Ex Parte Medger Chauncey Duckens ( 2022 )

Affirmed and Memorandum Opinion filed October 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00575-CR
EX PARTE MEDGER CHAUNCY DUCKENS
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1688384
MEMORANDUM OPINION
In this appeal from a judgment denying a pretrial application for writ of habeas
corpus, appellant Medger Chauncy Duckens contends that Penal Code section 43.26,
which criminalizes certain conduct pertaining to child pornography, is facially
overbroad and violates the free speech clauses 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
Penal Code section 43.26 is entitled “Possession or Promotion of Child
Pornography.” Under subsection 43.26(e), a person commits an offense if:
(1) the person knowingly or intentionally promotes or possesses with
intent to promote material described by Subsection (a)(1); and
(2) the person knows that the material depicts the child as described by
Subsection (a)(1).
Tex. Penal Code § 43.26(e). The material described in subsection (a)(1) is “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).” Id. § 43.26(a)(1). To “promote” the described material includes its
manufacture. Id. § 43.25(5) (defining “promote”).
A Harris County grand jury indicted appellant on one count of promotion of
child pornography in violation of section 43.26(e). The indictment alleged that
appellant:
unlawfully, intentionally and knowingly manufacture[d] visual
material, namely manufacture[d] a digital image that visually depicts a
child younger than eighteen years of age at the time the image was
made, who is engaging in sexual conduct, to wit: LEWD EXHIBITION
OF THE GENITALS, and [appellant] knew that the visual material
depicted the child engaging in said sexual conduct.
Appellant sought pretrial dismissal of the charge in an application for writ of
habeas corpus. In his Second Amended Application for Writ of Habeas Corpus,
appellant asserted that section 43.26 is facially unconstitutional as overbroad for
three reasons:
• it punishes as “child pornography” the possession of images of
people who may effectively consent to sexual conduct;
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• it punishes as “child pornography” the possession of images of
“lewd exhibitions of . . . the anus, or any portion of the female
breast below the top of the areola,” which is speech that the
United States has never recognized as child pornography; and
• it punishes as “child pornography” the possession of images of
“simulated” sexual conduct, which does not implicate the
purposes of the child pornography exception to free speech.
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.
Analysis
In appellant’s first four issues on appeal, he contends that section 43.26 is
facially unconstitutional: under the United States and Texas Constitutions because
it forbids as child pornography images of people who are not children for purposes
of engaging in sexual conduct, i.e., seventeen-year-olds; 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 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
contends that the statute is facially unconstitutional under the First Amendment to
the United States Constitution because it restricts possession by a person under
eighteen years of age of images of himself or herself. And in his sixth 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.”
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A. Standard of Review and Applicable Law
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)). Pretrial habeas, followed by an interlocutory
appeal, is an extraordinary remedy, reserved for situations when the protection of
the applicant’s substantive rights or the conservation of judicial resources are better
served by interlocutory review. Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex.
Crim. App. 2017). Unless double jeopardy is involved, pretrial habeas is not
available unless the question presented, if resolved in the defendant’s favor, would
result in an immediate release from custody. Id.A defendant may seek pretrial habeas relief only in limited circumstances.
Greenwell, 159 S.W.3d at 649-50 (citing Ex parte Smith, 178 S.W.3d 797, 801 (Tex.
Crim. App. 2005)). Those limited circumstances include a facial challenge to the
constitutionality of a statute. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010). A party raising a facial challenge to the constitutionality of a statute must
demonstrate that the statute operates unconstitutionally in all of its applications.
State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013); State ex rel. Lykos
v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). In such a facial challenge,
courts consider the statute only as it is written, rather than how it operates in practice.
Fine, 330 S.W.3d at 908. A facial constitutional challenge to a statute is extremely
difficult to prove, as all courts presume that the Legislature enacted a constitutional
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law and all courts must seek to uphold the facial constitutionality of legislative
enactments. Id. at 909.
B. Jurisdiction
We first address the trial court’s jurisdiction. To attack the facial
constitutionality of a penal statute, the defendant must show that the challenged
statute is “being invoked against him,” Ingram, 533 S.W.3d at 892, which generally
means that the challenger “was convicted or charged under that portion of the statute
the constitutionality of which he questions.” Fine, 330 S.W.3d at 909; see Ex parte
Usener, 391 S.W.2d 735, 736 (Tex. Crim. App. 1965); Boas v. State, 604 S.W.3d
488, 493 (Tex. App.—Houston [14th Dist.] 2020, no pet.). A party generally lacks
standing to challenge the constitutionality of a statute under which he has not been
charged. E.g., Fine, 330 S.W.3d at 909 (explaining that accused must show that he
was convicted or charged under “portion of the statute the constitutionality of which
he questions”).
In his third issue, appellant complains that section 43.26 is facially
unconstitutional because the statute’s inclusion of “lewd exhibition of … the anus,
or any portion of the female breast below the top of the areola” “expands the
definition of the content of the forbidden pornography beyond that which the
Supreme Court has allowed to be restricted.” Additionally, in his fourth issue,
appellant urges that the statute is facially overbroad because it punishes as child
pornography images of “simulated” sexual conduct.
