Clay A. Roberts v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
OPINION

No. 04-24-00485-CR

Clay A. ROBERTS,
Appellant

v.

The STATE of Texas,
Appellee

From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 2023-0626-CR
Honorable Roland Andrade, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice
Lori I. Valenzuela, Justice
Lori Massey Brissette, Justice

Delivered and Filed: February 4, 2026

AFFIRMED AS MODIFIED

Appellant Clay A. Roberts was convicted by a jury of two counts of smuggling of persons

under Texas Penal Code section 20.05(a)(1)(A) and sentenced to forty-two months’

imprisonment. 1 In his first issue on appeal, Roberts argues that section 20.05(a)(1)(A) facially

violates the First Amendment. In his second and third issues, Roberts argues that the statute is field

1
The judgment signed by the trial court recites that the jury found Roberts guilty of smuggling but incorrectly cites
the statute for this offense as Texas Penal Code section 20.05(b) (subsection on punishment).
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and conflict preempted by federal law as applied to his prosecution. We affirm Roberts’ conviction

but sua sponte reform the trial court’s judgment to conform it with the jury’s verdict.

BACKGROUND

While on patrol in Val Verde County in the early morning, Department of Public Safety

Trooper Jordan Garner observed a car with a defective taillamp traveling along a public road. The

vehicle had tinted windows and was traveling from a Border Patrol checkpoint on a road known

by law enforcement to be one used for smuggling. Trooper Garner ran the license plate of the car

and noted that the vehicle was registered out of Kerr County. Trooper Garner engaged his lights,

and Roberts, who was driving the car, pulled over. After the car came to a stop, four passengers

immediately exited the vehicle, while Roberts remained inside. One passenger fled the scene, and

the other three passengers waited outside the vehicle. The passengers were in dirty clothes, covered

with brush and sticks. Trooper Garner gave Roberts commands to exit the vehicle, but Roberts

refused to comply. After approximately ten minutes, U.S. Border Patrol agents arrived to the scene

and assisted Trooper Garner in extracting Roberts from the vehicle. Once accomplished, Trooper

Garner arrested Roberts.

Border Patrol Agent Brett Price was one of the agents dispatched to the scene. According

to Agent Price, the three passengers who remained at the scene were in the country without lawful

immigration status. Further, according to Agent Price, Border Patrol agents commonly assist state

and local law enforcement agencies in the area because these local agencies do not have the

authority to determine immigration status.

Roberts was charged with violating a provision of Texas’s anti-smuggling statute, Texas

Penal Code section 20.05(a)(1)(A). He was convicted following his jury trial. After conviction,

Roberts filed a motion for new trial, raising a First Amendment facial challenge to section

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20.05(a)(1)(A) and an as-applied federal preemption challenge to his prosecution under that

statute. The trial court denied Roberts’ motion. Roberts now appeals from his conviction.

On appeal, Roberts raises the same constitutional challenges as in his motion for new trial.

We review these challenges de novo, and address them in turn. See Tex. Mut. Ins. Co. v. PHI Air

Med., LLC, 610 S.W.3d 839, 846 (Tex. 2020); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.

2013); State v. Flores, 679 S.W.3d 232, 243 (Tex. App.—San Antonio 2023, pet. ref’d).

FIRST AMENDMENT

In his first issue, Roberts argues that section 20.05(a)(1)(A) facially violates the First

Amendment to the United States Constitution. 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. PEN. CODE ANN. § 20.05(a)(1)(A).

Roberts argues,

Though it is a smuggling statute, [section 20.05(a)(1)(A)] does not require the State
to prove that the defendant actually concealed anyone, let alone concealed someone
wanted by law enforcement. Instead, the statute’s actus reus merely requires the
State to prove that the defendant committed an innocuous, common act — driving
with a passenger. The legislature didn’t enact this statute because it was concerned
about that conduct. The statute’s focus, then, is its intent element. And under the
statute’s intent element, that innocent act becomes criminal if the defendant did it
with the wrong thought — with the intent to conceal. This suggests that the
legislature intended to regulate thought.

