DESHAWN DAWAYNE GRIFFIN v. THE STATE OF TEXAS (2026)

CONCURRING OPINION

Transportation is not speech.¹ Concealing a person from law enforcement is also not speech. Ergo, transporting someone with the intent to conceal that person from law enforcement is not speech. The smuggling statute at issue in the present case does not on its face violate the First Amendment, and that conclusion is so obvious that there is no point in granting review, whatever one thinks of the court of appeals's analysis.

The statute at issue says that a person commits an offense if he “uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to ․ conceal the individual from a peace officer or special investigator.”² Appellant's contention—and that of several other defendants in petitions before us ³ —is that this statute is unconstitutional on its face in violation of the First Amendment.

That contention is ridiculous. Nothing in the statutory language purports to encompass expression. Appellant's argument is “freedom of thought,” but the statute requires no actual communication—being engaged in or received—that this “thought” supposedly attaches to.⁴ There is also no suggestion that the statute involves an activity that regularly carries symbolic expressive significance.⁵ And like the inducing-illegal-immigration statute upheld against a facial challenge in Hansen, the present statute requires “that a defendant intend to bring about a specific result”—under the present statute, concealment of a particular individual.⁶ And both the required actual conduct and the required intended result are non-communicative. At worst, the present statute is a “sort of inchoate crime—an act looking toward the commission of another crime” (the actual concealment of an individual from law enforcement) that the legislature can validly punish.⁷ Indeed, the intended result of concealment makes the statute even less likely to violate the First Amendment because “[t]he more hidden the conduct, arguably the less expressive it is likely to be.”⁸ And to the extent one might engage in speech in order to carry out the intended result of concealment, that would at most be “speech integral to unlawful conduct.”⁹

To invalidate a statute under the overbreadth doctrine, “a law's unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute's lawful sweep.”¹⁰ The ratio of unconstitutional-to-constitutional applications must be “lopsided.”¹¹ For the smuggling statute at issue, it seems rather unlikely that a court will ever find even an “as applied” violation of the First Amendment. The notion that this statute involves a “disproportionate” or “lopsided” ratio of unconstitutional applications is unfathomable.

I concur in the decision to refuse review.

FOOTNOTES

1.   See United States v. Hansen, 599 U.S. 762, 782 (2023) (listing as an example of “nonexpressive conduct” that “does not implicate the First Amendment at all” the conduct of “smuggling noncitizens into the country”).

2.   Tex. Penal Code § 20.05(a)(1).

3.   See Evans v. State, PD-0364-26; Persinger v. State, PD-0384-26; Washington v. State, PD-0614-26; see also Roberts v. State, — S.W.3d —, PD-0267-26, 2026 WL 2435456 (Tex. Crim. App. August 20, 2026) (Finley, J., dissenting).

4.   Cf. Ex parte Thompson, 442 S.W.3d 325, 334-37 (Tex. Crim. App. 2014) (holding that photography is expressive); id. at 337-39 (“When the intent is to do something that, if accomplished, would be unlawful and outside First Amendment protection, such as the intent to threaten or intimidate, such an intent might help to eliminate First Amendment concerns. But when the intent is something that, if accomplished, would constitute protected expression, such an intent cannot remove from the ambit of the First Amendment conduct that is otherwise protected expression. The Supreme Court and this Court have both explained that the First Amendment protects freedom of thought.”).

5.   Cf. State v. Johnson, 475 S.W.3d 860, 874-76, 878-79 (Tex. Crim. App. 2015) (referring to symbolism associated with the flag and documenting the regular use of flag-desecration statutes to prosecute protected expression).

6.   See 599 U.S. at 782 (emphasis in original).

7.   See Ex parte Ingram, 533 S.W.3d 887, 897 (Tex. Crim. App. 2017) (quoting from United States v. Williams, 553 U.S. 285, 300 (2008)) (brackets in Ingram omitted).

8.   Johnson, 475 S.W.3d at 875.

9.   See Hansen, 599 U.S. at 783.

10.   Id. at 770 (emphasis added).

11.   Id.

Parker, J., filed a concurring opinion.