Ex parte Thompson

• Decision Date: 27 November 2013
• Docket Number: No. 04–13–00127–CR.,04–13–00127–CR.
• Citation: 414 S.W.3d 872
• Parties: Ex parte Ronald THOMPSON.
• Court: Texas Court of Appeals

414 S.W.3d 872

Ex parte Ronald THOMPSON.

No. 04–13–00127–CR.

Court of Appeals of Texas,

San Antonio.

Aug. 30, 2013.

Discretionary Review Granted Nov. 27, 2013.

Held Unconstitutional

V.T.C.A., Penal Code § 21.15(b)(1)Donald H. Flanary, III, Goldstein, Goldstein and Hilley, San Antonio, TX, for Appellant.

S. Patrick Ballantyne, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, MARIALYN BARNARD, Justice, LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by: MARIALYN BARNARD, Justice.

Appellant Ronald Thompson was arrested and charged with twenty-six counts of improper photography or visual recording in violation of section 21.15(b)(1) of the Texas Penal Code, commonly known as the “improper photography” statute. This is an appeal from the trial court's denial of Thompson's pretrial application for writ of habeas corpus, which alleged section 21.15(b)(1) is unconstitutional on its face because it violates both the First Amendment to the U.S. Constitution and Article 1, Section 8 of the Texas Constitution. We reverse and remand.

Background

Because this appeal presents a facial challenge to a statute, a detailed rendition of the facts is unnecessary for its disposition. We therefore provide only a brief procedural history.

On July 16, 2011, Thompson was arrested and charged with improper photography. On January 22, 2013, Thompson filed a pre-trial “Application for Writ of Habeas Corpus Seeking Relief from Facially Unconstitutional Statute.”

On January 25, 2013, the trial court denied Thompson's application for writ of habeas corpus without a hearing. On March 7, 2013, the trial court issued an order clarifying that it considered and denied Thompson's application based on the merits. Thompson then perfected this appeal.

Analysis

Section 21.15(b)(1) of the Texas Penal Code provides as follows:

A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts,or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person's consent; and (B) with intent to arouse or gratify the sexual desire of any person.

Tex. Penal Code Ann. § 21.15(b)(1) (West 2011) (emphasis added). Thompson argues this section of the penal statute is facially unconstitutional because it: (1) impermissibly regulates the content of speech, and is both (2) overly broad and (3) vague. Therefore, Thompson contends the statute violates the First Amendment to the U.S. Constitution and Article 1, Section 8 of the Texas Constitution.¹

Standard of Review

A claim that a statute is unconstitutional on its face may be raised by a pretrial writ of habeas corpus. Ex Parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001). Habeas corpus preconviction 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, 650 (Tex.Crim.App.2005).

We review a trial court's decision to grant or deny an application for writ of habeas corpus under an abuse of discretion standard. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006); Ex parte Perusquia, 336 S.W.3d 270, 274 (Tex.App.-San Antonio 2010, pet. ref'd); Ex parte Nyabwa, 366 S.W.3d 719, 723 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd).^2,3 However, when the trial court's ruling and determination of the ultimate issue turns on the application of the law, such as the constitutionality of a statute, we review the trial court's ruling de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007); Ex parte Perusquia, 336 S.W.3d at 275;Nyabwa, 366 S.W.3d at 723 (citing Rivera v. State, 363 S.W.3d 660, 666 (Tex.App.-Houston [1st Dist.] 2011, no pet.)).

We review the constitutionality of a criminal statute de novo. Byrne v. State, 358 S.W.3d 745, 748 (Tex.App.-San Antonio 2011, no pet.). When a statute is attacked upon constitutional grounds, we ordinarily presume the statute is valid and that the legislature has not acted unreasonably or arbitrarily. State v. Rosseau, 396 S.W.3d 550, 557 (Tex.Crim.App.2013). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id.

However, when the government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded to legislative enactments is reversed. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Nyabwa, 366 S.W.3d at 724. Content-based regulations are presumptively invalid, and the government bears the burden to rebut that presumption. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004); Nyabwa, 366 S.W.3d at 724.

First Amendment Implications: Does the Statute Regulate Protected Speech?

