Ex Parte Leonard Walton Fusselman

Affirmed and Opinion filed March 30, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00549-CR
NO. 14-20-00550-CR
NO. 14-20-00551-CR

EX PARTE LEONARD WALTON FUSSELMAN

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 17-DCR-080374, 17-DCR-080375, & 17-DCR-080376

OPINION

Appellant Leonard Walton Fusselman appeals from the orders denying him
the relief he requested in his pretrial applications for writ of habeas corpus. In five
issues appellant contends that the Penal Code statute prohibiting the possession of
child pornography is facially overbroad and violates the Free Speech Clause 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

Appellant was indicted for three counts of possession of child pornography in
violation of section 43.26 of the Texas Penal Code. In each case appellant filed a
Second Amended Application for Writ of Habeas Corpus1 in which he asserted that
section 43.26 was unconstitutional. The trial court held a hearing at which no
evidence was taken. Following the hearing the trial court denied appellant’s
requested relief of dismissal of the indictments.

In appellant’s applications for writ of habeas corpus he asserted section 43.26
was unconstitutionally broad in three respects:

• The statute forbids possession of images of people engaged in
sexual conduct who are not children for purposes of engaging in
sexual conduct;
• The statute’s inclusion of “lewd exhibition of . . . the anus, or any
portion of the female breast below the top of the areola”
unconstitutionally expands the definition of forbidden content;
and
• the statute punishes simulated sexual conduct as child
pornography.

In appellant’s first four issues on appeal he challenges the trial court’s rulings
on his applications for writ of habeas corpus asserting the statute is facially
unconstitutional (1) under the United States Constitution because it forbids as child
pornography images of people who are not children for purposes of engaging in
sexual conduct; (2) under the Texas Constitution because it forbids as child
pornography images of people who are not children in Texas for purposes of
engaging in sexual conduct; (3) under the United States Constitution because it
punishes as child pornography images of body parts that the Supreme Court has not

1
Appellant’s Second Amended Petition was the live pleading at the time of the trial court’s
order.

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categorized as child pornography; and (4) 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 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.”

ANALYSIS

I. Standard of review and applicable law

In general, we 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. Phuong Anh Thi Le v. State, 300 S.W.3d 324, 327 (Tex. App.—Houston
[14th Dist.] 2009, no pet.).

Pretrial habeas corpus proceedings are separate criminal actions, and the
applicant has the right to an immediate appeal before trial begins. Greenwell v. Court
of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 649–50 (Tex. Crim.
App. 2005). A defendant may only seek pretrial habeas relief in limited
circumstances. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). Those
limited circumstances are (1) to challenge the State’s power to restrain the defendant;
(2) to challenge the manner of pretrial restraint, i.e., the denial of bail or conditions
of bail; and (3) to raise certain issues that would bar prosecution or conviction. Id.

In most cases, a facial challenge to the constitutionality of a statute can
succeed only when the statute is shown to be unconstitutional in all of its
applications. See State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013).
Under the First Amendment’s overbreadth doctrine, a statute may be declared
unconstitutional on its face, even if the statute has a legitimate application, and even

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if the defendant was not engaged in activity protected by the First Amendment. State
v. Johnson, 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015).

In the case of statutes that encroach upon activity protected by the First
Amendment, the challenger may bring a “substantial overbreadth” challenge. Under
such a facial challenge, a statute may be invalidated as overbroad if “a substantial
number of its applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010); see
also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (holding overbreadth
doctrine prohibits government from banning unprotected speech if substantial
amount of protected speech prohibited or chilled in process). This type of facial
challenge may be made when a statute restricts or punishes speech based upon its
content. See Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2014).

A law is “content-based” if it distinguishes between favored and disfavored
speech on the basis of the views expressed or if it is necessary to review the content
of the speech to determine whether the speaker violated the law. Ex parte Thompson,
442 S.W.3d 325, 345 (Tex. Crim. App. 2014). A content-based regulation that
distinguishes favored from disfavored speech based on the views expressed is
presumptively invalid, and the government bears the burden to rebut the
presumption. Lo, 424 S.W.3d at 15. We apply the “most exacting scrutiny to
regulations that suppress, disadvantage, or impose differential burdens upon speech
because of its content.” Id. (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.
622, 642, (1994)). To satisfy a strict scrutiny review, a statute that regulates speech
must be necessary to serve a compelling state interest and be narrowly drawn. Id. To
be considered narrowly drawn, a law must employ the least restrictive means to
achieve its goal and there must be a close nexus between the state’s compelling
interest and the restriction. Id. A statute may not be held overbroad merely because

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it is possible to conceive of some impermissible applications. United States v.
Williams, 553 U.S. 285, 303 (2008).

