Ex Parte Ronald Thompson
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
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 appeаl.
ANALYSIS
A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broad-
casts, 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.
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 arе separate criminal actions, and the applicant has the right to an immediate appeal before trial begins. Greenwell v. Court of Appeals 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).23 However, when the trial court’s
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 tо 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 (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 (2004); Nyabwa, 366 S.W.3d at 724.
First Amendment Implications: Does the Statute Regulate Protected Speech?
The freе 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. Cmty. For Creative Non-Violence, 468 U.S. 288, 294 (1984).
Thompson contends the improper photography statute regulates protеcted 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, 468 (2010); Regan v. Time, Inc., 468 U.S. 641, 648 (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 (1989).
The court in Nyabwa held
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,
Furthermore, unlike the statute in Scott,
Does the Statute Regulate Speech in a Content-Based or Content-Neutral Manner?
We must now determine whether the statute regulates speech in a content-based or content-neutral manner. As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based, whereas laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are content neutral. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994). Courts review content-based laws that suppress, disadvantage, or impose differential burdens on speech because of its content under a strict scrutiny standard. Id. To uphold content-based laws under this standard, the government must show: (1) the restriction is necessary to serve a compelling state interest, and (2) the law is narrowly drawn to achieve that end. Martinez v. State, 323 S.W.3d 493, 504 (Tex.Crim.App.2010).
In contrast, content-neutral laws that govern expression but do not seek to restrict its content are subject to intermediate scrutiny. Turner, 512 U.S. at 642. The U.S. Supreme Court in United States v. O‘Brien set out a four-part test to determine whether content-neutral restrictions on protected speech are constitutional and valid under the First Amendment. See 391 U.S. 367, 377 (1968); Foster v. City of El Paso, 396 S.W.3d 244, 253 (Tex.App.-El Paso 2013, no pet.) Under this test, restriсtions that are content neutral in time, place and manner are valid, even if they cause an adverse impact on the exercise of First Amendment rights, provided: (1) they are within the constitutional power of the government; (2) they further an important or substantial governmental interest; (3) the asserted governmental interest is unrelated to the suppression of free expression; and (4) the incidental restrictions on alleged First Amendment freedoms are no greater than is essential to the furtherance of that interest. Rivera, 363 S.W.3d at 667 n. 7 (quoting O’Brien, 391 U.S. at 377).
Thompson argues
Does the Statute Reach a Substantial Amount of Constitutionally Protected Conduct?
Having held the statute regulates speech in a content neutral manner, we must now dеtermine whether the statute meets the four-part O’Brien test. See Combs v. Tex. Entm‘t Ass’n, 347 S.W.3d 277, 286 (Tex.2011); Foster, 396 S.W.3d at 253.
Thompson contends the statute does not meet any of the factors in the O’Brien
Thompson also challenges the third and fourth O’Brien factors—the statute’s governmental interest suppresses free expression, and the statute significantly restricts alleged First Amendment freedoms. See O‘Brien, 391 U.S. at 377. Specifically, Thompson argues the statute is “not sufficiently narrow ... to bring it into the realm of constitutionality.” See Olvera v. State, 806 S.W.2d 546, 550 (Tex.Crim.App.1991) (en banc) (citing Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983)) (holding restrictions embodied in content neutral statute must be narrowly tailored to serve significant government interest while leaving open sufficient alternative channels of communication).
Thompson contends the statute is not narrowly tailored to serve an important government interest, but is overbroad and vague. Thompson argues the statute would criminalize the generally accepted or legal conduct of photographing or videotaping a person without the subject’s consent. For example, Thompson points to sexually arousing photographs of celebrities taken by paparazzi or photographs taken of “a fully-clothed adult walking down a public street.” See Nyabwa, 366 S.W.3d at 712. Because Thompson contends the statute is both unconstitutionally overbroad and vague, we address the overbreadth challenge first. See Roberts v. State, 278 S.W.3d 778, 790 (Tex.App.-San Antonio 2008, pet. ref‘d); (citing Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.-Houston [14th Dist.] 2007, pet. ref‘d)).
A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, it sweeps within its coverage speech or conduct protected by the First Amendment. Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989) (en banc); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982);
The First Amendment prohibits laws that abridge freedom of speech.
We first hold the application of the statute would potentially penalize some protected speech. The State contends the mere fact that we can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Some courts have held a statute that prohibits intentional conduct is rarely subject to a facial overbreadth challenge. See Sullivan v. State, 986 S.W.2d 708, 712 (Tex.App.-Dallas 1999, no pet.). However, we hold this statute is different from other intentional conduct statutes in that it is “virtually unbounded in its potential application,” see Nyabwa, 366 S.W.3d at 711 (Keller, P.J., dissenting), and constitutes a substantial restriction on protected conduct. See Bynum, 767 S.W.2d at 774.
The 14th Court of Appeals held in Nyabwa, and the State argues in this case, that the specific intent requirement in the improper photography statute renders the statute constitutional for First Amendment purposes. The State points out that statutes with the “intent to arouse or gratify the sexual desire of any person” requirement have been upheld. See, e.g., Byrum v. State, 762 S.W.2d 685, 687-88 (Tex.App.-Houston [14th Dist.] 1988, no pet.); see also Nyabwa, 366 S.W.3d at 727. However, the difference bеtween the improper photography statute and the statutes that include the same intent requirement is that those statutes criminalize unprotected, illegal activity, whereas
“Broad prophylactic rules in the area of free expression are suspect ... [p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963). Thompson contends the statute requires law enforcement officers to make subjective judgments regard-
It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment. Furthermore, the location identifier of
Accordingly, we hold
Conclusion
Based on the foregoing, we hold