Opinion issued August 24, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00735-CR
———————————
EX PARTE DESTIN SPEARMAN, Appellant
On Appeal from the 482nd District Court
Harris County, Texas
Trial Court Case No. 1747440
MEMORANDUM OPINION
Appellant, Destin Spearman, 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
Appellant is charged with the felony offense of employment harmful to
children.2 A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about October 26, 2020, “unlawfully, intentionally and knowingly
employ[ed] and authorize[d] A.E.,” the complainant and “a person younger than
eighteen years of age, to work in a place of business permitting a child to work nude
and a place of business permitting a child to work topless, namely, 7320 Ashcroft,
Unit 204.”
Appellant filed a pretrial application for writ of habeas corpus, arguing that
his confinement and restraint were unlawful because Texas Penal Code section
43.251, which establishes the felony offense of employment harmful to children,
was facially unconstitutional under the First Amendment of the United States
Constitution and the Texas Constitution.3 According to appellant, section 43.251
was facially overbroad in that it “criminalizes vast amounts of previously
unregulated speech and expression, and makes it a second-degree felony, punishable
by up to twenty years in prison, for an employer in any business to ‘permit’ an
2
See Act of May 26, 2017, 85th Leg., R.S., ch. 1038, § 13, section 43.251, 2017 Tex.
Gen. Laws 4072, 4076–77 (amended 2021) (current version at TEX. PENAL CODE
ANN. § 43.251).
3
Appellant, in his pretrial application for writ of habeas corpus, made no specific
arguments under the Texas Constitution.
2
employee under the age of twenty-one to show any part of their buttocks.”
(Emphasis omitted.)
Th[at] means, in essence, that a twenty-year old woman who owns her
own pool cleaning business violates th[e] statute if she wears a bathing
suit while working a shift. The [L]egislature drafted a law that outlaws
anyone under [twenty-one] from modeling short shorts, underwear, or
bikinis unless they are paid. It criminalizes speech that has nothing to
do with any legitimate government interest and is unconstitutionally
overbroad.
Appellant also asserted that Texas Penal Code section 43.251 was “a content-based
restriction” of speech that violated the First Amendment, so it was presumed to be
unlawful. And, according to appellant, even if section 43.251 was a
“content-neutral” regulation, “the statute [was] drafted so poorly that it fail[ed] even
intermediate scrutiny.” In his pretrial application for writ of habeas corpus, appellant
relied solely on the current version of Texas Penal Code section 43.251, effective
September 1, 2021, in making his arguments.4
In its response to appellant’s pretrial application for writ of habeas corpus, the
State argued that the trial court lacked jurisdiction to consider appellant’s
4
See Act of May 30, 2021, 87th Leg., R.S., ch. 942, § 8, sec. 43.251, 2021 Tex. Gen.
Laws 2434, 2437 (eff. Sept. 1, 2021) (current version). Under the current version
of Texas Penal Code section 43.251, “[a] person commits [the offense of
employment harmful to children] if the person employs, authorizes or induces a
[person younger than twenty-one years of age] to work . . . in any place of business
permitting, requesting, or requiring a [person younger than twenty-one years of age]
to work nude or topless.” See TEX. PENAL CODE ANN. § 43.251(a), (b) (current
version).
3
constitutionality challenges to Texas Penal Code section 43.251 because a defendant
can only challenge the constitutionality of the statute under which he is actually
charged. And here, appellant, in his pretrial application for writ of habeas corpus,
challenged the current version of Texas Penal Code section 43.251, effective
September 1, 2021.5 Significantly though, appellant was charged under a previous
version of the statute because appellant allegedly committed the offense employment
harmful to children on or about October 26, 2020.6 As a result, according to the
State, the trial court did not have jurisdiction to consider appellant’s constitutionality
complaints made in his pretrial application for writ of habeas corpus.7 The State
requested that appellant’s pretrial application for writ of habeas corpus be denied.
