Ex parte Duckens
| Decision Date | 04 October 2022 |
| Docket Number | 14-21-00576-CR |
| Citation | 654 S.W.3d 571 |
| Parties | EX PARTE Medger Chauncey DUCKENS |
| Court | Texas Court of Appeals |
Mark W. Bennett, Houston, for Appellant.
Jessica Alane Caird, Kim K. Ogg, Andrew Fletcher, Houston, for State of Texas.
Panel consists of Justices Jewell, Zimmerer, and Hassan
In this appeal from a judgment denying a pretrial application for writ of habeas corpus, appellant Medger Chauncey Duckens contends that Penal Code section 43.25, which prohibits sexual performance by a child, is facially overbroad and violates the free speech clauses of the United States and Texas Constitutions. See Tex. Penal Code § 43.25 ; U.S. Const. amend. I ; Tex. Const. art. I, § 8. We affirm.
Penal Code section 43.25, entitled "Sexual Performance by a Child," provides that a person commits an offense if:
knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.
Tex. Penal Code § 43.25(b). "Sexual conduct" includes lewd exhibition of the genitals. Id. § 43.25(a)(2). "Sexual performance" means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age. Id. § 43.25(a)(1).
A Harris County grand jury indicted appellant on one count of sexual performance by a child in violation of Penal Code section 43.25. The indictment alleged that appellant:
on or about June 30, 2011, did then and there unlawfully, and knowing the character and content thereof, employ, authorize, or induce a child younger than eighteen years of age, namely K.D., hereafter called the Complainant, to engage in sexual conduct, to-wit: the complainant lewdly exhibited her genitals.
Appellant sought pretrial dismissal of the charge in an application for writ of habeas corpus, in which he asserted that section 43.25 is unconstitutional. Specifically, he asserted that section 43.25 is facially overbroad for two reasons:
The trial court held a hearing at which no evidence was taken. Following the hearing, the trial court denied appellant's request to dismiss the indictment. Appellant timely appealed.
In his first two issues, appellant contends that section 43.25(b) is facially unconstitutional under federal and state constitutional free-speech guarantees. Further, appellant asserts in his third issue that the prohibited conduct falls outside the scope of acceptable regulation on content-based speech, such as restrictions on incitement speech or speech integral to criminal conduct. According to appellant, the punishable conduct at issue is not a type of unprotected speech, the prevention and punishment of which has " ‘never been thought to raise any Constitutional problem.’ " United States v. Stevens , 559 U.S. 460, 469, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ).
We generally review a trial court's ruling on an application for writ of habeas corpus using an abuse-of-discretion standard, and we view any evidence in the light most favorable to that ruling and defer to implied factual findings supported by the record. Ex parte Fusselman , 621 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). Pretrial habeas corpus proceedings are separate criminal actions, and the applicant has the right to an immediate appeal before trial begins. Id. (citing Greenwell v. Court of Appeals for the Thirteenth Judicial Dist. , 159 S.W.3d 645, 649-50 (Tex. Crim. App. 2005) ). A defendant may seek pretrial habeas relief only in limited circumstances, including a facial challenge to the constitutionality of a statute. Greenwell , 159 S.W.3d at 649-50 ().
A facial challenge attacks the statute itself rather than the statute's application to the defendant. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Generally, to mount a successful facial constitutional challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid or that the statute lacks any plainly legitimate sweep. Id. ; see also Stevens , 559 U.S. at 472, 130 S.Ct. 1577. But in the case of statutes that encroach upon activity protected by the First Amendment, the challenger may also bring a "substantial overbreadth" challenge. Fusselman , 621 S.W.3d at 116. Under such a challenge, a statute may be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Stevens , 559 U.S. at 473, 130 S.Ct. 1577 ; see also Ashcroft v. Free Speech Coal. , 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (). This type of facial challenge is available when a statute restricts or punishes speech based upon its content. Fusselman , 621 S.W.3d at 116.
A law is "content-based" if it distinguishes between favored and disfavored speech on the basis of the views expressed or if it is necessary to review the content of the speech in order to determine whether the speaker violated the law. Ex parte Thompson , 442 S.W.3d 325, 345 (Tex. Crim. App. 2014). A content-based regulation that distinguishes favored from disfavored speech based on the views expressed is presumptively invalid, and the government bears the burden to rebut that presumption. Ex parte Lo , 424 S.W.3d 10, 15 (Tex. Crim. App. 2013). We apply the "most exacting scrutiny to regulations that suppress, disadvantage, or impose different burdens on speech because of its content." Id. To satisfy such a strict scrutiny review, a statute that regulates speech must be necessary to serve a compelling state interest and be narrowly drawn. Id.
To be considered narrowly drawn, a law must employ the least restrictive means to achieve its goal and a close nexus must exist between the state's compelling interest and the restriction. Id. The statute does not survive strict scrutiny review if there is a less restrictive means of meeting the state's compelling interest that would be at least as effective as the statute under review. Id. at 15-16. But a statute may not be held overbroad merely because it is possible to conceive of some impermissible applications. United States v. Williams , 553 U.S. 285, 303, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).
Appellant raises a substantial overbreadth challenge. The first step is to construe the challenged statute. Fusselman , 621 S.W.3d at 117 ; Ex parte Dehnert , 605 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd). Penal Code section 43.25(b) provides that a person commits an offense if:
knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.
Tex. Penal Code § 43.25(b).1 "Sexual conduct" under this statute includes "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola." Id. § 43.25(a)(2). "Sexual performance" means "any performance or part thereof that includes sexual conduct by a child younger than 18 years of age." Id. § 43.25(a)(1). "Performance" includes "any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons." Id. § 43.25(a)(3). "Simulated" means "the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks." Id. § 43.25(a)(6).
In his first issue, appellant argues, " Section 43.25(b) is facially overbroad because it punishes the employment, authorization, or inducement of consensual expressive conduct by people who may effectively consent to that conduct, which does not implicate the purposes of the child pornography exception to free speech."2 Drawing a comparison to the sexual assault statute, Penal Code section 22.011, appellant bases his overbreadth argument on the premise that "sexual conduct involving seventeen-year-olds is not a crime" in Texas. According to appellant, the State lacks a "compelling interest" in forbidding speech which induces sexual conduct by seventeen-year-olds because the "production of performances of seventeen-year-olds is not a valid crime," and "the prohibition of such performances deters no crime."
The Fifth Court of Appeals has rejected the same constitutional overbreadth challenge to the sexual-performance-of-a-child statute as appellant raises here. See Ex parte Fujisaka , 472 S.W.3d 792, 800-02 (Tex. App.—Dallas 2015, pet. ref'd). In explaining the compelling interest the State has in protecting children from sexual exploitation, the court observed:
Although there is some overlap between the offenses set forth in Title Five of...
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