Ex Parte Arelius Alphonsa McGregor

Opinion issued December 23, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00346-CR
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EX PARTE ARELIUS ALPHONSA MCGREGOR, Appellant
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1570410-A
MEMORANDUM OPINION
Appellant, Arelius Alphonsa McGregor, challenges the trial court’s order
denying his pretrial application for writ of habeas corpus. 1 In his sole issue,
appellant contends that the trial court erred in denying him habeas relief.
We affirm.
1
See TEX. R. APP. P. 31.
Background
On November 11, 2017, the State charged appellant with the felony offense
of unlawful disclosure of intimate visual materials prohibited by Texas Penal Code
section 21.16(b), commonly known as the “revenge porn” statute.2 Later, a Harris
County Grand Jury issued a true bill of indictment, alleging that appellant on or
about October 12, 2017,
unlawfully, intentionally disclose[d] visual material, namely, a film,
which depicted [the complainant], engaged in sexual conduct, and said
visual material was created under circumstances in which the
[c]omplainant had a reasonable expectation that said visual material
would remain private, and the disclosure of said visual material
cause[d] harm to the [c]omplainant, namely by causing public
embarrassment, and the disclosure of said visual material revealed the
identity of the [c]omplainant, namely by showing the face of the
complainant in the film and posting the film to the complainant’s social
media page.[3]
(Emphasis omitted.)
Appellant filed a pretrial application for writ of habeas corpus, arguing that
Texas Penal Code section 21.16(b) is unconstitutional under the First Amendment
to the United States Constitution because it is facially overbroad and vague in
violation of the right to free speech. The trial court denied appellant’s requested
habeas relief.
2
See TEX. PENAL CODE ANN. § 21.16(b).
3
See id.
2
Appellant timely filed a notice of appeal from the trial court’s denial of his
pretrial habeas application. In the sole issue raised in his appellant’s brief, appellant
argues that the trial court erred in denying him habeas relief because Texas Penal
Code section 21.16(b) is unconstitutional as it violates the First Amendment to the
United States Constitution. Appellant noted in his appellant’s brief that his sole issue
on appeal—whether section 21.16(b) was unconstitutional under the First
Amendment—was pending in several of our sister appellate courts. Subsequently,
in one such case from the Tyler Court of Appeals, the Court of Criminal Appeals
granted a petition for review to consider the issue.4
Accordingly, on August 28, 2018, we abated this appeal pending the Court of
Criminal Appeals’ consideration of the constitutionality of section 21.16(b).5 In our
August 28, 2018 abatement order, we noted that the appeal would be reinstated after
the Court of Criminal Appeals issued an opinion or upon a motion to reinstate by
either party.
On May 26, 2021, the Court of Criminal Appeals issued an opinion in Ex parte
Jones, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (not
4
See Ex parte Jones, No. PD-0552-18, 2021 WL 2126172, at *1–17 (Tex. Crim. App.
May 26, 2021) (not designated for publication).
5
See id.; see also In re Marriage of A.L.F.L., No. 04-14-00346-CV, 2014 WL
4357457, at *1 (Tex. App.—San Antonio Aug. 13, 2014, corrected order) (appellate
court granted appellant’s motion to abate appeal pending Texas Supreme Court’s
resolution of similar issue).
3
designated for publication). In its opinion, the Court of Criminal Appeals held that
Texas Penal Code section 21.16(b), when “properly construed, is not overbroad.”6
Further, the Court of Criminal Appeals concluded that while section 21.16(b) acts
as “content-based restriction,” it does not violate the First Amendment’s right to free
speech, because it is “narrowly tailored to serve a compelling governmental interest,
namely, protecting sexual privacy.”7
Thus, the Court of Criminal Appeals held that Texas Penal Code section
21.16(b) was not unconstitutional and did not violate the First Amendment to the
United States Constitution.8 After the Court of Criminal Appeals issued its opinion
in Ex parte Jones, the State filed a motion to reinstate this appeal.
Standard of Review
A pretrial writ of habeas corpus is an extraordinary remedy. Ex parte Ingram,
533 S.W.3d 887, 891 (Tex. Crim. App. 2017); see also Ex parte Arango, 518 S.W.3d
916, 923 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (proper use of pretrial
habeas relief is where “conservation of judicial resources would be better served by
interlocutory review” (internal quotations and citation omitted)). “Pretrial habeas
6
See Ex parte Jones, 2021 WL 2126172, at *17.
7
See id.8
See id. at *1, *17.
4
can be used to bring a facial challenge to the constitutionality of the statute that
defines the offense.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).
The constitutionality of a statute is a question of law that we review de novo.
Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). Further, when the
constitutionality of a statute is contested, we presume the statute is legal and that the
legislature did not act unreasonably or arbitrarily. Lawson v. State, 283 S.W.3d 438,
440 (Tex. App.—Fort Worth, pet. ref’d 2009). The burden of proof typically rests
upon the person challenging the statute to establish its unconstitutionality. See id.In the absence of contrary evidence, we assume that the legislature operated in a
constitutionally sound manner. See id. Unless the contrary is shown, we strive to
interpret a statute in a way that preserves and upholds its constitutionality. See
Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
As a result, the states have authority under the federal constitution to narrowly
interpret a statute in order to prevent a constitutional violation. See Ex parte
Thompson, 442 S.W.3d 325, 339 (Tex. Crim. App. 2014). However, “a narrowing
construction should be employed only if the statute is readily susceptible to one.”