According to Roberts, because the statute “focuses on regulating thought” and because it applies

a content-based restriction that distinguishes between favored and disfavored thought, 2 strict

scrutiny applies. See Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015) (“A law that is content

based on its face is subject to strict scrutiny[.]”). Roberts contends that the State has not and cannot

2
As Roberts puts it, “The driver can’t form the thought to conceal but can form other thoughts.”

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satisfy its burden to justify the law under the strict scrutiny standard, so the statute must be declared

unconstitutional on its face. See, e.g., Reed, 576 U.S. at 172.

A. Applicable Law

Facial challenges are “hard to win.” Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).

Ordinarily, a plaintiff cannot succeed unless he “‘establish[es] that no set of circumstances exists

under which the [law] would be valid,’ or he shows that the law lacks a ‘plainly legitimate sweep.’”

Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) and Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 449 (2008)). Nevertheless, “to provide breathing room for

free expression,” the Supreme Court has lowered a “very high bar” and “substituted a less

demanding though still rigorous standard” for First Amendment facial claims. Id. (quoting United

States v. Hansen, 599 U.S. 762, 769 (2023)). In this singular context, “the question is whether ‘a

substantial number of [the law’s] applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.’” Id. (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S.

595, 615 (2021)); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (“The

overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial

amount of protected speech is prohibited or chilled in the process.”).

B. Application

The first step in a First Amendment facial analysis is to assess the challenged law’s scope.

Moody, 603 U.S. at 724. Scope entails, “[w]hat activities, by what actors, do[es] the law[] prohibit

or otherwise regulate?” Id. Section 20.05(a)(1)(A) prohibits using a means of conveyance to

transport an individual if done with a specific intent — to conceal that individual from a peace

officer or special investigator. TEX. PENAL CODE ANN. § 20.05(a)(1)(A). On its face, the law

regulates an action — the use of a means of conveyance to transport an individual. For simplicity,

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we refer to this action as “transport.” That action, or actus reus, if done with the stated specific

intent, is a crime. See id.

The next step “is to decide which of the laws’ applications violate the First Amendment,

and to measure them against the rest.” Moody, 603 U.S. at 725. Roberts focuses only on

applications in which a person transports with a “conscious objective” to conceal that is not

manifested through any action. See TEX. PENAL CODE ANN. § 6.03(a) (“A person acts intentionally,

or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result.”). Roberts contends that

section 20.05(a)(1)(A) reaches an “innocuous, common act — driving with a passenger —” if done

“with the wrong thought.”

However, section 20.05(a)(1)(A) also applies to transport during which a person is actually

concealing another. In such cases, section 20.05(a)(1)(A) does not punish mere “preparation,

thought or fantasy.” See United States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (rejecting

First Amendment facial challenge to 18 U.S.C. § 2423(b), which criminalizes interstate travel for

the purpose of engaging in illicit sexual activity). Moreover, in such cases, the relationship between

a defendant’s “intent to conceal” and transport is neither incidental nor tangential because

concealment occurs during transport. See id. (making similar point with respect to 18 U.S.C. §

2423(b)). In fact, we have affirmed convictions under section 20.05(a)(1)(A) where there has been

actual concealment. See Elsik v. State, 678 S.W.3d 360, 364–65 (Tex. App.—San Antonio 2023),

aff’d, 714 S.W.3d 27 (Tex. Crim. App. 2024) (holding evidence sufficient for jury’s finding of

intent to conceal a front-seat passenger, where defendant drove a U-Haul truck, evaded detention

by speeding up when an officer activated his siren, and thirteen passengers were found under

blankets covering the bed of the truck after it was stopped); see also Abdullah v. State, No. 04-23-

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00773-CR, 2024 WL 3800661, at *8 (Tex. App.—San Antonio Aug. 14, 2024, pet. ref’d) (mem.

op., not designated for publication) (holding evidence of a ventilation hole in the roof of a U-Haul

truck and defendant’s false story about the contents of the truck was “evidence of a level of

covertness” that supported the jury’s finding of intent to conceal the three passengers found in the

back of the U-Haul); cf. United States v. Gamache, 156 F.3d 1, 8 (1st Cir. 1998) (observing that

the constitutionality of punishing “‘mere thought’ may pose an interesting subject for academic

discourse,” but “that is not the way [18 U.S.C. § 2423(b)] is being applied to appellant”).

