Ex parte Lowry
| Citation | 639 S.W.3d 151 |
| Decision Date | 26 October 2021 |
| Docket Number | NO. 01-20-00859-CR,NO. 01-20-00858-CR,01-20-00858-CR |
| Parties | EX PARTE Michael LOWRY, Appellant |
| Court | Court of Appeals of Texas |
Kim K. Ogg, Daniel C. McCrory, Houston, Patricia McLean, Jessica A. Caird, for State of Texas.
Jonathan Landers, for Appellant.
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
Appellant, Michael Lowry, challenges the trial court's order denying his pretrial writ of habeas corpus application.1 In two issues on appeal, appellant argues that section 43.262 of the Texas Penal Code is facially unconstitutional, overbroad, and void for vagueness.
We reverse and remand.
Based on investigations by the Montgomery County District Attorney's Internet Crimes against Children Task Force, the Department of Homeland Security, and the Texas Department of Public Safety, law enforcement discovered child pornography and child erotica on appellant's phone.2 On March 1, 2019, the State charged appellant with possession of child pornography.3 Later, on July 11, 2019, the State charged appellant in trial court cause number 1623191 with possession of lewd visual material of a child.4
Appellant noted that section 43.262 would "punish, as a state jail felony" numerous Instagram "social influencers" and that that he could not visit the listed Instagram accounts for fear of "possibly committing a felony." Appellant broadly stated that "[t]he law potentially ... outlaws ... almost every teenage Instagram user in the United States in spite of the fact that the children ... are in no way being harmed by posting their pictures on Instagram."
Appellant asserted that section 43.262 ’s regulation of "visual material" is a content-based regulation. Although appellant acknowledged that obscenity is unprotected by the First Amendment, he asserted that the "obscenity carve out should not apply to ... § 43.262 because it outlaws non-pornographic images." Appellant maintained that the "Texas legislature included the first and third limitations in § 43.262(b)(2)-(3), but completely omitted the second limitation that ‘the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.’ " Appellant noted that the statute's omission conflicts with the supreme court's requirement that prohibited obscene speech be patently offensive. Appellant continued, "By omitting the ‘patently offensive’ requirement from [section] 43.262, the statute specifically permits prosecution for materials which certainly cannot be considered ‘hard core sexual conduct.’ "
To bolster his argument that the statute cannot be upheld, appellant asserted that the statute does not include a scienter requirement and that the State could not show that the law employed the least restrictive means to achieve its goals. Finally, appellant argued that section 43.262 is void for vagueness "because a person of ordinary intelligence is not on notice of what, exactly, subjects them to punishment."
On November 10, 2020, appellant filed a "Notice of Additional Evidence" to support his pretrial habeas application. Appellant asked the trial court to take judicial notice of a pending suit in Tyler County, Texas, in which a grand jury indicted Netflix for the promotion of lewd visual material depicting children6 and that the prosecution of Netflix showed that section 43.262 is overbroad and unconstitutionally vague because "it overly chills protected speech and does not provide ordinary citizens fair notice of what the statute proscribes."
The State responded to appellant's application for writ of habeas corpus,7 arguing that " Section 43.26 satisfies the State's compelling interest in protecting all children from sexual exploitation and the long-lasting harm that results from their depiction in child pornography."
During a Zoom hearing on the writ, appellant argued that section 43.262 regulates protected speech, it did not regulate obscenity because it lacked the patently offensive prong, and the section did not apply to regulate child pornography. Appellant contended that because the statute regulates protected speech and is a content-based restriction, strict scrutiny would apply. Appellant argued that the State had the burden to meet strict scrutiny and that it had failed to show that the statute was the least restrictive means to regulate speech. In arguing that the statute was not narrowly tailored, appellant pointed out that the introductory version of the statute applied to obscenity and contained a scienter requirement, but that upon the law's enactment, the obscenity and scienter requirements were removed. As an example of the overbroad reach of the statute, appellant informed the trial court of the prosecution of Netflix for showing a film "designed to actually protect children and to protest the oversexualization of children in our society." Appellant also argued that the statute was void for vagueness and that the statute overly chilled speech and "leaves too many people open to prosecution." By way of example, appellant argued that "anybody in Texas who watched that Cuties movie, would be open to prosecution including the DA of the county who brought the charges who admits he's watched that movie."
The State responded that section 43.262 was an additional child pornography prohibition statute that "works to prevent the sexual abuse or exploitation of children, which is a compelling interest and permits the State to have more leeway in drafting child porn statutes in order to protect children." The State further argued that the "statute's scope is limited to the depictions involving child sexual exploitation and/or abuse and a legitimate application under the First Amendment." In responding to appellant's vagueness argument, the State explained that perfect clarity is not required and that the "statute language is clear enough and sufficient to put anyone on notice on what is prohibited." Finally, the State argued that the statute is not overbroad and "is not protected by the First Amendment because this is obscene material."
Appellant responded by agreeing that "there's a compelling interest in protecting children" but "the problem is that this law is not narrowly drawn" and "it's not the least restrictive way to protect children."8
The trial court found that section 43.262 was a content-based regulation of speech requiring strict scrutiny review. The trial court noted that the State has a compelling interest in the protection of minors from sexual exploitation and believed that, even though the statute did not specifically state that it applied to patently offensive conduct, the language used in the statute—imagery of the genitalia or pubic area, whether clothed, unclothed or partially clothed—lays out patently offensive conduct. The trial court also noted that the public debate seems to be on whether the imagery "lacks serious literary, artistic or scientific value." The court also found that, taking the statute as a whole, the statute had a scienter requirement in subsection B that applied to the rest of the statutory text under B. Because the trial court found that the statute was narrowly construed and necessary to serve a compelling interest, the trial court denied the requested habeas relief.9
Appellant appealed "from the order denying the pre-trial writ of habeas corpus in cause number 1685846 challenging the constitutionality of the charge pending in cause number 1623191."
"[P]retrial habeas, followed by an interlocutory appeal, is an ‘extraordinary remedy,’ and ‘appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’ " Ex parte Ellis , 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster , 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) ). "Pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense but may not be used to advance an ‘as applied’ challenge." Id.
"Whether a statute is facially constitutional is a question of law that we review de novo." Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Id. "Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the government bears the burden to rebut that presumption." Id. (ci...
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