Id. We are under no obligation to rewrite a statute that is not easily narrowed because
doing so would be a severe infringement of the legislative domain and would
significantly reduce the legislature’s incentive to adopt a narrowly construed statute
in the first place. See id. This statement runs parallel with our long-standing practice
5
of applying the plain meaning of a statute unless the language is so obscure or the
plain interpretation produces irrational results that the legislature did not intend. See
id. at 339–40.
Section 21.16(b)
In his sole issue, appellant argues that the trial court erred in denying him
habeas relief because Texas Penal Code section 21.16(b) is unconstitutional as it
violates the First Amendment to the United States Constitution.
Appellant was charged under the 2017 version of Texas Penal Code section
21.16(b), which provided that:
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person
intentionally discloses visual material depicting another person with the
person’s intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under
circumstances in which the depicted person had a reasonable expectation that
the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person;
and
(4) the disclosure of the visual material reveals the identity of the depicted
person in any manner, including through:
(A) any accompanying or subsequent information or material related to
the visual material; or
(B) information or material provided by a third party in response to the
disclosure of the visual material.
TEX. PENAL CODE ANN. § 21.16(b).
6
Section 21.16 defines “intimate parts” as “the naked genitals, pubic area, anus,
buttocks, or female nipple of a person.” Id. § 21.16(a)(1). And “sexual conduct” is
defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.” Id.
§ 21.16(a)(3). Further, “visual material” includes “any film, photograph, videotape,
negative, or slide or any photographic reproduction that contains or incorporates in
any manner any film, or photograph, videotape, negative, or slide” or “any disk,
diskette, or other physical medium that allows an image to be displayed on a
computer or other video screen and any image transmitted to a computer or other
video screen by telephone line, cable, satellite transmission, or other method.” Id.
§ 21.16(a)(5).
Appellant argues that section 21.16(b) is facially overbroad under the First
Amendment because it is a content-based restriction on speech that “restricts a real
and substantial amount of protected speech.” Thus, according to appellant, section
21.16(b) fails a strict-scrutiny analysis.
The First Amendment to the United States Constitution protects, among other
things, the freedom of speech. See U.S. CONST. amend. I (“Congress shall make no
law . . . abridging the freedom of speech.”). The First Amendment’s right to free
speech applies to the states by virtue of the Fourteenth Amendment. See U.S. CONST.
amends. I, XIV; W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638–39 (1943). The
7
First Amendment generally prohibits laws that “restrict expression because of its
message, its ideas, its subject matter, or its content.” See Ashcroft v. Am. Civil
Liberties Union, 535 U.S. 564, 573 (2002). Such laws are content based and
presumptively invalid. Ex parte Thompson, 442 S.W.3d at 348.
As noted above, the Court of Criminal Appeals recently, in Ex parte Jones,
addressed appellant’s sole issue in this appeal—whether Texas Penal Code section
21.16(b) is unconstitutional because it violates the First Amendment. In its opinion,
the Court of Criminal Appeals concluded that section 21.16(b), when “[p]roperly
construed, . . . does not violate the First Amendment.”9 See Ex parte Jones, 2021
WL 2126172, at *1. However, although the Court of Criminal Appeals’ opinion in
Ex parte Jones unambiguously resolves appellant’s sole issue in this appeal, the
opinion is unpublished, and as such, has “no precedential value and must not be cited
as authority by counsel or by a court.” See TEX. R. APP. P. 77.3; see also Turner v.
State, 443 S.W.3d 328, 333 n.2 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
(refusing to consider unpublished Court of Criminal Appeals’ opinion relied on by
appellant because it “ha[d] no precedential value” pursuant to rule 77.3’s directive).
9
While the decision of the Court of Criminal Appeals was unanimous, we note that
Justice Yeary filed a concurring opinion, and the presiding justice concurred in the
opinion, without a separate writing. See Ex parte Jones, 625 S.W.3d 118 (Tex.
Crim. App. 2021) (Yeary, J., concurring).
8
This Court has previously encountered this conundrum with respect to the
application of the Court of Criminal Appeals’ holding in Ex parte Jones. See Ex
parte Mora, Nos. 01-17-00661-CR, 01-17-00662-CR, --- S.W.3d ---, 2021 WL
3159805, at *1–2 (Tex. App.—Houston [1st Dist.] July 27, 2021, pet. ref’d). In that
case, we discussed an exception to Texas Rule of Appellate Procedure 77.3, which
allows us to cite to, and rely on, unpublished opinions of the Court of Criminal
Appeals “for the limited purpose of showing how the Court has interpreted
constitutional law.” See id. at *1; see also Alford v. State, 358 S.W.3d 647, 657 n.21
(Tex. Crim. App. 2012) (citing unpublished opinions to demonstrate how Court of
Criminal Appeals has interpreted and applied constitutional law).
In Ex parte Jones, the Court of Criminal Appeals decided an issue of
constitutional law and specifically held that Texas Penal Code section 21.16(b) does
not run afoul of the First Amendment. See Ex parte Jones, 2021 WL 2126172, at
*1. While Ex parte Jones is not necessarily binding authority on this Court, “as a
practical matter its reasoning calls for the same result in this materially
indistinguishable appeal.” See Ex parte Mora, 2021 WL 3159805, at *2. We
therefore adopt the reasoning of the Court of Criminal Appeals in Ex parte Jones
and hold that section 21.16(b) does not violate the First Amendment to the United
States Constitution. See Ex parte Jones, 2021 WL 2126172, at *1, *17.
9
Accordingly, we further hold that the trial court did not err in denying appellant
habeas relief.
Conclusion
We grant the State’s motion to reinstate the appeal and affirm the order of the
trial court.
Amparo Guerra
Justice
Panel consists of Justices Hightower, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
10