II. The challenged statute

As noted by our sister court, the first step in considering an overbreadth
challenge “is to construe the challenged statute; it is impossible to determine whether
a statute reaches too far without first knowing what the statute covers.” Ex parte
Dehnert, 605 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d)
(holding section 43.26(a) constitutional under identical challenges to those asserted
by appellant).

Section 43.26(a) of the Texas Penal Code provides that 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
(2) the person knows that the material depicts the child as described by
Subdivision (1).

Tex. Penal Code § 43.26(a).

“Sexual conduct” is defined as:

[S]exual contact, actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or
lewd exhibition of the genitals, the anus, or any portion of the female
breast below the top of the areola.

Tex. Penal Code §§ 43.26(b)(2), 43.25(a)(2).

“Simulated” is defined as:

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 [T]he explicit depiction of sexual conduct that creates the appearance
of actual sexual conduct and during which a person engaging in the
conduct exhibits any uncovered portion of the breasts, genitals, or
buttocks.

Tex. Penal Code § 43.25(a)(6).

III. Punishing the possession of child pornography involving 17-year-old
minors is not unconstitutional under the United States Constitution.

In appellant’s first issue he contends that section 43.26 is unconstitutional
under the First Amendment to the United States Constitution because it forbids as
“child pornography” images of people who are not children for purposes of engaging
in sexual conduct. Specifically, appellant asserts that because a seventeen-year-old
can effectively consent to sex, Texas cannot invoke as its compelling interest for
forbidding pornography of 17-year-olds protecting children under 18 from sexual
seduction or exploitation.

Appellant’s issue raises the question of the purpose of child pornography laws
vis-à-vis the First Amendment. Child pornography is not protected speech under the
First Amendment. Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458
U.S. 747 (1982). In 1977, Congress passed the first federal law aimed at child
pornography. See Protection of Children Against Child Exploitation Act of 1977,
Pub. L. No. 95-225, 92 Stat. 7 (1978). New York enacted one of the early child
pornography laws, the subject of which was addressed by the Supreme Court in
Ferber. 458 U.S. at 750. The Court rejected a First Amendment defense to New
York’s law giving five reasons why “the States are entitled to greater leeway in the
regulation of pornographic depictions of children.” Id. at 756. First, the government
has a compelling interest in “safeguarding the physical and psychological well-being
of a minor.” Id. at 756–57 (quoting Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 607 (1982)). Second, distribution of child pornography compounds the

6
sexual abuse of children by circulating a “permanent record” of the abuse. Id. at 759.
Third, outlawing the sale of child pornography reduces the economic incentive to
create it. Id. at 761–62. Fourth, any value of child pornography is “exceedingly
modest, if not de minimis.” Id. at 762. Fifth, categorically excluding child
pornography from the First Amendment is consistent with the longstanding
recognition that bans on certain types of speech escape First Amendment scrutiny
when “the evil to be restricted so overwhelmingly outweighs the expressive interests,
if any, at stake.” Id. at 763–64.

Not long after Ferber, the Supreme Court concluded that states may also ban
possession of child pornography. See Osborne, 495 U.S. at 111. Osborne, largely
echoing Ferber, cited the following reasons for its holding: punishing possession
reduces demand for the pornography; a ban on possession may limit the reputational
damage to the child by encouraging destruction of the images; and “evidence
suggests that pedophiles use child pornography to seduce other children into sexual
activity.” Id. at 109–11.

Our sister court of appeals, in a case in which the Texas Court of Criminal
Appeals refused discretionary review, considered and rejected an identical
argument. Dehnert, 605 S.W.3d at 890–92. The First Court held that the fact that a
17-year-old child can consent to sex does not compel the conclusion that the same
child can consent to participate in pornography. Id. at 891. In arriving at this
conclusion, the First Court considered Texas cases that had addressed challenges to
section 43.25 of the Penal Code (the sexual-performance-by-a-child statute) as
overbroad. See Ex parte Fujisaka, 472 S.W.3d 792, 800 (Tex. App.—Dallas 2015,
pet. ref’d) and Dornbusch v. State, 156 S.W.3d 850, 867 (Tex. App.—Corpus Christi
2005, pet. ref’d).