Appellant has not shown that the portions of section 43.26 about which he
complains in his third and fourth issues have been invoked against him. He was not
charged with the promotion of visual material depicting the “lewd exhibition of …
the anus, or any portion of the female breast below the top of the areola” of a child
younger than eighteen, or with the promotion of visual material depicting simulated
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sexual conduct of a child younger than eighteen. He was charged only with
manufacturing a digital image visually depicting a child younger than eighteen at the
time the image was made, who is engaging in “lewd exhibition of the genitals.”
Thus, the trial court lacked jurisdiction to address the purported facial challenges
asserted in appellant’s third and fourth issues. E.g., State v. Stubbs, 502 S.W.3d 218,
223 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (trial court lacked
jurisdiction to declare entire online impersonation statute unconstitutional when
appellant was only indicted under subsection (a) of the statute); see also Ex parte
Maddison, 518 S.W.3d 630, 635 (Tex. App.—Waco 2017, pet. ref’d) (same); Boas,
604 S.W.3d at 494-95. Even a favorable resolution of these issues would not deprive
the trial court of power to proceed on appellant’s current charge or result in his
immediate release and addressing these issues would result in a prohibited advisory
opinion. See Ingram, 533 S.W.3d at 891-92; Smith, 185 S.W.3d at 892 (explaining
that, 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”); cf. Salinas v. State, 464 S.W.3d 363,
366 (Tex. Crim. App. 2015) (explaining that it is well-settled that a statute’s
constitutionality should not be determined in any case unless that determination is
“absolutely necessary to decide the case in which the issue is raised”); Fine, 330
S.W.3d at 909.
Accordingly, we overrule appellant’s third and fourth issues.
C. Constitutional Overbreadth Analysis
The trial court had jurisdiction, however, over the contentions raised in
appellant’s first and second issues because those arguments concern facial
challenges to portions of the statute appellant stands accused of violating. In those
issues, appellant argues that the statute punishes the promotion of visual material
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visually depicting a seventeen-year-old engaging in sexual conduct. As appellant
contends, a seventeen-year-old person in Texas can “effectively consent to sexual
contact with a person of any age.” According to appellant, the person depicted in
the visual image that is the subject of the indictment was seventeen years old when
the image was made. For these reasons, appellant says the statute is facially
overbroad under both the U.S. and Texas Constitutions.
This court has recently addressed and rejected identical arguments, as have
the First and Ninth Courts of Appeals. Fusselman, 621 S.W.3d at 117-22; Ex parte
Fusselman, Nos. 09-21-00129-CR, 09-21-00130-CR, 09-21-0131-CR, 09-21-
00132-CR, 09-21-00133-CR, 09-21-00134-CR, 09-21-00135-CR, 09-21-00136-
CR, 09-21-00137-CR, 09-21-00138-CR, 2022 WL 1395316, at *2 (Tex. App.—
Beaumont May 4, 2022, no pet. h.) (mem. op., not designated for publication); Ex
parte Dehnert, 605 S.W.3d 885, 890-96 (Tex. App.—Houston [1st Dist.] 2020, pet.
ref’d).
Appellant acknowledges this court’s binding precedent in Fusselman, and he
does not seek to distinguish it. For the reasons stated in Fusselman, we hold here
that section 43.26 is not unconstitutionally overbroad because it prohibits possession
of pornography that depicts seventeen-year-olds, who, as appellant urges, “are not
children for purposes of engaging in sexual conduct.” Fusselman, 621 S.W.3d at
117-20; see also Dehnert, 650 S.W.3d at 890-96.
We overrule appellant’s first two issues.
D. Appellant’s Fifth and Sixth Issues are Unpreserved
In appellant’s fifth issue, he asserts that section 43.26 is unconstitutional
because it restricts possession by a person under eighteen years of age of images of
himself or herself. In his sixth issue, he contends that, even if none of the forms of
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overbreadth alleged in his first five issues would render section 43.26 “substantially
overbroad, . . . some combination of them would.” Appellant addressed neither issue
in his live application—his second amended writ application filed February 25,
2020.1 Accordingly, appellant did not preserve these issues for our review. See Tex.
R. App. P. 33.1; Fusselman, 621 S.W.3d at 122-23; State v. Condran, 951 S.W.2d
178 (Tex. App.—Dallas 1997), pet. dism’d as improv. granted, 977 S.W.2d 144(Tex. Crim. App. 1998); Galvan v. State, 869 S.W.2d 526, 528 (Tex. App.—Corpus
Christi 1993, pet. ref’d) (when reviewing an appeal from the denial of a pretrial
application for writ of habeas corpus, we review the record as it existed before the
trial court at the time of the habeas hearing).
We overrule appellant’s fifth and sixth issues.
Conclusion
Having considered and rejected all reasons advanced by appellant for holding
Penal Code section 43.26 unconstitutionally overbroad, we overrule appellant’s
issues. We affirm the trial court’s judgment denying appellant’s second amended
application for writ of habeas corpus.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
1
Appellant raised his fifth issue in his initial writ application and his first amended writ
application. But he excluded this issue entirely from his second amended writ application, which
was the live pleading at the time of the court’s hearing on his application.
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