Huddleston, Ex Parte Curtis Wayne ( 2015 )

PD-1637-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/8/2015 6:55:46 PM
Accepted 1/16/2015 12:04:22 PM
JANUARY 16, 2015 PD-1637-14 ABEL ACOSTA
NO. ____________ CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
EX PARTE
CURTIS WAYNE HUDDLESTON
APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW
Appeal from the 21st/335th Judicial District Court, Burleson and
Washington Counties of Texas
Trial Court Cause No. CR14,220 and
Cause Number 10-14-00073-CR in the Tenth Court of Appeals of Texas
LAW OFFICE OF BENTON ROSS WATSON
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
(254) 307-8181
(254) 231-0212—Facsimile
ross@texastopdefense.com
State Bar No. 24077591
ORAL ARGUMENT REQUESTED
NAMES OF THE PARTIES TO THE FINAL JUDGMENT
STATE OF TEXAS
Ms. Lauren Haevischer
Assistant Burleson County District Attorneys
Burleson County District Attorney’s Office
100 West Buck, Suite 407
Caldwell, Texas 77836
PETITIONER’S TRIAL COUNSEL
Clyde W. Chandler
120 E. 1st Street
P.O. Box 888
Cameron, Texas 76520
PETITIONER’S COUNSEL FOR
THE WRIT HEARING AND APPEAL
Benton Ross Watson
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
TRIAL COURT JUDGE
The Honorable Reva Towslee-Corbett
335th District Court Judge
100 W. Buck Street, Ste. 411
Caldwell, Texas 77836
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TABLE OF CONTENTS
NAMES OF PARTIES TO THE FINAL JUDGMENT ........................... I
INDEX OF AUTHORITIES .................................................................. IV
STATEMENT REGARDING ORAL ARGUMENT ........................... VII
STATEMENT OF THE CASE ............................................................. VII
STATEMENT OF PROCEDURAL HISTORY ................................. VIII
QUESTIONS PRESENTED FOR REVIEW.......................................... X
I. Whether the Waco Court of Appeals may deny standing under
the First Amendment, and Equal Protection Clause when it does
not address standing under First Amendment law, and does not
mention equal protection.
II. Whether the Waco Court of Appeals may find pretrial habeas
constitutional challenges noncognizable when that finding
violates well-established precedent of Texas and the United
States Supreme Court.
STATEMENT OF THE FACTS .............................................................. 1
I. QUESTION ONE RESTATED: ........................................................... 2
The Waco Court failed to address all issues, applied incorrect
legal standards, and ignored well-established law. ............................. 2
A. Reasons for Granting Review: ............................................................ 2
B. Summary of Facts & Basis for Argument. .......................................... 3
C. Argument. ........................................................................................... 4
1. The Waco Court did not use First Amendment law to decide the
cognizability of First Amendment claims ........................................... 4
2. The Waco Court completely ignored Equal Protection claims. .......... 5
II. QUESTION TWO RESTATED: ........................................................ 7
The Waco Court of Appeals’ reasoning and conclusion are
contrary to established law. ................................................................. 7
A. Reasons for Granting Review: ............................................................ 7
B. Summary of Facts & Basis for Argument. .......................................... 8
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C. Argument. ......................................................................................... 10
1. Statutory applications, meanings, and justifications must be
addressed when First Amendment or other fundamental rights
are implicated. ................................................................................... 10
a. First Amendment attacks always analyze applications,
meanings, and justifications. ............................................................. 10
b. Claims based on fundamental rights and equal protection also
analyze applications, meanings, and justifications. .......................... 13
c. Mr. Huddleston’s challenges are cognizable. ................................... 14
1) Statutory Complaints .................................................................... 14
2) The underlying facts do not matter. .............................................. 18
2. The Waco Court of Appeals disposed of this case in a manner
that threatens the reliability of our justice system............................. 20
PRAYER ................................................................................................ 21
CERTIFICATE OF SERVICE .............................................................. 21
CERTIFICATE OF COMPLIANCE.......................................................23
APPENDICES........................................................................................ 24
Ex parte Huddleston,
No. 10-14-00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—
Waco [10th Dist.] Sept. 18, 2014) (mem. op., not designated for
publication) ............................................................................... A-1
Order Denying Rehearing ................................................................ A-2
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INDEX OF AUTHORITIES
United States Supreme Court Cases
New York v. Ferber,
458 U.S. 747 (1982) ............................................................................ 12, 14
Osborne v. Ohio,
495 U.S. 103 (1990) ............................................................................ 12, 14
R.A.V. v. St. Paul,
505 U.S. 377 (1992) .................................................................................... 6
Sandstrom v. Montana,