The courts in Fujisaka and Dornbusch addressed challenges that the sexual-

7
performance-by-a-child statute was unconstitutional because the statute applied to
children under 18 years old, but the sexual-assault statute applied to children under
17. Compare Tex. Penal Code § 43.25 (sexual performance by a child) with Tex.
Penal Code § 22.011 (sexual assault). Addressing this issue, the Fujisaka court
noted:

Although there is some overlap between the offenses set forth in Title
Five of the penal code, addressing offenses against persons, and the
offenses set forth in Title Nine of the penal code, addressing offenses
against public order and decency, we see no necessary inconsistency
between the provisions of these titles and no reason why the age of
consent to sexual relations in the Title Five offenses need be the same
as the threshold age for prosecutions of conduct violative of public
order and decency in Title Nine. Compare §§ 21.11(a), 22.011(a)(2),
(c)(1), and 22.021(a)(1)(B), (b)(1) (criminalizing sexual conduct with
persons younger than seventeen years of age), with §§ 43.02(c)(3),
43.03(b)(2), 43.04(b), 43.251(a)(1), and 43.26(a)(1) (criminalizing or
enhancing punishment for offenses involving persons younger than
eighteen years of age). Appellant has not provided any authority
mandating an age limit on regulations aimed at protecting children and
society from adults exploiting children for sexual purposes. We do not
find the argument persuasive that the age restriction cannot be set by
the legislature at seventeen years for some purposes and eighteen years
for others. See, e.g., 18 U.S.C.A. § 2256(1) (West 2015) (defining
“minor” as “any person under the age of eighteen years” for purposes
of federal law prohibiting the sexual exploitation and other abuse of
children). Appellant’s suggestion that we interpret the statute to
encompass only sexual conduct or sexual performances that are
otherwise proscribed by Title Five offenses does not fully grasp the
significance of the government’s compelling interest in protecting
children from sexual exploitation. See New York v. Ferber, 458 U.S.
747, 757, 102 S. Ct. 3348, 73 L.Ed.2d 1113 (1982) (recognizing “[t]he
prevention of sexual exploitation and abuse of children constitutes a
government objective of surpassing importance”).

Fujisaka, 472 S.W.3d at 800–01.

The Dornbusch court, also considering a challenge to section 43.25, noted:

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 Furthermore, section 21.11 [the indecency-with-a-child statute] is in the
part of the penal code that criminalizes offenses against persons,
whereas section 43.25 is in the part of the code that criminalizes
offenses against the public decency and order. See §§ 21.11, 43.25(b).
A helpful analogy can be drawn between inducement of sexual conduct
by a child and prostitution. Both are offenses against the public decency
and order. Prostitution is not a crime against the prostitute; it is an
offense against the “public decency and order” because it violates the
moral values of society. See Tex. Pen. Code Ann. § 43.02 (Vernon
2003). Consequently, a prostitute’s consent to sex in exchange for
money does not make the conduct legal. It still amounts to prostitution.
Similarly, although an adult’s consensual sexual contact with a
seventeen-year-old cannot be prosecuted as indecency with a child, the
teenager’s consent to sex does not de-criminalize the adult’s conduct
under section 43.25(b) because the adult’s conduct is a crime against
the public, not against the teenager. See §§ 21.11, 43.25(b).
Dornbusch, 156 S.W.3d at 871.

Fujisaka and Dornbusch decided whether section 43.25 of the Penal Code was
overbroad. Appellant here challenges section 43.26 of the Penal Code, but we find
the reasoning of Fujisaka and Dornbusch persuasive as did our sister court. Dehnert,
605 S.W.3d at 891.

That the State does not permit sex with a child under the age of 17 for purposes
of the sexual-assault statute or the indecency-with-a-child statute does not compel
the conclusion that the age must be the same for the child-pornography statute. Id.
Similarly, that a 17-year-old child can consent to sex does not compel the conclusion
that the same child can consent to participate in pornography. Id. The sexual-assault
statute is in the portion of the Penal Code prohibiting offenses against persons, while
the child-pornography statute is in the section of the Penal Code prohibiting offenses
against public order and decency. Given the different purposes of the statutes, the
Legislature could have believed that public order and decency would be best served
by prohibiting pornography involving all minors, even those who might be able to

9
consent to sex. Dehnert, 605 S.W.3d at 891. See also United States v. Bach, 400 F.3d
622, 629 (8th Cir.), cert. denied, 546 U.S. 901 (2005) (“the congressional choice to
regulate child pornography by defining minor as an individual under eighteen is
rationally related to the government’s legitimate interest in enforcing child
pornography laws[.]”).