5
See Act of May 30, 2021, 87th Leg., R.S., ch. 942, §§ 9, 11, 2021 Tex. Gen. Laws
2434, 2437 (eff. Sept. 1, 2021) (“The changes in law . . . apply only to an offense
committed on or after the effective date . . . . An offense committed before the
effective date . . . is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose.”).
6
Under the previous version of Texas Penal Code section 43.251, in effect when
appellant allegedly committed the offense, “[a] person commits [the offense of
employment harmful to children] if the person employs, authorizes or induces a
[person younger than eighteen years of age] to work . . . in any place of business
permitting, requesting, or requiring a [person younger than eighteen years of age]
to work nude or topless.” See Act of May 26, 2017, 85th Leg., R.S., ch. 1038, § 13,
section 43.251, 2017 Tex. Gen. Laws 4072, 4076–77 (amended 2021).
7
The State made additional arguments in its response to appellant’s pretrial
application for writ of habeas corpus.
4
The Texas Attorney General, in response to appellant’s pretrial application for
writ of habeas corpus, filed a motion to intervene8 and a brief in support of the
constitutionality of Texas Penal Code section 43.251. According to the Attorney
General, the trial court lacked jurisdiction to consider appellant’s challenges to the
constitutionality of Texas Penal Code section 43.251 because appellant “was
charged under the prior iteration of section 43.251,” which “criminalized the
employment of anyone under [eighteen] years of age in a sexually oriented
business.” Yet, appellant, in his pretrial application for writ of habeas corpus,
“challenge[d] the amended [version of the] statute,” which “criminalized employing
an individual under the age of [twenty-one years old] . . . in a sexually oriented
business.” The amended version of Texas Penal Code section 43.251, effective
September 1, 2021, “ha[d] no bearing on [appellant’s] case,” and the trial court “only
ha[d] jurisdiction to consider the constitutionality of the version of the statute under
which [appellant was] charged.” Because appellant’s pretrial application for writ of
habeas corpus “d[id] not challenge the proper version of [Texas Penal Code] section
43.251 . . . his [pretrial application for writ of habeas corpus] c[ould not] have any
8
See TEX. GOV’T CODE ANN. § 402.010; see also Abbott v. Mexican Am. Leg.
Caucus, Tex. House of Representatives, 647 S.W.3d 681, 697 (Tex. 2022) (Attorney
General may intervene in suit where constitutionality of state statute is challenged).
5
bearing on the outcome of his criminal prosecution.” The Attorney General
requested that appellant’s pretrial application for writ of habeas corpus be denied.9
In his reply, appellant acknowledged that “the version of [Texas Penal Code
section 43.251 in effect] at the time of [the commission of] his alleged offense was
different than the current” version of section 43.251 in effect when he filed his
pretrial application for writ of habeas corpus. And he did not dispute that he
challenged the constitutionality of the current version of Texas Penal Code section
43.251 in his pretrial application for writ of habeas corpus. Instead, appellant
asserted that the State was incorrect “to say that [a defendant] c[ould] only contest
the parts of a statute that [he was] charged under.” Appellant did not file an amended
pretrial application for writ of habeas corpus challenging the version of Texas Penal
Code section 43.251 that was in effect when he allegedly committed the offense of
employment harmful to children on or about October 26, 2020.
The trial court denied appellant’s pretrial application for writ of habeas
corpus.
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). Unless double jeopardy is involved,
9
The Attorney General made additional arguments in his motion to intervene and
brief in support of the constitutionality of Texas Penal Code section 43.251.
6
pretrial habeas is not available unless the question presented, if resolved in the
defendant’s favor, would result in his immediate release from custody. Id. at 891–
92.
A defendant may seek a pretrial writ of habeas corpus to challenge the facial
constitutionality of a statute, i.e., to attack the validity of the statute itself. See
Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Whether a statute is
facially constitutional is a question of law that we review de novo. Salinas v. State,
464 S.W.3d 363, 366 (Tex. Crim. App. 2015). When the constitutionality of a statute
is attacked, we usually begin with the presumption that the statute is valid and that
the Legislature has not acted unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d
10, 14–15 (Tex. Crim. App. 2013). Ordinarily, the burden rests upon the party
challenging the statute to establish its unconstitutionality. Id. at 15. However, when
the State seeks to impose punishment for content-based speech, we reverse these
standards: content-based regulations are presumptively invalid, and the State bears
the burden to rebut that presumption. Id. at 15.
