Justin Michael Persinger v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-24-00637-CR

Justin Michael PERSINGER,
Appellant

v.

The STATE of Texas,
Appellee

From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 23-12-08710-MCRAJA
Honorable Amado J. Abascal III, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice
Lori I. Valenzuela, Justice
Lori Massey Brissette, Justice

Delivered and Filed: April 29, 2026

AFFIRMED

Appellant Justin Michael Persinger appeals his conviction for one count of smuggling of

persons with intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(a)(1)(A)

and (b)(1)(C). Following a jury trial, Appellant was convicted and sentenced to four years’

imprisonment. In his first and second issues, Appellant argues the statute is field and conflict

preempted by federal law as applied to his prosecution. In his third issue on appeal, Appellant
04-24-00637-CR

argues section 20.05(a)(1)(A) facially violates the First Amendment. 1 We affirm Appellant’s

conviction.

BACKGROUND

At approximately 10:47 p.m. on May 4, 2023, Department of Public Safety Trooper Justin

Craig was patrolling U.S. Highway 57 in Maverick County as part of Operation Lone Star.

According to his testimony, while parked two to three miles north of the Border Patrol checkpoint,

in an area known for smuggling, Trooper Craig observed a small passenger car stop on the shoulder

of Highway 57. Trooper Craig heard the car honk its horn and observed multiple people emerge

from the brush and enter the vehicle. The driver, later identified as Justin Michael Persinger,

conducted a U-turn and began driving away from the area. While following the vehicle, Trooper

Craig saw people turning around to look at him through the back windshield before “quickly

crouch[ing] back down.” Before Trooper Craig initiated his emergency lights, Appellant suddenly

stopped on the shoulder of the highway and six individuals ran out of the vehicle. Trooper Craig

focused on apprehending the driver, and arrested Appellant for human smuggling. The passengers

were never located or identified, but Trooper Craig found two foreign identification cards, one

from Mexico and one from Honduras, in Appellant’s vehicle. After obtaining Appellant’s consent,

Trooper Craig photographed Appellant’s text messages that coordinated the pickup and payment

for transporting the individuals. Appellant was indicted for one count of smuggling of persons with

intent to obtain a pecuniary benefit under Texas Penal Code section 20.05(b)(1)(C). Appellant was

1
Appellant’s motion for new trial and certain parts of Appellant’s brief assert an as-applied First Amendment
challenge to Texas Penal Code 20.05(a)(1)(A). However, Appellant’s brief only provides substantive analysis with
respect to a facial First Amendment challenge. Because Appellant’s brief fails to provide substantive analysis or record
references with respect to an as-applied First Amendment challenge, we hold that such a challenge is waived due to
inadequate briefing. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”); see also Wolfe v. State, 509 S.W.3d
325, 342–45 (Tex. Crim. App. 2017) (holding court of appeals did not err by declining to consider matter appellant
failed to brief).

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convicted following a jury trial and the jury assessed punishment at four years’ imprisonment.

After conviction, Appellant filed a motion for new trial. The motion was denied by operation of

law, and this appeal followed.

STANDARDS OF REVIEW

We review Appellant’s constitutional challenges de novo. See Tex. Mut. Ins. Co. v. PHI Air

Med., LLC, 610 S.W.3d 839, 846 (Tex. 2020) (“Preemption is a question of law reviewed de

novo.”); State v. Flores, 679 S.W.3d 232, 243 (Tex. App.—San Antonio 2023, pet. ref’d) (holding

the same); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (“Whether a statute is facially

constitutional is a question of law reviewed de novo.”).

AS-APPLIED PREEMPTION

In his first and second issues, Appellant argues that section 20.05(a)(1)(A) is field and

conflict preempted by federal law as applied to his prosecution.

A. Applicable Law

For as-applied constitutional challenges, we must determine whether there was a

constitutional violation in the application of the statute to the defendant. See State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (“A litigant raising only an ‘as applied’

challenge concedes the general constitutionality of the statute, but asserts that the statute is

unconstitutional as applied to his particular facts and circumstances.”). This court analyzed a

similar as-applied field and conflict preemption challenge to section 20.05(a)(1)(A) in Roberts v.

