Affirmed and Majority and Concurring Opinions filed October 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00576-CR
EX PARTE MEDGER CHAUNCEY DUCKENS
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1688385
MAJORITY 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 43.25,
which prohibits sexual performance by a child, is facially overbroad and violates the
free speech clauses of the United States and Texas Constitutions. See Tex. Penal
Code § 43.25; U.S. Const. amend. I; Tex. Const. art. I, § 8. We affirm.
Background
Penal Code section 43.25, entitled “Sexual Performance by a Child,” provides
that a person commits an offense if:
knowing the character and content thereof, he employs, authorizes, or
induces a child younger than 18 years of age to engage in sexual
conduct or a sexual performance.
Tex. Penal Code § 43.25(b). “Sexual conduct” includes lewd exhibition of the
genitals. Id. § 43.25(a)(2). “Sexual performance” means any performance or part
thereof that includes sexual conduct by a child younger than 18 years of age. Id.
§ 43.25(a)(1).
A Harris County grand jury indicted appellant on one count of sexual
performance by a child in violation of Penal Code section 43.25. The indictment
alleged that appellant:
on or about June 30, 2011, did then and there unlawfully, and knowing
the character and content thereof, employ, authorize, or induce a child
younger than eighteen years of age, namely K.D., hereafter called the
Complainant, to engage in sexual conduct, to-wit: the complainant
lewdly exhibited her genitals.
Appellant sought pretrial dismissal of the charge in an application for writ of
habeas corpus, in which he asserted that section 43.25 is unconstitutional.
Specifically, he asserted that section 43.25 is facially overbroad for two reasons:
• Because it punishes the employment, authorization, or
inducement of consensual expressive conduct by people who
may effectively consent to that conduct, which does not implicate
the purposes of the child pornography exception to free speech;
and
• Because it punishes the employment, authorization, or
inducement of “simulated” expressive 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.
2
Analysis
In his first two issues, appellant contends that section 43.25(b) is facially
unconstitutional under federal and state constitutional free-speech guarantees.
Further, appellant asserts in his third issue that the prohibited conduct falls outside
the scope of acceptable regulation on content-based speech, such as restrictions on
incitement speech or speech integral to criminal conduct. According to appellant,
the punishable conduct at issue is not a type of unprotected speech, the prevention
and punishment of which has “‘never been thought to raise any Constitutional
problem.’” United States v. Stevens, 559 U.S. 460, 469 (2010) (quoting Chaplinsky
v. New Hampshire, 315 U.S. 568, 571-72 (1942)).
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)). A defendant may seek pretrial habeas relief only
in limited circumstances, including a facial challenge to the constitutionality of a
statute. Greenwell, 159 S.W.3d at 649-50 (citing Ex parte Smith, 178 S.W.3d 797,
801 (Tex. Crim. App. 2005), and Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010)).
A facial challenge attacks the statute itself rather than the statute’s application
to the defendant. Peraza, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Generally,
to mount a successful facial constitutional challenge, the challenger must establish
3
that no set of circumstances exists under which the statute would be valid or that the
statute lacks any plainly legitimate sweep. Id.; see also Stevens, 559 U.S. at 472.
But in the case of statutes that encroach upon activity protected by the First
Amendment, the challenger may also bring a “substantial overbreadth” challenge.
Fusselman, 621 S.W.3d at 116. Under such a 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.” Stevens, 559 U.S. at 473; see
also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (overbreadth doctrine
prohibits government from banning unprotected speech if substantial amount of
protected speech is prohibited or chilled in process). This type of facial challenge is
available when a statute restricts or punishes speech based upon its content.
Fusselman, 621 S.W.3d at 116.
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 in order 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
that presumption. Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2013). We
apply the “most exacting scrutiny to regulations that suppress, disadvantage, or
impose different burdens on speech because of its content.” Id. To satisfy such 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 a close
nexus must exist between the state’s compelling interest and the restriction. Id. The
statute does not survive strict scrutiny review if there is a less restrictive means of
4
meeting the state’s compelling interest that would be at least as effective as the
statute under review. Id. at 15-16. But a statute may not be held overbroad merely
because it is possible to conceive of some impermissible applications. United States
v. Williams, 553 U.S. 285, 303 (2008).
B. Constitutional Overbreadth Analysis
Appellant raises a substantial overbreadth challenge. The first step is to
construe the challenged statute. Fusselman, 621 S.W.3d at 117; Ex parte Dehnert,
605 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). Penal Code
section 43.25(b) provides that a person commits an offense if:
knowing the character and content thereof, he employs, authorizes, or
induces a child younger than 18 years of age to engage in sexual
conduct or a sexual performance. A parent or legal guardian or
custodian of a child younger than 18 years of age commits an offense
if he consents to the participation by the child in a sexual performance.
Tex. Penal Code § 43.25(b).1 “Sexual conduct” under this statute includes “sexual
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.” Id.
§ 43.25(a)(2). “Sexual performance” means “any performance or part thereof that
includes sexual conduct by a child younger than 18 years of age.” Id. § 43.25(a)(1).
“Performance” includes “any play, motion picture, photograph, dance, or other
visual representation that can be exhibited before an audience of one or more
persons.” Id. § 43.25(a)(3). “Simulated” means “the explicit depiction of sexual
conduct that creates the appearance of actual sexual conduct and during which a
1
It is an affirmative defense to prosecution that: (1) the defendant was the spouse of the
child at the time of the offense; (2) the conduct was for a bona fide educational, medical,
psychological, psychiatric, judicial, law enforcement, or legislative purpose; or (3) the defendant
was not more than two years older than the child. Id. § 43.25(f).
5
person engaging in the conduct exhibits any uncovered portion of the breasts,
genitals, or buttocks.” Id. § 43.25(a)(6).