Roberts also argues that an “unusual aspect” of section 20.05(a)(1)(A) is that “it

criminalizes an innocent act with the thought to commit an act that is also not criminal.” 3 However,

Roberts has not tied his “unusual aspect” argument to the balancing of constitutional and

unconstitutional applications that we must perform. See Moody, 603 U.S. at 725. Moreover, even

under Roberts’ framing, section 20.05(a)(1)(A) is not “unusual” in applications in which the statute

reaches intended concealment that is unlawful — for example, concealment made unlawful by

Texas Penal Code section 38.05, which creates an offense for concealment with an intent to hinder

the arrest of another. See TEX. PENAL CODE ANN. § 38.05.

Thus, the 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. This sweep is

“plainly legitimate.” See Moody, 603 U.S. at 723. The First Amendment protects the “freedom to

think as you will and to speak as you think,” 303 Creative LLC v. Elenis, 600 U.S. 570, 584 (2023)

(citation omitted), but its protections extend “only to conduct that is inherently expressive.”

3
Roberts’ “unusual aspect” argument relies on inapposite cases, in which the actus reus of the challenged criminal
statute is speech or expressive conduct. See Ex parte Thompson, 442 S.W.3d 325, 336 (Tex. Crim. App. 2014)
(concerning statute that regulated expressive conduct); Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013)
(concerning statute that regulated speech). Roberts does not contend that the actus reus of transport in section
20.05(a)(1)(A) is speech or expressive conduct. Additionally, Roberts cites Reno v. Am. Civil Liberties Union, 521
U.S. 844 (1997), for the proposition that “a statute can contain an actus rea and still focus on restricting thought;” but
Reno too is inapposite because, like Lo, it concerned “a content-based regulation of speech.” Id. at 871.

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Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006); see also U.S.

CONST., amend. I (“Congress shall make no law . . . abridging the freedom of speech.”); Bartnicki

v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to

impose an appropriate punishment on the person who engages in it.”). In 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. See

Wisconsin v. Mitchell, 508 U.S. 476, 482, 487–88 (1993) (holding statute enhancing punishments

for crimes committed because of race did not violate the First Amendment because the statute was

“aimed at conduct unprotected by the First Amendment” — not “offensive thought,” as the lower

court had held); Smith v. People of the State of Cal., 361 U.S. 147, 154 (1959) (“We might observe

that it has been some time now since the law viewed itself as impotent to explore the actual state

of a man’s mind.”).

In contrast, Roberts has not identified a single instance of prosecution under section

20.05(a)(1)(A) for thoughts to conceal without action in furtherance of concealment. See United

States v. Hansen, 599 U.S. 762, 782 (2023) (noting similar failure by defendant asserting First

Amendment facial challenge); cf. State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015)

(“[T]he danger that the statute will be unconstitutionally applied must be realistic and not based

on ‘fanciful hypotheticals.’” (citations omitted)). Assuming without deciding that section

20.05(a)(1)(A) could reach as far as Roberts posits, and further assuming that application of the

statute to thoughts to conceal without action in furtherance would violate the First Amendment,

we cannot say that such applications are “substantial” compared to the statute’s constitutional

applications. See Moody, 603 U.S. at 718; Hansen, 599 U.S. at 784–85 (assuming statute reached

some protected speech but, nevertheless, overruling First Amendment facial challenge because

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“the ratio of unlawful-to-lawful applications is not lopsided enough to justify the ‘strong medicine’

of facial invalidation for overbreadth.”); see also NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164,

1192 (N.D. Cal. 2025) (“[E]ven where strict scrutiny applies, the plaintiff must show that the

applications of the statute that fail strict scrutiny are substantial in comparison to any applications

of the statute that do not.”). It is doubtful that the State would prosecute if intent to conceal was

alleged to be a mental impression only because the State would face a daunting challenge to prove

its case beyond a reasonable doubt. See United States v. Williams, 553 U.S. 285, 303 (2008) (“The

mere fact that one can conceive of some impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.” (citation omitted)); United States v. Kaechele,