Based on this authority, the First Court rejected Dehnert’s argument that
section 43.26 was overbroad because it does not require the depiction of a crime, i.e.
that the child be below the age of consent. Id. at 892. In light of Dehnert and the
cases cited therein, we similarly reject appellant’s argument that section 43.26 is
overbroad because it prohibits possession of pornography that depicts 17-year-olds.
We therefore overrule appellant’s first issue.

IV. The Texas Constitution does not provide greater protection of speech
than the First Amendment in this case.
In appellant’s second issue he asserts section 43.26 is facially unconstitutional
under article I, section 8 of the Texas Constitution2 for the same reason raised in his
first issue. Relying on Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex. 1992), appellant
contends that the Texas Constitution provides broader protection, not in the sense
that article I, section 8 can be read more broadly than the First Amendment, but “in
the narrower context of Texas, rather than the republic.” In this regard, appellant
relies again on the age of consent in Texas, a proposition we rejected in disposing of
appellant’s first issue.

As noted by our sister court in Dehnert and this court, The Supreme Court of
Texas has not interpreted article I, section 8 of the Texas Constitution more broadly

2
“Every person shall be at liberty to speak, write or publish his opinions on any subject,
being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the
liberty of speech or of the press.”

10
than the First Amendment in any case that does not involve an issue of a prior
restraint on free speech. Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex.
2003); Sanchez v. Striever, 614 S.W.3d 233, 244 (Tex. App.—Houston [14th Dist.]
2020, no pet.); Dehnert, 605 S.W.3d at 895–96. This case does not involve an issue
of a prior restraint on free speech, and appellant has shown no reason, based on “the
text, history, or purpose of Article I, Section 8,” for us to expand the protections
afforded beyond those provided by the First Amendment. Barber, 111 S.W.3d at
106 (quoting Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex.,
Inc., 975 S.W.2d 546, 559 (Tex. 1998)). We therefore overrule appellant’s second
issue asserting state constitutional grounds.

V. Punishing the possession of child pornography involving “exhibition of
. . . the anus, or any portion of the female breast below the top of the
areola” is not unconstitutional under the United States Constitution.
In appellant’s third issue he contends that section 43.26 is overbroad because
its definition of “sexual conduct” forbids the “lewd exhibition of . . . the anus, or any
portion of the female breast below the top of the areola.” See Tex. Penal Code
§ 43.25(a)(2). Appellant, relying on Miller v. California and New York v. Ferber,
contends that, while there can be lewd exhibition of the genitals, there can be no
lewd exhibition of the anus or female breast below the top of the areola. See Miller,
413 U.S. 15, 25 (1973) (interpreting statute prohibiting lewd exhibition of genitals);
Ferber, 458 U.S. at 751 (same). Because the statutes interpreted in Miller and Ferber
both prohibited lewd exhibition of the genitals, and did not include other body parts,
appellant argues that the Texas statute is unconstitutionally overbroad because “the
Supreme Court has never included in its definition of ‘child pornography’ anything
resembling” the Texas statute’s prohibition of the lewd exhibition of body parts other
than genitalia.

We agree with our sister court. See Dehnert, 605 S.W.3d at 892–93. The
11
Dehnert court noted that the Supreme Court’s prohibition against child pornography
cannot be read as narrowly as appellant suggests. Id. at 892. Relying on the Supreme
Court’s decision in Osborne, 495 U.S. at 106 and dicta in the Texas Court of
Criminal Appeals’ opinion in Savery v. State, 819 S.W.2d 837, 838 n.1 (Tex. Crim.
App. 1991), the Dehnert court held that section 43.26 was not unconstitutionally
overbroad because it prohibits the lewd exhibition of body parts other than genitalia.
Id. at 893.

Under the Supreme Court’s reasoning in Osborne, “the crucial question is on
whether the depiction is lewd, not whether the depiction happens to focus on the
genitals or the buttocks.” 495 U.S. at 114, n.11. As noted in Osborne, depictions of
nudity, without more, constitute protected expression. Id. at 112. The Ohio statute
reviewed in Osborne, and the Texas statute, survive overbreadth scrutiny because
both statutes avoid penalizing individuals for viewing or possessing innocuous
photographs of naked children. The Texas statute also focuses on the lewd exhibition
of, among other things, the anus or the female breast below the top of the areola. See
Tex. Penal Code § 43.25(a)(2). Thus, section 43.26(a) is not unconstitutionally
overbroad because it includes more body parts than genitalia. See Dehnert, 605
S.W.3d at 892–93. We overrule appellant’s third issue.