In his first issue, appellant argues, “Section 43.25(b) is facially overbroad
because it punishes the employment, authorization, or inducement of consensual
expressive conduct by people who may effectively consent to that conduct, which
does not implicate the purposes of the child pornography exception to free speech.”2
Drawing a comparison to the sexual assault statute, Penal Code section 22.011,
appellant bases his overbreadth argument on the premise that “sexual conduct
involving seventeen-year-olds is not a crime” in Texas. According to appellant, the
State lacks a “compelling interest” in forbidding speech which induces sexual
conduct by seventeen-year-olds because the “production of performances of
seventeen-year-olds is not a valid crime,” and “the prohibition of such performances
deters no crime.”
The Fifth Court of Appeals has rejected the same constitutional overbreadth
challenge to the sexual-performance-of-a-child statute as appellant raises here. See
Ex parte Fujisaka, 472 S.W.3d 792, 800-02 (Tex. App.—Dallas 2015, pet. ref’d).
In explaining the compelling interest the State has in protecting children from sexual
exploitation, the court observed:
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
2
Child pornography is not protected speech under the First Amendment. See Osborne v.
Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458 U.S. 747 (1982).
6
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 (1982) (recognizing “[t]he prevention of sexual exploitation
and abuse of children constitutes a government objective of surpassing
importance”).
Id. at 800-01.3
The Fujisaka court went on to explain that the sexual performance of a child
statute is narrowly drawn:
Because seventeen years is the age of consent to sexual relations in
Texas, and thus speech incidental to such relations would not be
categorically excluded from protection under the First Amendment, we
agree with appellant that application of section 43.25(b) to the
authorization or inducement of seventeen-year-old children to engage
in sexual conduct or a sexual performance is the most problematic
application of the statute. However, the set of applications where the
regulation is problematic is narrowed drastically by the removal of
cases involving only conduct as inducement, cases where the speech
seeks to induce a criminal act, the statute’s scienter requirement that the
3
This court quoted the same language with approval in Fusselman, where we rejected the
appellant’s arguments that section 43.26, prohibiting the possession of child pornography, was
overbroad because it prohibits the possession of pornography depicting seventeen-year-olds. See
Fusselman, 621 S.W.3d at 118-19.
7
inducement occur “knowing the character and content thereof,” and the
affirmative defenses incorporated into the statute. We conclude for the
vast majority of its potential applications, section 43.25(b) does not
raise issues of constitutional dimension. In contemplating the small
subset of potential applications that are left, we are persuaded that the
existence of some rare impermissible application does not establish that
the statute is substantially overbroad. See Williams, 553 U.S. at 303,
128 S.Ct. 1830. In reaching this conclusion, we note the differences
between the narrow intrusion into the First Amendment of section
43.25(b) as opposed to other statutes declared substantially overbroad.
See, e.g., Stevens, 559 U.S. at 461-62, 130 S.Ct. 1577 (noting that the
challenged statute banning commercial depictions of cruelty to animals
“creates a criminal prohibition of alarming breadth” that would apply
to hunting magazines and videos); Thompson, 442 S.W.3d at 350
(describing the scope of the improper photography statute as
“breathtaking” and noting it would apply “to any non-consensual
photograph, occurring anywhere, as long as the actor has an intent to
arouse or gratify sexual desire”); Lo, 424 S.W.3d at 20, 23 (observing
that unconstitutional portion of online solicitation act would “prohibit[]
the dissemination of a vast array of constitutionally protected speech
and materials” including works of literature, television shows, movies,
performances, and art); Ex parte Perry, 471 S.W.3d 63, 121 (Tex.
App.—Austin 2015, no pet. h.) (concluding statute prohibiting coercion
of a public servant was so overbroad it would criminalize public
servants’ lawful exercise of their powers and “much of the ordinary
day-to-day workings of government”).
Fujisaka, 472 S.W.3d at 800-02.
We agree with the Fifth Court of Appeals and likewise conclude that section
43.25(b) does not reach a substantial amount of constitutionally protected speech,
judged in relation to the statute’s plainly legitimate sweep. See id. We too hold that
the statute is not unconstitutionally overbroad, and it is narrowly tailored to serve a
compelling government interest. Id. (citing Stevens, 559 U.S. at 473; Lo, 424
S.W.3d at 15). Accordingly, appellant’s facial challenge under the United States
Constitution must fail. We overrule appellant’s first issue.
8
In appellant’s second issue, he asserts that section 43.25 is facially
unconstitutional under article I, section 8 of the Texas Constitution4 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 we have previously observed,5 the Supreme Court of Texas has not
interpreted article I, section 8 of the Texas Constitution more broadly 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.).
This case neither involves an issue of a prior restraint on free speech, nor has
appellant shown any 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)).
Under these circumstances, we overrule appellant’s second issue asserting
facial overbreadth on state constitutional grounds.
4
“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.” Tex. Const. art. I, § 8.
5
Fusselman, 621 S.W.3d at 120; see also Dehnert, 605 S.W.3d at 895-96.
9
C. Appellant’s Remaining Issue Is Unpreserved
In his third issue, appellant urges that section 43.25(b) also fails constitutional
muster because it is not a permissible regulation of unprotected speech, as one that
acceptably proscribes incitement to imminent lawless action, an offer to engage in
an illegal transaction, or speech integral to criminal conduct. Appellant did not raise
any of these challenges in his application. Accordingly, appellant’s third issue is
unpreserved. 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 third and final issue.
Conclusion
We affirm the trial court’s judgment denying appellant’s application for writ
of habeas corpus.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan (Hassan, J., concurring).
Publish — Tex. R. App. P. 47.2(b).
10