466 F. Supp. 2d 868, 896 (E.D. Mich. 2006) (“The same ‘difficulty of proof’ . . . likely will serve

as a powerful deterrent against the Government prosecuting an individual [under 18 U.S.C. §

2423(b)] who merely travels overseas with impure thoughts unaccompanied by any objective acts

indicative of an unlawful intent.”); cf. Ex parte Barrett, 608 S.W.3d 80, 96 (Tex. App.—Dallas

2020, pet. ref’d) (rejecting First Amendment facial challenge and noting availability of post-

conviction as-applied challenge if “the statute is applied overzealously and unrealistically”).

Therefore, having considered the scope of section 20.05(a)(1)(A) and explored its full set

of applications, and having concluded that any unconstitutional applications are not substantial in

comparison to constitutional ones, we overrule Roberts’ First Amendment facial challenge. See

Moody, 603 U.S. at 718.

PREEMPTION

Roberts argues in his second and third issues that section 20.05(a)(1)(A) is preempted by

federal law as applied to his prosecution.

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A. Applicable Law

i. Preemption

The Supremacy Clause of the U.S. Constitution provides that the federal Constitution,

statutes, and treaties constitute “the supreme Law of the Land.” U.S. CONST. Art. VI, cl. 2. In

effect, the clause provides “a rule of decision” for determining whether federal or state law applies

in a particular situation. Kansas v. Garcia, 589 U.S. 191, 202 (2020) (citation omitted). “If federal

law imposes restrictions or confers rights on private actors and a state law confers rights or imposes

restrictions that conflict with the federal law, the federal law takes precedence and the state law is

preempted.” Id. (citation omitted).

Preemption will generally fall into three categories: express preemption, implicit field

preemption, or implicit conflict preemption. See Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112,

120 (Tex. 2024). “There is no doubt that Congress may withdraw specified powers from the States

by enacting a statute containing an express preemption provision.” Arizona v. United States, 567

U.S. 387, 399 (2012). “State law must also give way to federal law in at least two other

circumstances.” Id. “First, the States are precluded from regulating conduct in a field that

Congress, acting within its proper authority, has determined must be regulated by its exclusive

governance.” Id. “Second, state laws are preempted when they conflict with federal law.” Id.

In field preemption cases, the first step is to identify the specific field allegedly preempted.

Kansas, 589 U.S. at 208. We then consider whether Congress has determined that the field must

be regulated by its exclusive governance, to the exclusion of the States. Arizona, 567 U.S at 399.

Congressional “intent to displace state law altogether can be inferred from a framework of

regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where

there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude

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enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)). “Where Congress occupies an entire field . . . even complementary state

regulation is impermissible.” Id. at 401.

“In preemption analysis, courts should assume that the historic police powers of the States

are not superseded unless that was the clear and manifest purpose of Congress.” Id. at 400 (citations

omitted). The States have traditionally occupied criminal law enforcement; however, they have

not traditionally occupied immigration enforcement. Kansas, 589 U.S. at 210, 212 (noting that

while federal law “makes a single sovereign responsible for maintaining a comprehensive and

unified system to keep track of aliens within the Nation’s borders,” criminal law enforcement has

been and is “primarily a responsibility of the States”) (quoting Arizona, 567 U.S. at 401–02).

Conflict preemption occurs “where compliance with both federal and state regulations is a

physical impossibility, and those instances where the challenged state law stands as an obstacle to

the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 567

U.S. at 399. “What is a sufficient obstacle is a matter of judgment, to be informed by examining

the federal statute as a whole and identifying its purpose and intended effects[.]” Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 373 (2000). Conflict preemption may arise when a state

grants state actors “the power to bring criminal charges against individuals for violating a federal

law even in circumstances where federal officials in charge of the comprehensive scheme

determine that prosecution would frustrate federal policies.” Arizona, 567 U.S. at 402. Conflict

preemption may also arise when a state imposes its own penalties for a federal offense. Id.