The free speech protections of the First Amendment are implicated when the government seeks to regulate protected speech or expressive conduct. See Scott v. State, 322 S.W.3d 662, 668–69 (Tex.Crim.App.2010). It is the obligation of the person desiring to engage in allegedly expressive conduct to demonstrate the First Amendment applies. Clark v. Comty. For Creative Non–Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

Thompson contends the improper photography statute regulates protected speech by imposing limits on non-obscene photography of a sexual nature. The U.S. Supreme Court has held photography is a form of speech normally protected by the First Amendment. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435,passim (2010); Regan v. Time, Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 82 L.Ed.2d 487,passim (1984). Furthermore, sexual expression that is indecent but not obscene is also protected by the First Amendment. See Sable Commc'ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989).

The court in Nyabwa held section 21.15(b)(1) of the Texas Penal Code was “not a regulation of speech or expression, but rather of the intent of the photographer.” ⁴ In reaching its holding, the court discussed Scott v. State, 322 S.W.3d 662 (Tex.Crim.App.2010), where the court of criminal appeals concluded a telephone harassment statute did not implicate the free speech guarantee, even though the conduct included spoken words, where the statute focused on the actor's intent to inflict emotional distress and not to legitimately communicate ideas, opinions, or information. See Nyabwa, 366 S.W.3d at 725–26. The court held that in the same way, the improper photography statute regulates a person's intent in creating a visual record and not the contents of the record itself. See id. at 726. We respectfully disagree.

First, we hold the statute addressed in Scott is distinguishable from the improper photography statute. In Scott, the court held the telephone statute did not implicate the free speech guarantee of the First Amendment because it was directed only at persons with the “specific intent to inflict emotional distress, repeatedly use the telephone to invade another person's personal privacy and do so in a manner reasonably likely to inflict emotional distress.” 322 S.W.3d at 670. The court held the statute regulated “noncommunicative” conduct because it did not include “an intent to engage in the legitimate communication of ideas, opinions, or information; [it] will have only the intent to inflict emotional distress for its own sake.” Id. In other words, it was the lack of a legitimate intent to communicate which made the conduct regulated “noncommunicative.” See id.

In contrast, we hold the statutory subsection challenged by Thompson, section 21.15(b)(1) of the Texas Penal Code, regulates protected speech as opposed to “noncommunicative” conduct. The statute specifically restricts an individual from taking, recording, broadcasting, or transmitting photographs of others in public places—places other than a bathroom or private dressing room—when the individual has the intent to “arouse” or “gratify” someone's sexual desires. SeeTex. Penal Code Ann. § 21.15(b)(1). Therefore, the statute not only restricts an individual's right to photograph, a form of speech protected by the First Amendment, see Stevens, 130 S.Ct. at 1584, but the statute also restricts a person's thoughts, which the U.S. Supreme Court has held is “wholly inconsistent with the philosophy of the First Amendment.” See Stanley v. Georgia, 394 U.S. 557, 565–66, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (holding government does not have right to control moral content of person's thoughts).

Furthermore, unlike the statute in Scott, subsection 21.15(b)(1) does not require an “intent” to “invade another person's personal privacy.” See Scott, 322 S.W.3d at 669. In fact, that requirement is found in subsection 21.15(b)(2)—which penalizes an individual taking photographs with the intent to “invade the privacy of the other person”—but is not found in subsection 21.15(b)(1). CompareTex. Penal Code Ann. § 21.15(b)(1) (requiring individual have intent to arouse or gratify sexual desire of any person) withTex. Penal Code Ann. § 21.15(b)(2) (requiring individual have intent to invade privacy of another person or arouse or gratify sexual desire of any person) (emphasis added). Subsection 21.15(b)(1) does not require the person being photographed even be aware of it. Therefore, unlike the statute in Scott, which regulated “noncommunicative” conduct (without the legitimate intent to communicate but rather to “inflict emotional distress”), we hold subsection 21.15(b)(1) restricts protected speech by regulating an individual's right to photograph and to have certain thoughts. We also hold the intent requirement, i.e., to have the “intent to arouse or gratify the sexual desire of any person,” does not render the speech or conduct...