICE _______________________________ BRIAN W. WICE 63