However, some overlap of state and federal laws is allowed, as the Supreme Court observed:

In recent times, the reach of federal criminal law has expanded, and there are now
many instances in which a prosecution for a particular course of conduct could be
brought by either federal or state prosecutors. Our federal system would be turned
upside down if we were to hold that federal criminal law preempts state law

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whenever they overlap, and there is no basis for inferring that federal criminal
statutes preempt state laws whenever they overlap. Indeed, in the vast majority of
cases where federal and state laws overlap, allowing the States to prosecute is
entirely consistent with federal interests.

Kansas, 589 U.S. at 212.

ii. As-Applied Preemption

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.” Id.

In State v. Flores, we held that section 20.05(a)(1)(A) was not facially preempted, but we

did not address whether the statute was preempted as applied to the appellants in that case because,

unlike Roberts, the appellants had not briefed the issue. Flores, 679 S.W.3d at 244.

B. Application

Roberts does not argue that section 20.05(a)(1)(A) was expressly preempted. Instead, he

argues the statute was implicitly preempted, as applied to his prosecution, because Congress

completely ousted the States from regulating in the “field of noncitizen smuggling,” and because

Roberts’ prosecution conflicts with federal immigration laws and prosecutorial prerogatives.

For field preemption, Roberts identifies the relevant field as “noncitizen smuggling” or

“the smuggling of noncitizens.” See Kansas, 589 U.S. at 208. He argues the manner the State

applied section 20.05(a)(1)(A) to him was field and conflict preempted by the federal anti-

smuggling statute, 8 U.S.C. section 1324, which prohibits:

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(1)(A) Any person who —

(i) knowing that a person is an alien, brings to or attempts to bring to the United
States in any manner whatsoever such person at a place other than a designated port
of entry or place other than as designated by the Commissioner, regardless of
whether such alien has received prior official authorization to come to, enter, or
reside in the United States and regardless of any future official action which may
be taken with respect to such alien;

(ii) knowing or in reckless disregard of the fact that an alien has come to, entered,
or remains in the United States in violation of law, transports, or moves or attempts
to transport or move such alien within the United States by means of transportation
or otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered,
or remains in the United States in violation of law, conceals, harbors, or shields
from detection, or attempts to conceal, harbor, or shield from detection, such alien
in any place, including any building or any means of transportation; [or]

(iv) encourages or induces an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such coming to, entry, or residence
is or will be in violation of law[,]

shall be punished as provided in subparagraph (B).

8 U.S.C.A. § 1324(a)(1)(A)(i-iv). Under this statute, the federal government must prove the

individual smuggled was illegally present and the alleged smuggler knew or recklessly disregarded

that the individual smuggled lacked legal authorization. See, e.g., United States v. Foreman, 84

F.4th 615, 622 (5th Cir. 2023) (“[T]he elements of the crime of transporting illegal aliens in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) are that: (1) an alien was in the country illegally; (2) the

defendant knew or recklessly disregarded the fact that the alien was illegally present in the United

States; and (3) the defendant transported the alien with the intent to further the alien’s unlawful

presence.”). Thus, “[t]he aliens’ status is an element of the crime” and key to sustaining a

conviction under the federal law. United States v. Alvarado–Machado, 867 F.2d 209, 212 (5th Cir.

1989).

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Federal and state courts generally agree that under 8 U.S.C. section 1324, “state regulation

that specifically targets the smuggling of noncitizens is preempted because the clear and manifest

purpose of Congress was to completely oust state power from this area of regulation leaving no

room for analogous state crimes.” Flores, 679 S.W.3d at 244; see also Ga. Latino All. for Hum.

Rts. v. Governor of Ga., 691 F.3d 1250, 1264 (11th Cir. 2012) (GLAHR) (“The comprehensive

nature of these federal provisions is further evident upon examination of how § 1324 fits within

the larger context of federal statutes criminalizing the acts undertaken by aliens and those who

assist them in coming to, or remaining within, the United States.”); United States v. South

Carolina, 720 F.3d 518, 531 (4th Cir. 2013) (“The federal government has clearly occupied the

field of regulating the concealing, harboring, and transporting of unlawfully present aliens.”); Valle

del Sol Inc. v. Whiting, 732 F.3d 1006, 1025 (9th Cir. 2013) (“[I]n developing the scheme for

prohibiting and penalizing the harboring of aliens, Congress specifically considered the

appropriate level of involvement for the states. Section 1324(c) allows state and local law

enforcement officials to make arrests for violations of § 1324. Congress did not, however, grant

states the authority to prosecute § 1324 violations, but instead vested that power exclusively in the

federal authorities.”).