442 U.S. 510 (1979). ................................................................................... 6
United States v. Williams,
553 U.S. 285 (2008). ............................................................................. 5, 13
Zablocki v. Redhail,
434 U.S. 374 (1978) .................................................................................... 6
Texas Court of Criminal Appeals Cases
Casarez v. State,
913 S.W.2d 468 (Tex. Crim. App. 1994).................................................... 6
Coronado v. State,
351 S.W.3d 315 (Tex. Crim. App. 2011)................................................ 3, 6
Ex parte Ellis,
309 S.W.3d 71 (Tex. Crim. App. 2010).......................... 3, 4, 10, 11, 12, 17
Ex parte George,
152 Tex. Crim. 465, 215 S.W.2d 170 (1948) ....................................... 5, 13
Ex parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013)...................................... 4, 5, 10, 11
Ex parte McIver,
586 S.W.2d 851 (Tex. Crim. App. 1979).................................................. 15
Ex parte Thompson,
442 S.W.3d 325 (Tex. Crim. App. 2014).................................. 4, 11, 12, 14
Ex parte Smith,
185 S.W.3d 887 (Tex. Crim. App. 2006).................................................... 3
Ex parte Tigner,
139 Tex. Crim. 452, 132 S.W.2d 885 (1939) ....................................... 5, 13
Ex parte Wiese,
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55 S.W.3d 617 (Tex. Crim. App. 2001) ..................................................... 3
Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1996),............................................. 5, 16
Wise v. State,
364 S.W.3d 900 (Tex. Crim. App. 2012).................................................. 16
Texas Appellate Court Cases
Ex parte Barnett,
424 S.W.3d 809 (Tex. App.—Waco [10th Dist.] 2014, no pet.) ........... 6, 13
Ex parte Huddleston,
No. 10-14-00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—Waco [10th
Dist.] Sept. 18, 2014) (mem. op., not designated for publication)..... passim
Ex parte Morales,
212 S.W.3d 483 (Tex. App.—Austin 2006, pet. ref’d) ........................ 6, 13
Ex parte Zavala,
421 S.W.3d 227 (Tex. App.—San Antonio 2013, pet. ref’d) ................... 17
Goyzueta v. State,
266 S.W.3d 126 (Tex. App.—Fort Worth 2008, no pet.) .......................... 5
In re Shaw,
204 S.W.3d 9 (Tex. App.—Texarkana 2006, pet. ref’d) ............................ 6
Watson v. State,
No. 10-02-163-CR, 2003 Tex. App. LEXIS 6711
(Tex. App.—Waco [10th Dist.] July 30, 2003) (mem. op., not designated
for publication).......................................................................................... 14
White v. State,
50 S.W.3d 31 (Tex. App.—Waco [10th Dist.] 2001, pet. ref’d) .......... 5, 12
Texas Constitution
Tex. Const. art. I, §§ 3,8, 9, 10, 13, 15, 18, 19 & 27. .................................. VII
United States Constitution
U.S. Const. amend. I .............................................................................. passim
U.S. Const. amend. XIV .......................................................................... VII, 1
U.S. Const. amend. I, IV, V, VIII, & XIV .................................................. VII
Texas Statutes
Tex. Penal Code § 1.07(a)(39) ..................................................................... 16
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Tex. Penal Code § 6.01(b) ............................................................................ 16
Tex. Penal Code § 6.03(b) ............................................................................ 15
Tex. Penal Code § 37.09 .................................................................. 12, 17, 20
Tex. Penal Code § 43.26 (2011) ............................................................ passim
Tex. Penal Code § 43.26 (a)(1)(2013) ......................................... VII, 1, 17, 20
Tex. Penal Code § 43.261 ...................................................... 8, 15, 17, 18, 20
Tex. Code Crim. Proc. Ann. art. 1.04. ......................................................... VII
Tex. Code Crim. Proc. Ann. art. 45.0216(b)(2) ........................................... 13
Tex. Code Crim. Proc. Ann. arts. 62.001(5)(B) ........................................... 13
Texas Rules of Appellate Procedure
TEX. R. APP. P. 47.1. ....................................................................................... 2
TEX. R. APP. P. 66.3 (a) .............................................................................. 2, 6
TEX. R. APP. P. 66.3 (c). ............................................................................. 2, 6
TEX. R. APP. P. 66.3 (e) .................................................................................. 6
TEX. R. APP. P. 66.3 (f) ............................................................................... 2, 6
Texas Legislative History
House Res. Org., Bill Analysis, S.B. 407, 82nd Leg., R.S. 4, ¶ 6 (2011) ..... 14
Miscellaneous
George Orwell, 1984 bk. 1, ch. 8 ................................................................. 14
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STATEMENT REGARDING ORAL ARGUMENT
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
Petitioner requests that oral arguments be granted. Arguments would
benefit the Court because a statute was challenged using several points of
law that are issues of first impression, and the question is whether the points
raise facial or as-applied challenges.
STATEMENT OF THE CASE
This case primarily involves the issue of whether challenges to the
constitutionality of a statute are cognizable on pretrial writ of habeas corpus.
The writ challenges the constitutionality of the child pornography statute.
TEX. PENAL CODE § 43.26 (2011), amended by TEX. PENAL CODE § 43.26
(2013) (hereafter “43.26”).
