Diez v. State

693 S.W.3d 899

James Logan DIEZ, Appellant

v.The STATE of Texas, Appellee

NO. 03-22-00337-CR

Court of Appeals of Texas, Austin.

Filed: June 28, 2024

FROM THE 424TH DISTRICT COURT OF BURNET COUNTY, NO. 48895, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

R. Blake Ewing, Assistant District Attorney, 33rd & 424th Judicial Districts, 1701 E. Polk St., Suite 24, Burnet, TX 78611, Tiffany Clark, 334d and 424th Judicial Districts, 1701 E. Polk Street, Suite 24, Burnet, TX 78611, Peter Keim, Assistant District Attorney, 1701 E. Polk Street, Suite 24, Burnet, TX 78611, for Appellee.

James A. Drummond, P. O. Box 451, Georgetown, TX 78627, for Appellant.

Before Chief Justice Byrne, Justices Kelly and Theofanis.

OPINION

Chari L. Kelly, Justice

A jury found James Logan Diez guilty of two counts of possession of child pornography and assessed punishment at 30 years in prison for each. See Tex. Penal Code § 43.26(a). In his appellate issues, Diez maintains that the Texas statutory scheme for his offenses is unconstitutional, either as applied to his conduct or facially; the affidavit supporting the warrant to search his home did not show probable cause; the trial court should have severed the two counts for separate trials; the court’s award to Diez of $1,500 for a cellphone forensic expert needed to be increased to $15,000; the prosecutors violated his rights under Brady v. Maryland by not performing a forensic search of one of his cellphones and by not providing him with the contacts list from his cellphone; the evidence was insufficient to support proof of "lewd exhibition" and the requisite specific intent; the court abused its discretion by admitting several exhibits; the court should have instructed the jury on mistake of fact, mistake of law, and Diez’s alleged naturism–nudism religious beliefs; the court’s order that Diez serve his sentences consecutively violates the Eighth Amendment; he was deprived of access to legal research; the court ignored his subpoena requests; and even if none of these alleged errors warrants reversal, the cumulative harm from all the alleged errors warrants reversal.¹ We affirm.

BACKGROUND

A cyber tip came to the National Center for Missing and Exploited Children (NCMEC) that an image of child pornography was uploaded to Pinterest. The tip made its way to Texas investigators, who traced the upload to Diez’s home. An officer applied for, and was granted, a warrant to search the home based in part on the officer’s affidavit description of the image at issue.

Officers searched Diez’s home and interviewed him. They recovered many items from the home, including cellphones and a CD of files that contained images of suspected child pornography. When confronted, Diez admitted that he knew that he possessed nude images of children, including child pornography, but insisted that he was collecting the unlawful images for law enforcement. Diez was later arrested and indicted for possession of child pornography, in Count I and Count II against him.

Diez represented himself during much of the pre-trial proceedings and during the trial itself. He sought pre-trial relief on many grounds, including moving to suppress the evidence obtained from the search of his home; receiving but then seeking substantially more in funds to hire a cellphone forensic expert; and challenging the constitutionality of Texas’s statutory scheme on possession of child pornography. The State at trial succeeded in having admitted into evidence not only the two indicted images of child pornography but also about 20 other images of nude children kept by Diez.

Ultimately, a jury found him guilty of possessing the two indicted images. It assessed 30-year sentences for each count, and the court ordered those sentences served consecutively. On appeal, he raises the issues previewed above.

CONSTITUTIONAL COMPLAINTS ABOUT THE STATUTORY SCHEME

Diez’s first three appellate issues are complaints under the federal constitution about Texas’s child-pornography statutory scheme, see Tex. Penal Code §§ 43.25(a)(2), 43.26(a), (b)(2), whether as applied to his conduct or on the scheme’s face. He states what we discern to be the three distinct complaints of (1) a First Amendment as-applied challenge that the two indicted images are protected speech; (2) a void-for-vagueness facial challenge based on the lack of any statutory definition of "lewd"; and (3) a First Amendment overbreadth facial challenge to the possession statute, including its incorporation of a nearby statute’s "sexual conduct" definition, specifically, the definition’s "lewd exhibition" portion.² We overrule these issues on their merits.

