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]
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