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STATEMENT OF PROCEDURAL HISTORY
Mr. Huddleston was arrested and jailed on allegations of online
solicitation of a minor.1 On August 14, 2012, Mr. Huddleston was indicted
in cause number CR 14,220 for possession of child pornography.2
Mr. Huddleston filed an Application for Writ of Habeas Corpus on
February 18, 2014, 3 and a supplement to the application on March 3, 2014.4
Mr. Huddleston’s application urged the trial court to declare the child
pornography statute, Texas Penal Code § 43.26 (hereafter “43.26”),
unconstitutional under vagueness, overbreadth, and equal protection, as
encompassed within the Texas Constitution, 5 similar portions of the United
States Constitution, 6 and Texas Code of Criminal Procedure.7
Judge Reva Towslee-Corbett of the 335th Judicial District Court
issued the writ. At the writ hearing on March 3, 2014, the requested relief
1
(I C.R. p. 8)
2
(I. C.R. p. 6)
3
(I C.R. 35-87)
4
(I C.R. 90-105)
5
Tex. Const. art. I, §§ 3,8, 9, 10, 13, 15, 18, 19 & 27.
6
U.S. Const. amend. I, IV, V, VIII, & XIV.
7
Tex. Code Crim. Proc. Ann. art. 1.04.
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was “denied in its entirety.” 8
On March 3, 2014, Mr. Huddleston filed Notice of Appeal, 9 and
appeal was taken to the 10th District Court of Appeals.
On September 18, 2014, Justice Scoggins authored a memorandum
opinion affirming the trial court’s decision. Ex parte Huddleston, No. 10-14-
00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—Waco [10th Dist.] Sept.
18, 2014) (mem. op., not designated for publication). (Appendix A-1)
Petitioner filed a Motion for Rehearing on September 29, 2014. On
November 12, 2014, the Waco Court of Appeals denied Petitioner’s
Motion for Rehearing. See Order Denying Rehearing. (App. A-2.)
Chief Justice Gray dissented from the majority’s denial of
rehearing. Id.
Appellant a filed Motion to Extend Time for Filing Petition for
Discretionary Review on December 15, 2014. Appellant now files Petition
for Discretionary Review asking this Court to remand.
8
(II R.R. 19, ll. 15, 21). See also (I C.R. 106)
9
(I C.R. 108, 109, and 112)
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QUESTIONS PRESENTED FOR REVIEW
I. Whether the Waco Court of Appeals may deny standing under the
First Amendment, and Equal Protection Clause when it does not
address standing under First Amendment law, and does not
mention equal protection.
II. Whether the Waco Court of Appeals may find pretrial habeas
constitutional challenges noncognizable when that finding violates
well-established precedent of Texas and the United States Supreme
Court.
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STATEMENT OF THE FACTS
By pretrial writ of habeas corpus, Mr. Huddleston attacked the
constitutionality of the child pornography statute (hereafter “43.26”)10 under
the First Amendment, and Due Process and Equal Protection Clauses of the
Fourteenth Amendment.
The Waco Court of Appeals said Mr. Huddleston did not have
standing because his claims were noncognizable on pretrial habeas review.
Ex parte Huddleston, 2014 Tex. App. LEXIS 10396 at *3-4. (App. A-1)
Rehearing was summarily denied. Order Denying Rehearing. (App.
A-2) Chief Justice Gray dissented because he was inclined to rehear the case
on the merits. Id.
10
TEX. PENAL CODE § 43.26 (2011), amended by TEX. PENAL CODE § 43.26(a)(1) (2013).
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I. QUESTION ONE RESTATED:
The Waco Court of Appeals did not address all issues, applied incorrect
legal standards, and ignored well-established law.
A. REASONS FOR GRANTING REVIEW:
The Waco Court of Appeals failed to address “every issue raised and
necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1.
The Waco Court’s holding conflicts with important decisions of the
United States Supreme Court, this Court, and other Texas appellate courts.
TEX. R. APP. P. 66.3 (a), (c).
The Waco Court has so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise of this Court’s power
of supervision. TEX. R. APP. P. 66.3 (f).
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B. SUMMARY OF FACTS & BASIS FOR ARGUMENT.
Mr. Huddleston attacked 43.26 based on the First Amendment and
equal protection. He alleged strict scrutiny, vagueness, overbreadth, and
claims of infringement, discrimination, and disparate treatment of
fundamental rights. (For Appellant’s claims, see, infra, at 14-19.)
The Waco Court used four opinions11 to support its decision to deny
Mr. Huddleston standing.12 Only half of one opinion involves the First
Amendment, but that half was not used, nor was it cited.13 Equal protection
was not mentioned.
Because the cognizability issue requires a different analysis when the
First Amendment is involved, that issue could not have been decided based
on non-First Amendment law. Because equal protection was not mentioned,
there could not have been a final disposition.
Because all of these challenges arise out of important constitutional
doctrines defined by higher courts, the Waco Court “[did] not have the
luxury or the liberty to ignore binding precedent.” Coronado v. State, 351
S.W.3d 315, 317 n.5 (Tex. Crim. App. 2011).
11
Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010); Ex parte Smith, 185 S.W.3d
887 (Tex. Crim. App. 2006); Ex parte Wiese, 55 S.W.3d 617 (Tex. Crim. App. 2001); Ex
parte Barnett, 424 S.W.3d 809 (Tex. App.—Waco [10th Dist.] 2014, no pet.).
12
Huddleston, 2014 Tex. App. LEXIS 10396 at *2-4.
13
Id. at *1-3 (citing Ex parte Ellis, 309 S.W.3d at 79, 80).
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C. ARGUMENT.