VI. Punishing the possession of child pornography involving “simulated”
sexual conduct is not unconstitutional under the United States
Constitution.
Appellant next argues that section 43.26 is overbroad because it forbids the
possession of images involving children involved in “simulated” sexual contact.
Specifically, appellant argues that, “images involving simulated sexual conduct,
which have no proximate link to any valid crime, do not fall into the narrow category
of child pornography, and so are protected speech.” (emphasis in original)

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 As noted above, real child pornography is not protected speech under the First
Amendment. Osborne, 495 U.S. at 110; Ferber, 458 U.S. at 747. But virtual child
pornography—sexually explicit images “created by using adults who look like
minors or by using computer imaging”—is protected speech. United States v.
Mecham, 950 F.3d 257, 260 (5th Cir. 2020), cert. denied, 141 S. Ct. 139, 207 L. Ed.
2d 1082 (2020) (quoting Free Speech Coalition, 535 U.S. at 239).

In Porath v. State, 148 S.W.3d 402, 414–15 (Tex. App.—Houston [14th Dist.]
2004, pet. denied), this court considered and rejected the argument that appellant
asserts today. In Porath, the defendant argued that section 43.26 was overbroad and
violated the First Amendment because “it draws no distinction between possession
of actual child pornography and child pornography created by digital or computer
imaging,” i.e., simulated sexual conduct. In rejecting this argument, we stated:

[A]ppellant relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234,
122 S. Ct. 1389, 152 L.Ed.2d 403 (2002). In Free Speech Coalition, the
United States Supreme Court considered a challenge to the Child
Pornography Prevention Act of 1996 (“CPPA”). Id. at 239, 122 S. Ct.
1389. The CPPA extended the federal prohibition of child pornography
to sexually explicit images that “appear to” depict minors engaging in
sexual conduct, but are produced without using any real children. Id.
Because the statute prohibited both protected and unprotected speech,
the Court held that the statute was unconstitutional to the extent it
regulated virtual images or images that merely appeared to depict
children engaged in sexual conduct. Id. at 256, 122 S.Ct. 1389. In so
holding, however, the Court also observed, “[t]he freedom of speech
has its limits; it does not embrace certain categories of speech,
including defamation, incitement, obscenity, and pornography
produced with real children.” Id. at 246, 122 S. Ct. 1389.
In Texas, it is an offense to knowingly or intentionally possess “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” if the person “knows that the material depicts the child”
engaging in sexual conduct. Tex. Pen. Code Ann. § 43.26(a) (Vernon
2003). Unlike the federal statute, the plain language of the Texas statute
13
 indicates that it prohibits only possession of material that depicts an
actual child, not material that merely “appears” to depict a child. Id.
Because section 43.26(a) only prohibits pornography depicting actual
children, the statute is not vague or overbroad. Webb v. State, 109
S.W.3d 580, 583 (Tex. App.—Fort Worth 2003, no pet.). Further,
because pornography produced with actual children is not a category of
speech protected by the First Amendment, the statute’s prohibition of
these materials does not violate the First Amendment. Id.; see also Free
Speech Coalition, 535 U.S. at 246, 122 S. Ct. 1389.

Porath, 148 S.W.3d at 414–15.

Appellant has not cited authority, nor have we found any, that overrules or
undermines our holding in Porath. Under the binding authority of Porath, we reject
appellant’s contention that section 43.26 unconstitutionally criminalizes simulated
sexual conduct. We overrule appellant’s fourth issue.

VII. Appellant waived his claim that a combination of “forms of overbreadth”
render the statute unconstitutional.
In appellant’s fifth issue he contends that, “If any of the three reasons that the
statute applies to constitutionally protected speech were not sufficient to render the
statute substantially overbroad, then the combination of ways that the statute applies
to constitutionally overbroad speech would be.” (emphasis in original) Appellant
waived this issue by failing to raise it in the trial court. See Tex. R. App. P. 33.1; See
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 issue because it was not preserved for review.

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 CONCLUSION

Having considered and rejected all reasons advanced by appellant for holding
Penal Code section 43.26 unconstitutionally overbroad, we overrule appellant’s
issues and affirm the trial court’s judgments denying appellant’s applications for writ
of habeas corpus.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.
Publish — Tex. R. App. P. 47.2(b).

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