State, No. 04-24-00485-CR, 2026 WL 290378, at *5–9 (Tex. App.—San Antonio Feb. 4, 2026,

no pet. h). As such, while we will address the facts specific to Appellant’s case for his as-applied

challenge, the legal principles discussed in Roberts guide our analysis here.

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B. Analysis

Appellant argues that federal law preempts section 20.05(a)(1)(A) as applied to his case

because Congress completely ousted the States from regulating in the “field of noncitizen

smuggling” and because Appellant’s prosecution conflicts with federal immigration laws and

prosecutorial prerogatives.

As we stated in Roberts, “unlike the instances where courts have found state statutes to be

field preempted, section 20.05(a)(1)(A) does not require prosecutors to prove a noncitizen’s illegal

presence in the United States.” Id. at *7. Here, similarly, Appellant’s conviction did not turn on

proof of the passengers’ immigration status. The evidence presented at trial focused on Appellant’s

intent to conceal the individuals from all law enforcement and his intent to obtain a pecuniary

benefit. The State was not required to prove the passengers’ unlawful status or that Appellant knew

his passengers’ actual immigration status. Therefore, because Appellant was prosecuted under a

neutral statute, and his conduct was criminal regardless of the passengers’ immigration status, we

hold that Appellant’s prosecution was not as-applied field preempted. See Id. at *8; Kansas v.

Garcia, 589 U.S. 191, 208–09 (2020); State v. Flores, 679 S.W.3d 232, 245 (Tex. App.—San

Antonio 2023, pet. ref’d). See also Gutierrez v. State, 721 S.W.3d 639, 655 (Tex. App.—Corpus

Christi–Edinburg 2025, pet. ref’d) (holding section 20.05(a)(1)(A) was not as-applied field

preempted where the evidence showed Appellant “was not convicted merely because of the

citizenship status of the back seat passengers, but because she intended to conceal those individuals

from law enforcement”).

As to conflict preemption, state anti-smuggling and harboring laws that target non-citizens

may be preempted if they conflict with federal immigration law. See Arizona v. United States, 567

U.S. 387, 399 (2012) (describing conflict preemption as “cases where compliance with both

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federal and state regulations is a physical impossibility” and “instances where the challenged law

stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

Congress.”). “With an as-applied conflict preemption challenge, the application of the law must

conflict with federal law’s comprehensive immigration scheme or with the federal government’s

discretion over immigration related prosecutions.” Roberts, 2026 WL 290378, at *8 (citing Flores,

679 S.W.3d at 246–47). However, evidence from Appellant’s trial does not show that his

prosecution interfered with federal law or federal discretion over immigration-related

prosecutions. Further, there is no evidence in the record to suggest that federal prosecutors wished

to pursue federal charges against Appellant. On this record, we hold that Appellant’s prosecution

under section 20.05(a)(1)(A) was not preempted through conflict with federal law. See Roberts,

2026 WL 290378, at *8; see also Kansas, 589 U.S. at 211 (“the mere fact that state laws like the

Kansas provisions at issue overlap to some degree with federal criminal provisions does not even

begin to make a case for conflict preemption”); Gutierrez, 721 S.W.3d at 657 (citing Kansas in

rejecting appellant’s as-applied conflict preemption argument regarding section 20.05(a)(1)(A)).

FIRST AMENDMENT

Appellant, in his brief, argues section 20.05(a)(1)(A) facially violates the First Amendment

to the United States Constitution. From our review, the arguments in this case are substantively

the same as those in Roberts v. State, in which this Court rejected a First Amendment facial

challenge and concluded that any unconstitutional applications of section 20.05(a)(1)(A) are not

substantial in comparison to the constitutional ones. 2026 WL 290378, at *2–4. Accordingly, for

the reasons articulated in Roberts, we overrule Appellant’s First Amendment facial challenge. See

id.

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CONCLUSION

We affirm the judgment of the trial court.

Lori Massey Brissette, Justice

DO NOT PUBLISH

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