1. The Waco Court did not use First Amendment law to decide the
cognizability of First Amendment claims.
The First Amendment often demands courts apply the “most exacting
scrutiny…” Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2013). There
is no way the Waco Court honestly judged—much less strictly scrutinized—
this case when it failed to even start off with the correct rule of law.
The only opinion referenced by the Waco Court that involves the First
Amendment is Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010). Ellis
first deals with money laundering, which has nothing to do with the First
Amendment. 309 S.W.3d at 79-82. Ellis then discusses campaign
contributions, which do implicate the First Amendment. Id. at 82-92.
The Waco Court based its decision only on the money-laundering
portion; thus, the legal standards supporting its decision are only based on
non-First Amendment law. Huddleston, 2014 Tex. App. LEXIS 10396 at *1-
3 (citing Ellis, 309 S.W.3d at 79-80).
First Amendment vagueness and overbreadth claims are analyzed
differently than non-First Amendment attacks, and are unquestionably
cognizable on pretrial habeas. Id. at 80, 82-92. See Ex parte Thompson, 442
S.W.3d 325, 333, 349-351 (Tex. Crim. App. 2014) (finding improper
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photography statute overbroad on pretrial habeas); Ex parte Lo, 424 S.W.3d
at 14 (finding online solicitation of minor law overbroad on pretrial habeas).
Further, overbreadth is generally recognized only in the First
Amendment context. Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—
Fort Worth 2008, no pet.). Thus, overbreadth claims cannot be finally
disposed of by ignoring First Amendment law.
Moreover, the First Amendment vagueness doctrine “demands
a greater degree of specificity than in other contexts,” Long v. State,
931 S.W.2d 285, 287 (Tex. Crim. App. 1996), utilizes the same
overbreadth standard, White v. State, 50 S.W.3d 31, 44 & n.13 (Tex.
App.—Waco [10th Dist.] 2001, pet. ref’d), and is often entwined with
overbreadth. United States v. Williams, 553 U.S. 285, 304 (2008).
Therefore, the vagueness issue also could not have been properly
disposed of by ignoring First Amendment law.
2. The Waco Court completely ignored claims based on equal
protection and fundamental rights.
Equal protection challenges are reviewable by pretrial writ of habeas
corpus. See Ex parte George, 152 Tex. Crim. 465, 215 S.W.2d 170 (1948)
(criminal licensing law); Ex parte Tigner, 139 Tex. Crim. 452, 132 S.W.2d
885 (1939) (criminal anti-trust law).
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Pretrial habeas equal protection claims fall under strict scrutiny when
they implicate fundamental rights. Ex parte Morales, 212 S.W.3d 483, 500
(Tex. App.—Austin 2006, pet. ref’d).14 But see In re Shaw, 204 S.W.3d 9,
17 (Tex. App.—Texarkana 2006, pet. ref’d) (questioning cognizability, yet,
deciding anyway).
None of these claims were mentioned. If the 10th Court thought none
were cognizable, it at least had to say that (and explain why) because that
was necessary to dispose of the claims, and it “[did] not have the luxury or
the liberty to ignore binding precedent.” Coronado, 351 S.W.3d at 317 n.5.
14
See Casarez v. State, 913 S.W.2d 468, 473, 477 n.13 (Tex. Crim. App. 1994)
(discussing strict scrutiny in fundamental right context of equal protection); R.A.V. v. St.
Paul, 505 U.S. 377, 384 n.4 (1992) (in relation to First Amendment); Zablocki v. Redhail
434 U.S. 374 (1978) (right to marry); Sandstrom v. Montana, 442 U.S. 510, 512 (1979)
(burden of proof).
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II. QUESTION TWO RESTATED:
The Waco Court of Appeals’ reasoning and conclusion are contrary to
established law.
A. REASONS FOR GRANTING REVIEW:
The Waco Court’s reason for finding important constitutional claims
noncognizable completely contravenes well-established law pronounced by
the United States Supreme Court, this Court, and other Texas appellate
courts. TEX. R. APP. P. 66.3 (a), (c).
The Waco Court’s ill-formulated reasoning, contradictory
conclusions, stubborn indifference, and hastily presumptive denial of
rehearing all scream out for this Court to exercise its full powers of
supervision. TEX. R. APP. P. 66.3 (f).
The justices also disagree on a material point necessary to the court’s
decision. TEX. R. APP. P. 66.3 (e).
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B. SUMMARY OF FACTS & BASIS FOR ARGUMENT.
Mr. Huddleston attacked intent and conduct features of 43.26(a)(1)-
(2), and their intensification due to §§ 37.09(c-1) (tampering with evidence
defense for minors), 43.26(h) (law enforcement defense), and 43.261(f)
(minor deletion defense). He attacked age definitions in 43.26(a)(1) and (c).
He discussed legislative intent and history for 43.26 and 43.261;
confronted the lack of necessary protections in 43.26 provided for in other
laws; and considered 43.26’s lack of underlying justifications.
The State argued that the attacks do not apply to the facts of this case.
(See, infra, at 18.)
