PD-0370-26 GRIFFIN, DESHAWN DAWAYNE FROM KINNEY COUNTY - 04-24-00414-CR — CONCURRING OPINION JUDGE PARKER [ PDF/229 KB ]

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0370-26
DESHAWN DAWAYNE GRIFFIN, Appellant
v.
THE STATE OF TEXAS
CONCURRENCE TO REFUSAL OF
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
KINNEY COUNTY
PARKER, J., filed a concurring opinion.
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
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”).

GRIFFIN CONCURRENCE — 2
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 us3—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
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

GRIFFIN CONCURRENCE — 3
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
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.

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“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.
Filed: October 15, 2026
Publish
9 See Hansen, 599 U.S. at 783.
10 Id. at 770 (emphasis added).
11 Id.