Courts generally find state human smuggling statutes facially field preempted where the

immigration status of the individual smuggled, concealed, or transported is an explicit element of

the crime, whether by the alleged smuggler’s knowledge of the smuggled person’s immigration

status, or based directly on the person’s status. See, e.g., GLAHR, 691 F.3d at 1256 (describing

Georgia law for “transporting or moving an illegal alien,” which made it a crime for a person,

“while committing another criminal offense, [to] knowingly and intentionally transport[] or

move[] an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the

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alien in the United States.” (emphasis added)); United Staes v. Alabama, 691 F.3d 1269, 1285

(11th Cir. 2012) (describing Alabama law criminalizing “(1) concealing, harboring, or shielding

an unlawfully present alien from detection, or attempting to do so; (2) encouraging or inducing an

unlawfully present alien to “come to or reside in” Alabama; (3) transporting, attempting to

transport, or conspiring to transport an unlawfully present alien, including an alien’s conspiracy to

be transported; and (4) harboring an unlawfully present alien by entering into a rental agreement

with that alien.” (emphasis added)); South Carolina, 720 F.3d at 530 (describing South Carolina

law that made “it a state felony to ‘transport, move or attempt to transport’ or ‘conceal, harbor or

shelter’ a person ‘with intent to further that person’s unlawful entry into the United States’ or to

help that person avoid apprehension or detection.” (emphasis added)); Valle del Sol, 732 F.3d at

1013 (describing Arizona law making it unlawful to “[c]onceal, harbor or shield or attempt to

conceal, harbor or shield an alien from detection in any place in this state, including any building

or any means of transportation, if the person knows or recklessly disregards the fact that the alien

has come to, has entered or remains in the United States in violation of law.” (emphasis added)).

Thus, several courts have found that the federal government has ousted the states from enacting

smuggling statutes where it is necessary to establish a noncitizen’s illegal presence to sustain a

conviction. See Flores, 679 S.W.3d at 244 (“[S]tate regulation that specifically targets the

smuggling of noncitizens is preempted[.]” (emphasis added)).

However, 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. In fact, Agent Price testified at Roberts’ trial that Border Patrol agents are regularly

called to assist state and local law enforcement agencies because these agencies lack the authority

to make immigration determinations.

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More to the point for Roberts’ as-applied challenge, his conviction did not turn on

immigration status. Prosecutors alleged only his intent to conceal individuals from law

enforcement, and the trial evidence indicated that Roberts wished to conceal his passengers from

all law enforcement. Roberts had been driving in the early morning in a vehicle with tinted

windows along a corridor known by law enforcement to be one used by smugglers. Roberts’

passengers were covered in dirt, which, in conjunction with the route chosen, could suggest that

his passengers had been hiding in the brush.

Nothing required the State to prove the passengers’ unlawful status or that Roberts knew

his passengers’ actual immigration status. In this respect, section 20.05(a)(1)(A) is much like the

fraud statute the Supreme Court considered in Kansas v. Garcia, which only indirectly implicated

the federal immigration scheme. In Kansas v. Garcia, “Kansas law made it a crime to commit

‘identity theft’ or engage in fraud to obtain a benefit.” 589 U.S. at 195. The defendants in that case,

three noncitizens without work authorization, were “convicted under these provisions for

fraudulently using another person’s Social Security number on state and federal tax-withholding

forms that they submitted when they obtained employment.” Id. Like section 20.05(a)(1)(A), the

Kansas statute did not contain any express provisions regarding immigration status of the person

committing the crime. Nevertheless, the defendants argued that because the alleged fraud related

to work authorization in the United States, it necessarily implicated the federal employment

verification system and, the defendants further argued, federal regulation implicitly precluded state

regulation in “the field of fraud on the federal employment verification system.” Id. at 208–09.