Yet, the 10th Court found the attacks to be noncognizable, as-applied
challenges. Huddleston, 2014 Tex. App. LEXIS 10396 at *4. It also refused
to address legislative history, definitional inconsistency, and underlying
justifications because it felt “[p]retrial habeas is not available to test the
sufficiency of the charging instrument or to construe the meaning and
application of the statute defining the offense charged.” Id. at 2.
After receiving notice that incorrect legal standards were employed to
reach an incorrect conclusion, the 10th Court claimed (in one sentence) that
it does not matter since similar statutes were found facially constitutional in
other cases. See Order Denying Rehearing. (App. A-2).
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Chief Justice Gray dissented, however, and was inclined to rehear the
case on the merits as a facial challenge to the statute’s constitutionality. Id.
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C. ARGUMENT.
1. The Waco Court wrongly determined that statutory applications,
meanings, and justifications could not be considered when First
Amendment or other fundamental rights are implicated.
The Waco Court clearly erred by deciding that Mr. Huddleston did not
have the right to challenge applications, meanings, or underlying
justifications of a statute on pretrial habeas review. One, First Amendment
attacks under strict scrutiny, overbreadth, and vagueness always assess
statutory meanings, justifications, and applications. Two, strict scrutiny
requires the same analysis when fundamental rights are implicated, and
equal protection necessarily requires assessment of treatment toward other
classes and the justification(s) for such treatment.
a. First Amendment attacks must address applications, meanings, and
justifications.
Both Ex parte Lo15 and the second half of Ex parte Ellis16determine
First Amendment overbreadth and vagueness challenges on pretrial habeas.
Both consider intent and scienter elements.17 Both consider the bearing other
statutory provisions have on the provisions at issue.18 Neither considers First
Amendment vagueness or overbreadth in a vacuum.
15
424 S.W.3d at 14 (finding online solicitation of minor statute overbroad).
16
309 S.W.3d at 82-92 (deciding election code provisions not vague or overbroad).
17
Lo, 424 S.W.3d at 23; Ellis, 309 S.W.3d at 89-90.
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Ex parte Lo thoroughly discusses statutory justifications, objectives,
and applications based on strict scrutiny, confirming that speech laws “must
be (1) necessary to serve a (2) compelling state interest and (3) narrowly
drawn.” 424 S.W.3d at 15. It also defines the stringent demands of being
“narrowly drawn.” Id.
Ex Parte Thompson follows the same framework on a pretrial habeas
First Amendment challenge. 442 S.W.3d 325 (Tex. Crim. App. 2014). In
Thompson, this Court assesses the “meaning of consent in other contexts and
the wide applicability of the Penal Code definition of ‘consent’ to statutes in
the Code and to statutes outside the Code”19; analyzes how any “narrowing
construction” might be applied; 20 considers quantity of expressive acts and
subsets of expression penalized; 21 looks at possible “secondary effects”
underlying the law; 22 and notes that the State’s meaning “could have any
number of unanticipated and unwelcome consequences when applied in
other contexts.” Id. at 341.
18
Lo, 424 S.W.3d at 14-18, 19-20 & nn.40-42, 23-24 (discussing numerous provisions);
Ellis, 309 S.W.3d at 86 (“several provisions of the Election Code.”).
19
442 S.W.3d at 342.
20
Id. at 339-342.
21
Id. at 347.
22
Id. at 345-346.
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Thompson also requires courts to consider whether a law “seeks to
restrict and punish speech based on its content…” Id. at 15. Further,
Thompson teaches that the First Amendment protects visual images because
they are “inherently expressive,” and applies just the same to their
“purposeful creation…” Id. at 336-37. It even recognizes the need for
scrutinizing child pornography laws. Id. at 335 (quoting New York v. Ferber,
458 U.S. 747, 756 (1982)).
In fact, all First Amendment overbreadth challenges look at how
statutory language is applied—even to unknown third parties. Ex parte Ellis,
309 S.W.3d at 91. Because overbreadth requires courts to analyze how
statutory language is applied, one commentator declares, “There is no such
thing as an as-applied overbreadth challenge…” 23 “[A]n overbreadth facial
challenge peers beyond the four corners of the statute’s face in order to
assess the validity of the applications authorized by the statutory terms.” 24
The same is true under First Amendment vagueness. Id. at 86. See
White, 50 S.W.3d at 44 & n.13 (describing same standard as overbreadth).
First Amendment vagueness also confers standing to argue “a statute is
23
Luke Meier, A Broad Attack on Overbreadth, 40 Val. U.L. Rev. 113, 129-130 (2005).
24
Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule
Requirement, 48 Am. U. L. Rev. 359, 365-66 (1998).
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overbroad because it is unclear whether it regulates a substantial amount of
protected speech.” Williams, 553 U.S. at 304.
b. Claims based on fundamental rights and equal protection must also
analyze applications, meanings, and justifications.
If fundamental rights are involved, strict scrutiny and principles of
equal protection require the same analysis used in First Amendment claims.
The Austin Court of Appeals stresses—on pretrial habeas—that an equal
protection claim, like due process and vagueness, falls “under strict scrutiny
if it implicates a fundamental right.” Ex parte Morales, 212 S.W.3d 483, 500
(Tex. App.—Austin 2006, pet. ref’d); see id. at 490-94, 498.
