Justin Michael Persinger v. The State of Texas

Summary

The Fourth Court of Appeals of Texas affirmed Justin Michael Persinger’s conviction for smuggling of persons with intent to obtain a pecuniary benefit under Texas Penal Code section 20.05. The court rejected his as-applied field and conflict preemption challenges based on federal immigration law and his facial First Amendment challenge. The court issued the opinion as an unpublished memorandum opinion.

Holdings

1. Persinger's prosecution under Texas Penal Code section 20.05(a)(1)(A) was not field preempted because the statute did not require proof of the passengers' unlawful immigration status and criminalized conduct independent of that status.
2. Persinger's prosecution was not conflict preempted by federal law.
3. Section 20.05(a)(1)(A) does not facially violate the First Amendment because any unconstitutional applications are not substantial in comparison with the statute's constitutional applications.
4. Persinger waived his as-applied First Amendment challenge by failing to provide substantive analysis and record references.

Questions Presented

1. Whether Texas Penal Code section 20.05(a)(1)(A) was field preempted by federal law as applied to Persinger's prosecution.
2. Whether Persinger's prosecution under section 20.05(a)(1)(A) was conflict preempted by federal immigration law or federal prosecutorial discretion.
3. Whether section 20.05(a)(1)(A) facially violated the First Amendment.
4. Whether Persinger's as-applied First Amendment challenge was waived for inadequate briefing.

Disposition

affirmed