The Court rejected the defendants’ argument, noting that while federal law “makes a single

sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens

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within the Nation’s borders[,] federal law does not create a comprehensive and unified system

regarding the information that a State may require employees to provide.” Id.

Likewise, with smuggling, while federal law provides a comprehensive and uniform

system for “determin[ing] . . . who should or should not be admitted into the country,” DeCanas

v. Bica, 424 U.S. 351, 355 (1976), federal law does not create a comprehensive and unified system

regarding the concealment of persons from law enforcement. As we noted in Flores: “Federal law

specifically allows for state laws that target traffickers of noncitizens[, and] Congress did not

intend to preempt neutral state smuggling statutes like section 20.05(a)(1)(A).” Flores, 679 S.W.3d

at 245 (citing 22 U.S.C.A. § 7105(c)(3)(A), (C)). Roberts was prosecuted under this neutral statute,

and his conduct was criminal regardless of his passengers’ immigration status. We hold, on this

record, that Roberts’ prosecution was not field preempted. See Kansas, 589 U.S. at 208–09; Flores,

679 S.W.3d at 245; see also Gutierrez v. State, 721 S.W.3d 639, 655 (Tex. App.—Corpus Christi–

Edinburg 2025, pet. filed) (holding section 20.05(a)(1)(A) was not 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”);

Minor v. State, No. 07-23-00397-CR, 2025 WL 211324, at *3 (Tex. App.—Amarillo Jan. 15, 2025,

no pet.) (mem. op., not designated for publication) (rejecting appellant’s as-applied preemption

challenge where trial evidence “demonstrate[d] Appellant was convicted not because of his

passengers’ citizenship status, but because he intended to conceal individuals from law

enforcement. . . . [S]uch conduct is criminalized regardless of immigration status.”).

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, 567 U.S. at 399;

Alabama, 691 F.3d at 1287 (holding Alabama’s anti-harboring statute “undermines the intent of

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Congress to confer discretion on the Executive Branch in matters concerning immigration.”);

South Carolina, 720 F.3d at 531–32 (finding conflict preemption where state anti-smuggling

statute created “an obstacle to the smooth functioning of federal immigration law, improperly

place[d] in the hands of state officials the nation’s immigration policy, and strip[ped] federal

officials of the authority and discretion necessary in managing foreign affairs.”); Valle del Sol, 732

F.3d at 1027 (“By allowing state prosecution of the same activities in state court, Arizona has

conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized

aliens in a manner unaligned with federal immigration enforcement priorities.”). 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. See Flores, 679 S.W.3d at 246–47.

Evidence from Roberts’ trial, however, does not show that his prosecution interfered with

federal law or federal discretion over immigration-related prosecutions. Instead, the evidence

shows that Trooper Garner, a Texas law enforcement officer, arrested Roberts with assistance from

Border Patrol agents. According to trial evidence, state officers did not determine immigration

status or enforce federal immigration laws; these tasks were left to the Border Patrol agents who

arrived on the scene to assist. The record does not suggest that federal prosecutors wished to pursue

federal charges against Roberts, and, as described above, Roberts’ conviction did not turn on the

immigration status of his passengers. On this record, we hold that Roberts’ prosecution under

section 20.05(a)(1)(A) was not preempted through conflict with federal law. See 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.”);

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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)).

CLERICAL ERROR IN THE WRITTEN JUDGMENT

The trial court’s judgment identifies the “Statute for Offense” as “Sec. 20.05(b) Penal

Code.” Roberts, however, was charged and convicted under Texas Penal Code section

20.05(a)(1)(A). We have the authority to modify incorrect judgments when the necessary

information is available. TEX. R. APP. P. 43.2(b); see Minor, 2025 WL 211324. Accordingly, we

modify the judgment of conviction to state that the “Statute for Offense” is “20.05(a)(1)(A) Penal

Code.”

CONCLUSION

We affirm the judgment of the trial court as modified.

Rebeca C. Martinez, Chief Justice

PUBLISH

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