Some equal protection claims require a similar analysis regardless. In
Ex parte George, this Court—on pretrial habeas—gives in-depth discussion
of underlying justifications for a criminal law mandating licensing
requirements for plumbers. 152 Tex. Crim. 465, 215 S.W.2d 170 (1948). In
Ex part Tigner, this Court—on pretrial habeas—again provides in-depth
discussion of an entire criminal anti-trust regulation, and the economic
conditions justifying special agricultural exemptions. 139 Tex. Crim. 452,
454-55, 132 S.W.2d 885, 886 (1939).
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c. Mr. Huddleston’s challenges are cognizable.
In Watson v. State, the Waco Court finds First Amendment
vagueness, overbreadth, and free speech attacks against child
pornography laws to constitute “facial challenges.” 25 Why find them
non-facial in this case?
1) Statutory Complaints
The age requirement of 43.26(a)(1) outlaws expressive material
depicting persons 17 years of age; yet, sexual conduct is completely
legal at that age. TEX. PENAL CODE §§ 21.11(a), 22.011(c)(1).
The distance in age defense of 43.26(c) only protects
expression between those within 2 years of age; yet, sexual conduct is
permitted for those within 3 years. Id. §§ 21.11(b), 22.011(e).
Facially, subsections (a)(1) and (c) unconstitutionally prohibit
expressive components of legal conduct. Ex parte Thompson, 442
S.W.3d at 348 & n.135. There is also no underlying justification of
child abuse when the conduct is legal. Ferber, 458 U.S. at 759.
Furthermore, 43.26(h) provides a deletion defense to law
enforcement and school personnel who in good faith, pursuant to
25
No. 10-02-163-CR, 2003 Tex. App. LEXIS 6711, at *3-4 (Tex. App.—Waco [10th
Dist.] July 30, 2003) (mem. op., not designated for publication).
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lawful duties, possess child pornographic material under § 43.261.
Also, minors who receive the same material are specifically
granted a defense to prosecution under § 43.261(f) if they destroy.
And, minors who destroy under § 43.261(f) are specifically
exempted from prosecution for tampering with evidence by § 37.09(c-
1).
Resorting only to statutory language, the Legislature included
defenses for one class (e.g., minors), and excluded those defenses from
another class of adults. The State claims Petitioner is wrong, but cannot
explain why the Legislature even needed to express added defenses or
protections. The State forgets the “well-known rule of statutory construction
in this State and elsewhere that the express mention or enumeration of one
person, thing, consequence, or class is tantamount to an express exclusion of
all others.” 26
Further, by its language, 43.26(a) is met as soon as one opens a
magazine or multi-media message, and realizes it contains child
pornography, because the person is “aware . . . that the circumstances
exists,” 27 has “care, custody, control,” 28 and cannot terminate possession.29
26
Ex parte McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. 1979) (on State’s mot. reh’g).
27
TEX. PENAL CODE § 6.03(b).
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Any act of destruction to terminate one’s control will be proof of tampering
with evidence or consciousness of guilt,30 or will not be considered at all. 31
Whether intentionally sought out or accidentally received, it makes no
difference, First Amendment rights are still held “forever hostage” because
adults cannot get rid of the information. Long , 931 S.W.2d at 294.
The State claims one might still avoid prosecution by promptly
turning an item over to the authorities. State’s Br. at 17. Doubtful, since
authorities even need special protection under 43.26(h). Regardless, the
State’s reading holds citizens’ rights of privacy and expression for naught;
burdens citizens to provide adequate explanation; naively ignores
consequences of such an arrangement; and fails to reference the date Texas
became a kind of police state requiring citizens to promptly turn themselves
over to the patrols. 32
The recent amendment to 43.26(a)(1) (“knowingly or intentionally
possesses, or knowingly or intentionally accesses with intent to view, [child
pornography]”), further muddles meanings, as to both before and after the
28
Id. § 1.07(a)(39).
29
Id. § 6.01(b)(possession is voluntary by being aware of control for sufficient time to
permit termination of control, or by knowingly receiving the thing possessed).
30
See Appellant’s Reply Br. at 16 & n.62-63 (discussing cases).
31
Wise v. State, 364 S.W.3d 900, 905 (Tex. Crim. App. 2012) (stating deletion irrelevant
to “legal analysis of knowing possession.”).
32
GEORGE ORWELL, 1984 bk. 1, ch. 8.
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amendment. TEX. PENAL CODE § 43.26(a)(1) (2013). Although this point
cannot be fully developed due to word limits, it was urged that the specific
intent—with intent to view—should modify possesses the same as accesses.
Thus, if a challenge to “internal inconsistency within the statutory
language . . . is a facial challenge to the constitutionality of the statute rather
than an as-applied challenge...”33, why did the Waco Court find otherwise?
Adults face sex offender registration. 34 Minors face the equivalent of
an expugnable traffic ticket.35 Thus, why do adults receive significantly less
protection? This applies even to an 18 year old senior who receives an
unwanted, unsolicited sext-message from his 15 year old sophomore
girlfriend—who cannot be prosecuted because she has not “promote[d] to
another minor.” TEX. PENAL CODE § 43.261(b)(1).