Jurisdiction
In his sole issue, appellant argues that the trial court erred in denying him
habeas relief because the previous version of Texas Penal Code section 43.251,
under which appellant was charged, is facially unconstitutional. Appellant asserts
7
that it constitutes a “content-based restriction” that “does not survive strict
scrutiny.”10 (Emphasis omitted.)
As an initial matter, we first must address the trial court’s jurisdiction over
appellant’s challenge to the constitutionality of Texas Penal Code section 43.251
raised in his pretrial application for writ of habeas corpus. See Ex parte Waggoner,
61 S.W.3d 429, 431 (Tex. Crim. App. 2001); Ex parte Duckens, No.
14-21-00575-CR, 2022 WL 4962186, at *2 (Tex. App.—Houston [14th Dist.] Oct.
4, 2022, no pet.) (mem. op., not designated for publication).
To attack the facial constitutionality of a penal statute, a defendant must show
that the challenged statute is “being invoked against him,” meaning that the
defendant was convicted or charged under the portion of the statute “the
constitutionality of which he questions.” Ex parte Ingram, 533 S.W.3d at 892–93;
10
Although appellant uses the term “overbreadth” in his briefing, he does not actually
raise a challenge under the First Amendment’s overbreadth doctrine nor provide any
analysis or authority to support such a challenge. See TEX. R. APP. P. 38.1(i); R.A.V.
v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992) (contrasting technical
“overbreadth” claim—that statute violated rights of too many third parties—with
claim that statute restricted more speech than constitutionally permitted because it
was content based); Martinez v. State, 323 S.W.3d 493, 498 (Tex. Crim. App. 2010)
(explaining defendant’s complaint that statute improperly restricted his right to free
speech was improperly labeled as “[an] overbreadth claim” and noting defendant
“was not mounting a classic overbreadth claim as it [was] understood in its legal
and technical nomenclature”); Ex parte Fairchild-Porche, 638 S.W.3d 770, 778–93
(Tex. App.—Houston [14th Dist.] 2021, no pet.) (analyzing assertion statute facially
overbroad in violation of First Amendment separately from assertion statute
constituted “a content-based restriction of speech that violate[d] the First
Amendment” and could not survive strict scrutiny).
8
State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011) (internal
quotations omitted); see also Ex parte Usener, 391 S.W.2d 735, 736 (Tex. Crim.
App. 1965) (“[I]t is incumbent upon an accused to show that he was convicted or
charged under the portion of the statute the constitutionality of which he
questions.”); Ex parte Duckens, 2022 WL 4962186, at *2. A defendant generally
lacks standing to challenge the constitutionality of a statute under which he has not
been charged. See Fine, 330 S.W.3d at 909; Ex parte Duckens, 2022 WL 4962186,
at *2.
Although in his briefing in this Court appellant “challenges the [previous]
version of [s]ection 43.251(b)(1) that applies to the allegation against him and not
the current version that took effect [on] Sept[ember] 1, 2021,” appellant, in his
pretrial application for writ of habeas corpus filed in the trial court, did not challenge
the previous version of Texas Penal Code section 43.251 in effect when he allegedly
committed the offense of employment harmful to children on or about October 26,
2020.11 Instead, appellant solely challenged the current version of Texas Penal Code
11
Under the previous version of Texas Penal Code section 43.251(b)(2), in effect
when appellant allegedly committed the offense, “[a] person commits [the offense
of employment harmful to children] if the person employs, authorizes or induces a
[person younger than eighteen years of age] to work . . . in any place of business
permitting, requesting, or requiring a [person younger than eighteen years of age]
to work nude or topless.” See Act of May 26, 2017, 85th Leg., R.S., ch. 1038, § 13,
section 43.251, 2017 Tex. Gen. Laws 4072, 4076–77 (amended 2021).
