Unreported / Non-Citable
Background
On October 27, 2023, Larry Washington stopped his vehicle on Highway 57 in Maverick County to pick up two women emerging from the brush. A passing motorist reported the incident to a nearby Texas Department of Public Safety investigator conducting operations on the road. When law enforcement initiated a traffic stop for an unregistered vehicle, both passengers in the backseat were positioned below the window line and not immediately visible.
Washington initially told investigators he picked up the women to get them to safety. However, during questioning by DPS Criminal Investigations Division Agent Teresa Estrada, he changed his account and admitted that someone he called “Boss” had instructed him to pick up “two people on this side of the checkpoint,” place them in the trunk, and drive them to Houston. The two female passengers were taken into custody by Border Patrol.
Washington was convicted by jury trial of one count of smuggling of persons under Texas Penal Code § 20.05(a)(1)(A) and sentenced to five years’ imprisonment. He appealed, raising seven issues challenging the constitutionality of the smuggling statute and the sufficiency of evidence supporting his conviction.
The Court’s Holding
The Fourth Court of Appeals affirmed Washington’s conviction in full. The court rejected Washington’s First Amendment facial challenge to the smuggling statute, relying on its prior decision in Roberts v. State (decided February 4, 2026), which held that any unconstitutional applications of the statute are not substantial compared to its constitutional applications.
On Washington’s as-applied First Amendment argument, the court held that § 20.05(a)(1)(A) punishes non-expressive conduct and therefore raises no First Amendment concerns. The statute criminalizes the act of transporting an individual with intent to conceal—not merely harboring the thought of concealment. Washington was prosecuted for conduct (picking up passengers from the brush, receiving specific instructions to place them in the trunk, driving them to Houston, and positioning them to avoid detection by law enforcement), not for protected expression or thought.
The court also rejected Washington’s vagueness challenges, both facial and as-applied. The term “conceal” is commonly understood to mean “hide, remove from sight or notice, or keep from discovery or observation” and is sufficiently clear to provide notice of prohibited conduct. Critically, “intent to conceal” covers not only physical concealment but also efforts to prevent law enforcement from discovering or identifying the smuggled individual. Washington’s conduct—picking up passengers from the roadside, their crouching position in the vehicle when police approached, his changing explanations, and his admission of instructions to place them in the trunk—falls squarely within the statute’s core proscriptions. The court further held that the statute establishes minimal guidelines for law enforcement and does not require proof of the passengers’ immigration status, distinguishing it from field preemption cases. Federal immigration law does not conflict with state prosecution under this neutral statute.
Key Takeaways
- Texas’s smuggling statute is constitutional under the First Amendment because it regulates non-expressive conduct (transporting individuals with intent to conceal) rather than speech or thought, regardless of what thoughts motivated the defendant.
- “Intent to conceal” extends beyond physical concealment to include efforts to prevent law enforcement from discovering or identifying smuggled individuals, and intent may be inferred from circumstantial evidence including passengers’ positioning, changing statements, and concealment instructions received.
- Prosecution for state smuggling does not require proof that passengers were noncitizens or that the defendant knew their immigration status; the statute applies neutrally to all smuggling conduct regardless of the passengers’ legal status.
- Federal immigration law does not preempt or conflict with state smuggling prosecutions under § 20.05(a)(1)(A), and the absence of federal prosecution does not bar state charges.
Why It Matters
This decision, following closely on Roberts v. State, firmly establishes the constitutionality of Texas’s human smuggling statute and provides prosecutors with broad latitude in prosecuting smuggling cases. By holding that “intent to conceal” encompasses efforts to hide individuals from law enforcement—not just physical concealment—the court enables conviction based on circumstantial evidence of concealment-related conduct. The ruling eliminates requirements that prosecutors prove the passengers’ immigration status or that the defendant knew their status, effectively decoupling state smuggling law from federal immigration enforcement.
The decision is significant for law enforcement and prosecutors working on human smuggling cases along the Texas-Mexico border. It signals that state courts will uphold convictions where evidence demonstrates concealment-related conduct and intent, even absent dramatic physical concealment, and establishes that constitutional challenges to the statute’s breadth or vagueness are unlikely to succeed. For defendants and their counsel, the decision forecloses several constitutional arguments and suggests that challenges will focus narrowly on specific facts rather than facial constitutional infirmities.