The primary justification for outlawing private possession of child
pornography is to “encourage[] the possessors of these materials to destroy
them.” Osborne v. Ohio, 495 U.S. 103, 111 (1990) (emphasis added). But,
adults are penalized for destroying. And, some minors may continue
33
Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref’d)
(citing Ex parte Ellis, 309 S.W.3d at 79-80)).
34
TEX. CODE CRIM. Proc. ANN. art. 62.001(5)(B).
35
Id. art. 45.0216(b)(2).
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possession under § 43.261(e) (minors in dating relationship), even though
harm may increase by circulation 36 and bullying and harassment. 37
The Legislature also realized the harsh, “life-altering,” 38 “long-term
negative consequences” 39 inherent in 43.26. The Legislature’s discussion
surrounding 43.261’s creation also shows it recognized already occurring
instances of discrimination and “selective enforcement”; 40 provided a
deletion defense for minors as a necessity for alleviating fears about
innocent reception; 41 appreciated the “free speech” and fundamental rights
involved; 42 and understood people must “abandon their privacy rights and
share their phones just to prove their innocence.” 43
The Waco Court ignores all of this.
2) The underlying facts do not matter.
The challenges do not deal with underlying facts of this particular
case. Even the State contended that these claims are “ignoring the actual
facts of this case.” (R.R. at 14:14) It asserted, “[Mr. Huddleston] has not
36
Appellant’s Br. at 66-67 (discussing statistics).
37
House Res. Org., Bill Analysis, S.B. 407, 82nd Leg., R.S. 3, 6 (2011).
38
Id. 4, ¶ 6.
39
Id. 5, ¶ 3.
40
Id. 6, ¶ 1.
41
Id.
42
Id. 6, ¶ 2.
43
Id.
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shown . . . his age-based complaint even applies to this prosecution.” State’s
Br. at 22. It admitted this case does not involve an indictment for tampering
with evidence (R.R. at 15:18), and again urged that Mr. Huddleston’s
arguments about “this, that, and the other… just ignores the facts in this
particular case.” (R.R. at 14:6)
The Waco Court does not once state how Appellant’s challenges
center on particular facts of this case, but then finds they are as-applied.
The statutory language is as troublesome for members of this Court
and most other Texans as for Mr. Huddleston. Any illustration using Mr.
Huddleston merely emphasizes dangerous points where “application of the
statute is the same in every case.” Appellant’s Br. at 55.
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2. The Waco Court of Appeals disposed of this case in a manner that
threatens the reliability of our justice system.
After noting Chief Justice Gray’s dissent, the order denying
rehearing wrongly tried to justify the opinion “[on] the merits” when
it already denied standing to even consider the merits. Order Denying
Reh’g. This decision cannot be assumed proper merely because other
cases upheld “similar statutes.” Id. The complete failure to provide a
single ounce of First Amendment law leaves this Court no way to
review such a conclusory statement that other cases concerning
“similar statutes” make the decision(s) here appropriate.
Besides, many (if not all) claims are of first impression. For age
definitions, the State claims there is not “any reported Texas appellate
court decision.” State’s Reply Br. at 20. Similar past attacks are also
unlikely since statutes attacked here (like §§ 43.26(a)(1), (h), 43.261,
37.09(c-1)) were amended and or created in 2011 and 2013.
Having right to complain of government wrong is the
cornerstone of our justice system. Yet, the Waco Court very casually
eliminated an important vehicle for complaining of government
intrusion, and protesting unlawful restraint.
Allowing such an inaccurate and indifferent opinion to stand
gives a false impression about what the law is, fuels future arguments
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contrary to this Court’s authority, misleads people about remedies
available for harm to important rights, and undermines confidence in
the entire judicial department.
PRAYER
Mr. Huddleston prays this Honorable Court grant the petition, and
order briefing to further consider remanding to the Waco Court of Appeals.
Respectfully submitted
Benton Ross Watson
_________________________
Benton Ross Watson
120 E. 1st Street / Box 1000
Cameron, Texas 76520
Tel: 1 (254) 307-8181
Fax: 1 (254) 231-0212
ross@texastopdefense.com
State Bar No. 24077591
Attorney for Curtis Huddleston
CERTIFICATE OF SERVICE
This is to certify that on January 8, 2015, a true and correct copy of
the above and foregoing document was served on the District Attorney's
Office, Burleson County, Texas, by electronic transmission to
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jrenken@wacounty.com, and larry@brenhamlaw.com; and by certified
mail return receipt requested at 100 W. Buck, Ste. 407, Caldwell, Texas
77836.
Benton Ross Watson
_______________________
Benton Ross Watson
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CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i) because this brief contains 3,500 words, excluding the parts of
the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
produced on a computer in conventional typeface using Microsoft
Word in Times New Roman 14 point font in the body of the brief and
Times New Roman 12 point font in the footnotes.
3. The electronic file is virus and malware free.
Benton Ross Watson
____________________________________________
(Signature of filing party)
Benton Ross Watson
____________________________________________
(Printed name)
Sole Practitioner
____________________________________________
(Firm)
January 8, 2015
____________________________________________
(Date)
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APPENDICES
TABLE OF CONTENTS
I. Waco Court of Appeals
Memorandum Opinion
App. A-1.