9
section 43.251,12 under which appellant is not charged, arguing that it was facially
unconstitutional.13 Because appellant is unable to show that the current version of
section 43.251, which he challenged in his pretrial application for writ of habeas
corpus, has been invoked against him, the trial court lacked jurisdiction to consider
his facial challenge to the constitutionality of that version of the statute. See, e.g.,
State v. Scott, 460 S.W.2d 103, 107 (Tex. 1970) (“[O]nly a person charged with
[d]istribution of obscene materials [w]ith constructive knowledge of their obscene
character may question the validly of [the statute] on the grounds set out in
defendants’ motion . . . . The defendants in this case were not so charged.”); Ex
parte Duckens, 2022 WL 4962186, at *2; Ex parte Fairchild-Porche, 638 S.W.3d
770, 778 n.2 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (noting Legislature
had amended Texas Penal Code section but amended provision did not apply to
defendant’s case because offense allegedly committed before effective date); Hinds
12
Under the current version of Texas Penal Code section 43.251(b)(2), “[a] person
commits [the offense of employment harmful to children] if the person employs,
authorizes or induces a [person younger than twenty-one years of age] to work . . . in
any place of business permitting, requesting, or requiring a [person younger than
twenty-one years of age] to work nude or topless.” See TEX. PENAL CODE ANN.
§ 43.251(a), (b) (current version).
13
We also note that appellant’s constitutional challenges raised in the trial court in his
pretrial application for writ of habeas corpus do not comport with his sole issue on
appeal in that his pretrial application challenges the constitutionality of a different
version of Texas Penal Code 43.251 than his appellant’s brief does. See TEX. R.
APP. P. 33.1; Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005,
pet. ref’d) (issue on appeal must track arguments made in trial court).
10
v. State, No. 03-19-00500-CR, 2021 WL 2834717, at *2–3 (Tex. App.—Austin July
8, 2021, pet. ref’d) (mem. op., not designated for publication) (defendant could not
challenge constitutionality of statute under which he was not convicted); State v.
Stubbs, 502 S.W.3d 218, 223 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(trial court lacked jurisdiction to declare entire statute unconstitutional when
defendant was only indicted under subsection (a) of statute); Ex parte Maddison,
518 S.W.3d 630, 635 (Tex. App.—Waco 2017, pet. ref’d) (same); Mouton v. State,
627 S.W.2d 765, 767–68 (Tex. App.—Houston [1st Dist.] 1981, no pet.) (where
statute had no applicability to case, court could not address issue of constitutionality
and defendant could not raise constitutionality complaint). This is because even a
favorable resolution to the constitutional complaints raised in appellant’s pretrial
application for writ of habeas corpus would not deprive the trial court of the power
to proceed on appellant’s current charge or result in appellant’s immediate release
and addressing the merits of appellant’s constitutional challenges would result in a
prohibited advisory opinion. See Ex parte Ingram, 533 S.W.3d at 891–92; Ex parte
Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (explaining, 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 Duckens, 2022 WL 4962186, at *2; see also Salinas,
464 S.W.3d at 366 (it is well-settled that statute’s constitutionality should not be
11
determined in any case unless that determination is “absolutely necessary to decide
the case in which the issue is raised” (internal quotations omitted)); Ex parte Usener,
391 S.W.2d at 736; Williams v. State, No. 01-15-00629-CR, 2016 WL 4055427, at
*2–3 (Tex. App.—Houston [1st Dist.] July 28, 2016, pet. ref’d) (mem. op., not
designated for publication) (“When challenging the constitutionality of a statute, it
is incumbent upon an accused to show that he was convicted or charged under that
portion of the statute the constitutionality of which he questions. Without this
showing, any constitutional determination would be a prohibited declaratory
judgment. This [C]ourt does not determine the constitutionality of a statute unless
such a determination is absolutely necessary to decide the case in which the issue is
raised.” (internal citations and quotations omitted)).
Based on the foregoing, we hold that the trial court did not err in denying
appellant’s pretrial application for writ of habeas corpus.
We overrule appellant’s sole issue.
12
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
13