Applicable Law

[1, 2] As-applied constitutional challenges and facial constitutional challenges differ over "the extent to which the invalidity of the challenged law must be demonstrated and the corresponding breadth of the remedy." See Bucklew v. Precythe, 587 U.S. 119, 138, 139 S.Ct. 1112, 203 L.Ed.2d 521 (2019) (internal quotation omitted); United States v. Perez, 43 F.4th 437, 443 (5th Cir. 2022). But classifying a complaint as either as-applied or facial "does not speak at all to the substantive rule of law necessary to establish a constitutional violation." Bucklew, 587 U.S. at 138, 139 S.Ct. 1112. For Diez’s part, he draws the substantive rules for his constitutional complaints from the First Amendment’s speech protections.

[3–9] The First Amendment provides that "Congress shall make no law … abridging the freedom of speech." This Free Speech Clause protects interests whose vindication allows for an unusual kind of constitutional challenge—First Amendment overbreadth. See United States v. Hansen, 599 U.S. 762, 769–70, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023). Ordinarily, parties lack standing to assert the constitutional rights of third parties. Id. at 769, 143 S.Ct. 1932. And parties advancing facial constitutional complaints "normally must establish that no set of circumstances exists under which the [statute] would be valid." Id. (internal quotation omitted). Complaints of First Amendment overbreadth get to break these rules—the relevant doctrine "instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied." Id. Parties bringing such complaints thus may vindicate others’ rights and the broader society’s interest in hearing those others’ speech. Id. at 770, 143 S.Ct. 1932. An overbreadth complaint is thus "a second type of facial challenge." United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)); accord Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 615, 141 S.Ct. 2373, 210 L.Ed.2d 716 (2021); see also Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ("The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.").³

First Amendment as-applied challenge based on free speech

[10] Diez states his as-applied challenge this way: "The question as specifically applied to [Diez] is whether the indicted images … were properly characterized as sexual conduct when they depicted only nudity of the lower portions with the intent to stimulate a sexual response on the part of the photographer." Relatedly, he says that the indicted images were "not intended to excite sexual interest either by the photographer or by Appellant." The substantive rule of law that he relies on for this as-applied challenge is First Amendment free speech. See Bucklew, 587 U.S. at 138, 139 S.Ct. 1112 (requiring separate, substantive rule of law to support as-applied constitutional complaints). This as-applied challenge is foreclosed by the precedents from the Supreme Court of the United States that address child pornography in the context of First Amendment law and, more specifically, the place that the concept of "lewd exhibition" occupies in those precedents.

[11–13] Lewd exhibition of certain unclothed body parts is, as a matter of constitutional law, an example of two of the categories of speech that are not protected by the First Amendment. The Amendment allows "restrictions upon the content of speech in a few limited areas," which as a matter of constitutional history and tradition have been "long familiar to the bar." See Stevens, 559 U.S. at 468, 130 S.Ct. 1577. Two of these categories of unprotected speech are obscenity and child pornography. See Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity); New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (child pornography). Child pornography is not protected no matter whether the item of child pornography could meet the Miller v. California test for obscenity. Ferber, 458 U.S. at 764, 102 S.Ct. 3348.

[14, 15] Within both categories, lewd exhibition of certain unclothed body parts is a type of content that the First Amendment does not protect, if the respective category’s other requirements are met, thus raising First-Amendment-protected depictions of nudity to the level of being unprotected. See Osborne v. Ohio, 495 U.S. 108, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (stating, in child-pornography case, that "depictions of nudity, without more, constitute protected expression"). Thus, in Miller, one of the "plain examples of what a state statute could define for regulation under part [two⁴] of the" obscenity test was "[p]atently offensive representations … of masturbation, excretory functions, and lewd exhibition of the genitals." 413 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Court added that "pornography" means "a depiction … of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement." Id. at 18 n.2, 93 S.Ct. 2607 (emphasis added) (...