Order Denying Rehearing
App. A-2.
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APPENDIX A-1
IN THE
TENTH COURT OF APPEALS
No. 10-14-00073-CR
EX PARTE CURTIS WAYNE HUDDLESTON,
From the 335th District Court
Burleson County, Texas
Trial Court No. 14,220
MEMORANDUM OPINION
Curtis Wayne Huddleston appeals from the trial court’s order denying his
pretrial application for writ of habeas corpus. We affirm.
In his sole issue, Huddleston argues that the “child pornography law is invalid
under strict scrutiny because it outlaws expression outside the First Amendment free
zone demarcated by the courts, destroys fundamental rights, and authorizes seriously
discriminatory enforcement.” Pretrial habeas, followed by an interlocutory appeal, is
an "extraordinary remedy," and appellate courts should be careful to ensure that it 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); Ex Parte Barnett, 424 S.W.3d 809, 810 (Tex.App.-Waco 2014, no
pet.). Whether a claim is even cognizable on pretrial habeas is a threshold issue that
should be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309
S.W.3d at 79; Ex Parte Barnett, 424 S.W.3d at 810.
Pretrial habeas is not available to test the sufficiency of the charging instrument
or to construe the meaning and application of the statute defining the offense charged.
Ex parte Ellis, 309 S.W.3d at 79. 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.
Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in
the defendant's favor, it would deprive the trial court of the power to proceed and
result in the appellant's immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex.
Crim. App. 2006); Ex Parte Barnett, 424 S.W.3d at 810. When an applicant contends that
a criminal statute is facially unconstitutional, he is contending that there is no valid
statute and that the charging instrument is therefore void. Ex parte Weise, 55 S.W.3d
617, 620 (Tex. Crim. App. 2001).
Section 43.26 of the Texas Penal Code provides that:
(a) 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
Ex parte Huddleston Page 2
(2) the person knows that the material depicts the child as described by
Subdivision (1).
TEX. PENAL CODE ANN. § 43.26 (a) (West Supp. 2013). Huddleston argues that the
statute is facially unconstitutional, but such an assertion is not, by itself, enough. See Ex
parte Ellis, 309 S.W.3d at 80. If a claim designated as a facial challenge is in fact an “as
applied” challenge, this Court will not consider the merits of the claim. Id.
Huddleston asserts that the statute is constitutionally invalid because it
criminalizes the mere receipt of information, it criminalizes a substantial amount of
protected activity, and it authorizes seriously discriminatory enforcement. First,
Huddleston presents situations in which a person innocently receives unsolicited visual
material depicting a child younger than 18 years of age engaging in sexual conduct.
Huddleston also complains that the statute does not provide a defense that is available
to minors under a similar statute. Huddleston’s various fact situations present an “as
applied” challenge to the statute.
Next, Huddleston argues that the statute is overbroad because it criminalizes
protected activity. Huddleston provides examples of conduct that are prohibited, but
that are not related to preventing child abuse. Again Huddleston provides various
factual situations based upon how the statute is applied. Finally, Huddleston argues
that the statute authorizes discriminatory enforcement. Huddleston points out
inconsistencies in the age requirement for this statute as compared to other statutes
defining minors. Huddleston provides examples that a person would not have notice
of when a 17 year old is considered an adult or a child. Huddleston again complains
Ex parte Huddleston Page 3
that minors are provided a defense that is not available to adults. Huddleston’s
complaints again are based upon application of the statute. Because Huddleston’s
complaints all concern the statute “as applied,” we cannot address the complaints in an
interlocutory appeal from a pretrial writ of habeas corpus. We overrule the sole issue.
We affirm the trial court’s order denying the pretrial writ of habeas corpus.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
[CR25]
Ex parte Huddleston Page 4
APPENDIX A-2
FILE COPY
TENTH COURT OF APPEALS
Chief Justice McLennan County Courthouse
Tom Gray 501 Washington Avenue, Rm. 415
Clerk
Justices
Waco, Texas 76701-1373 Sharri Roessler
Rex D. Davis Phone: (254) 757-5200 Fax: (254) 757-2822
Al Scoggins
November 12, 2014
Clyde W. Chandler Benton Ross Watson
Attorney At Law 120 E 1st Street
120 E. 1st St. Box 1000
Cameron, TX 76520 Cameron, TX 76520
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 10-14-00073-CR
Trial Court Case Number: 14,220
STYLE: Ex parte Curtis Wayne Huddleston
Relator’s Motion for Rehearing is denied today. Chief Justice Gray would request a response
with a view toward granting the motion for rehearing and addressing the merits of the issue as a
facial challenge to the validity of the statute. As to the merits of the issue, similar statutes
regarding the possession of child pornography have been determined to not be unconstitutional
on their face and, therefore, upon the basis of the analysis and rationale in those cases the trial
court’s order denying the petition for writ of habeas corpus as well as this Court’s judgment
affirming that order are proper. With these comments, Chief Justice Gray respectfully dissents to
the summary denial of the motion for rehearing.
Sincerely,
SHARRI ROESSLER, CLERK
By: ___________________________
Nita Whitener, Deputy Clerk
CC: Julie L. Renken (DELIVERED VIA E-MAIL)