ROBERTS v. STATE (2026)

Petition for discretionary review refused.

DISSENTING OPINION

Texas Department of Public Safety Trooper Jordan Garner observed Appellant driving a car with a defective taillight. Trooper Garner activated his lights, Appellant's car came to a stop, and four passengers exited the car. One fled the scene, and the others were in dirty clothes and covered with brush and sticks. The three passengers that remained on scene were in the country without lawful immigration status.

Appellant was convicted of smuggling of persons and was sentenced to forty-two months’ confinement. See Tex. Penal Code § 20.05(a)(1)(A). He filed a motion for new trial and argued that Section 20.05(a)(1)(A) is facially unconstitutional and violates the First Amendment. Appellant also raised an as-applied federal preemption challenge to his prosecution in the motion for new trial. The trial court denied the motion, and Appellant timely appealed.

In a published opinion, the court of appeals affirmed. Roberts v. State, –––– S.W.3d ––––, ––––, No. 04-24-00485-CR, 2026 WL 290378, at *9 (Tex. App.—San Antonio Feb. 4, 2026). The instant petition for discretionary review followed. Appellant's first ground for review asks: “Did the court of appeals apply the wrong legal standard when it considered conduct beyond the statute's elements—conduct the State need never prove and no jury will ever need to find—in rejecting Mr. Roberts's facial challenge to his statute of conviction?”

“The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors, do the laws prohibit or otherwise regulate?” Moody v. NetChoice, LLC, 603 U.S. 707, 724, 144 S.Ct. 2383, 219 L.Ed.2d 1075 (2024). A facial challenge requires courts to “consider the statute only as it is written[.]” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). Courts thus must consider only what the government needs to prove and what the jury needs to find—that is, “element[s]”— when determining a statute's facial constitutionality. Ex parte Perry, 483 S.W.3d 884, 914 (Tex. Crim. App. 2016). Put differently, to resolve a facial challenge, a court must consider only “applications of the statute in which it actually authorizes or prohibits conduct.” City of Los Angeles v. Patel, 576 U.S. 409, 418, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015); accord Peraza v. State, 467 S.W.3d 508, 515 (Tex. Crim. App. 2015).

Section 20.05(a)(1)(A) provides: “(a) A person commits an offense if the person knowingly: (1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to: (A) conceal the individual from a peace officer or special investigator[.]” Tex. Penal Code § 20.05(a)(1)(A).

The court of appeals held, in part, that “[t]he scope of section 20.05(a)(1)(A) covers transport with an intent to conceal that is demonstrated through actual concealment and where concealment is itself unlawful.” Id. at ––––, 2026 WL 290378, at *4. Based on this, the court of appeals held that “[i]n applications that include actual concealment, section 20.05(a)(1)(A) punishes non-expressive conduct, which does not raise First Amendment concerns, even if the statute requires the fact-finder to determine intent.” Id. As the court of appeals correctly recognized, “[o]n its face, the law regulates an action — the use of a means of conveyance to transport an individual.” Roberts, ––– S.W.3d at ––––, 2026 WL 290378, at *2.

But then the court of appeals erred. By holding that “[t]he scope of section 20.05(a)(1)(A) covers transport with an intent to conceal that is demonstrated through actual concealment and where concealment is itself unlawful,” id. at ––––, 2026 WL 290378, at *4 (emphasis added), the court of appeals considered conduct that is not required by Section 20.05(a)(1)(A). Nothing in that statute requires the State to prove that the defendant committed any act of concealment. In other words, concealment is not an “element,” and a reviewing court of appeals such as the one below errs to consider anything beyond the “element[s]” of the offense—what the government needs to prove and what the jury needs to find—when determining a statute's facial constitutionality. Perry, 483 S.W.3d at 914. By considering conduct outside of the scope of the statute, the court of appeals erred in its analysis of Appellant's constitutional challenge.

Under the court of appeals’ erroneous approach, Section 20.05(a)(1)(A) is facially constitutional based on facts that no jury ever needs to find to convict Appellant. The statute may very well be facially constitutional; a proper analysis on remand may reach this conclusion. But, as it stands, the court of appeals erred. I would grant review and reverse. Because the Court does not, I respectfully dissent.