Ex parte Fusselman

• Decision Date: 30 March 2021
• Docket Number: NO. 14-20-00550-CR,NO. 14-20-00549-CR, NO. 14-20-00551-CR,14-20-00549-CR
• Parties: EX PARTE Leonard Walton FUSSELMAN
• Court: Texas Court of Appeals

621 S.W.3d 112

EX PARTE Leonard Walton FUSSELMAN

NO. 14-20-00549-CR

NO. 14-20-00550-CR

NO. 14-20-00551-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 30, 2021

Discretionary Review Refused June 23, 2021

Mark W. Bennett, Houston, for Appellant.

Jason Travis Bennyhoff, Richmond, for State of Texas.

Panel consists of Justices Wise, Zimmerer, and Poissant.

Jerry Zimmerer, Justice

Appellant Leonard Walton Fusselman appeals from the orders denying him the relief he requested in his pretrial applications for writ of habeas corpus. In five issues appellant contends that the Penal Code statute prohibiting the possession of child pornography is facially overbroad and violates the Free Speech Clause of the United States and Texas Constitutions. See Tex. Penal Code § 43.26 ; U.S. Const. amend. I ; Tex. Const. art. I, § 8. We affirm.

BACKGROUND

Appellant was indicted for three counts of possession of child pornography in violation of section 43.26 of the Texas Penal Code. In each case appellant filed a Second Amended Application for Writ of Habeas Corpus¹ in which he asserted that section 43.26 was unconstitutional. The trial court held a hearing at which no evidence was taken. Following the hearing the trial court denied appellant's requested relief of dismissal of the indictments.

In appellant's applications for writ of habeas corpus he asserted section 43.26 was unconstitutionally broad in three respects:

• The statute forbids possession of images of people engaged in sexual conduct who are not children for purposes of engaging in sexual conduct;

• The statute's inclusion of "lewd exhibition of ... the anus, or any portion of the female breast below the top of the areola" unconstitutionally expands the definition of forbidden content; and

• the statute punishes simulated sexual conduct as child pornography.

In appellant's first four issues on appeal he challenges the trial court's rulings on his applications for writ of habeas corpus asserting the statute is facially unconstitutional (1) under the United States Constitution because it forbids as child pornography images of people who are not children for purposes of engaging in sexual conduct; (2) under the Texas Constitution because it forbids as child pornography images of people who are not children in Texas for purposes of engaging in sexual conduct; (3) under the United States Constitution because it punishes as child pornography images of body parts that the Supreme Court has not categorized as child pornography; and (4) under the First Amendment to the United States Constitution because it punishes as child pornography images of simulated sexual conduct. In appellant's fifth issue he asserts that if any one of the above-referenced "forms of overbreadth" did not individually render the statute unconstitutionally overbroad, "some combination of them would."

ANALYSIS

I. Standard of review and applicable law

In general, we 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. Phuong Anh Thi Le v. State , 300 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Pretrial habeas corpus proceedings are separate criminal actions, and the applicant has the right to an immediate appeal before trial begins. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist. , 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005). A defendant may only seek pretrial habeas relief in limited circumstances. Ex parte Smith , 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). Those limited circumstances are (1) to challenge the State's power to restrain the defendant; (2) to challenge the manner of pretrial restraint, i.e., the denial of bail or conditions of bail; and (3) to raise certain issues that would bar prosecution or conviction. Id.

In most cases, a facial challenge to the constitutionality of a statute can succeed only when the statute is shown to be unconstitutional in all of its applications. See State v. Rosseau , 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013). Under the First Amendment's overbreadth doctrine, a statute may be declared unconstitutional on its face, even if the statute has a legitimate application, and even if the defendant was not engaged in activity protected by the First Amendment. State v. Johnson , 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015).

In the case of statutes that encroach upon activity protected by the First Amendment, the challenger may bring a "substantial overbreadth" challenge. Under such a facial 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." United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; see also Ashcroft v. Free Speech Coal. , 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding overbreadth doctrine prohibits government from banning unprotected speech if substantial amount of protected speech prohibited or chilled in process). This type of facial challenge may be made when a statute restricts or punishes speech based upon its content. See Ex parte Lo , 424 S.W.3d 10, 15 (Tex. Crim. App. 2014).

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 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 the presumption. Lo , 424 S.W.3d at 15. We apply the "most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Id. (quoting Turner Broadcasting Sys., Inc. v. FCC , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497, (1994) ). To satisfy 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 there must be a close nexus between the state's compelling interest and the restriction. Id. 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).

II. The challenged statute

As noted by our sister court, the first step in considering an overbreadth challenge "is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Ex parte Dehnert , 605 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (holding section 43.26(a) constitutional under identical challenges to those asserted by appellant).

Section 43.26(a) of the Texas Penal Code provides that a person commits an offense if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8) and

(2) the person knows that the material depicts the child as described by Subdivision (1).

Tex. Penal Code § 43.26(a).

"Sexual conduct" is defined as:

[S]exual 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.

Tex. Penal Code §§ 43.26(b)(2), 43.25(a)(2).

"Simulated" is defined as:

[T]he 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.

Tex. Penal Code § 43.25(a)(6).

III. Punishing the possession of child pornography involving 17-year-old minors is not unconstitutional under the United States Constitution.

In appellant's first issue he contends that section 43.26 is unconstitutional under the First Amendment to the United States Constitution because it forbids as "child pornography" images of people who are not children for purposes of engaging in sexual conduct. Specifically, appellant asserts that because a seventeen-year-old can effectively consent to sex, Texas cannot invoke as its compelling interest for forbidding pornography of 17-year-olds protecting children under 18 from sexual seduction or exploitation.

Appellant's issue raises the question of the purpose of child pornography laws vis-à-vis the First Amendment. Child pornography is not protected speech under the First Amendment. Osborne v. Ohio , 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) ; New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In 1977, Congress passed the first federal law aimed at child pornography. See Protection of Children Against Child Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978). New York enacted one of the early child pornography laws, the subject of which was addressed by the Supreme Court in Ferber . 458 U.S. at 750, 102 S.Ct. 3348. The Court rejected a First Amendment defense to New York's law giving five reasons why "the States are entitled to greater leeway in the regulation of pornographic depictions of children." Id. at 756, 102 S.Ct. 3348. First, the government has a compelling interest in "safeguarding the physical and psychological well-being of a minor." Id. at 756–57, ...