Ex parte Fairchild-Porche

638 S.W.3d 770

EX PARTE Julie Ann FAIRCHILD-PORCHE, Appellee¹

NO. 14-19-00445-CR

NO. 14-19-00446-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed November 16, 2021

Jan Michelle Mangum-Merendino, Liberty, for Appellee.

Patricia McLean, Houston, for Appellant.

Panel consists of Justices Jewell, Spain, and Wilson

OPINION

Randy Wilson, Justice

The State of Texas appeals the trial court's granting of appellee's application for pre-trial habeas-corpus relief, in which the trial court implicitly concluded that Penal Code section 21.16(b), as it existed in 2017, is unconstitutional on its face and facially overbroad in violation of the First Amendment. Interpreting section 21.16(b) as alleged in the indictment, we hold that the statute only covers the intentional disclosure of sexually explicit material by a third party when the third party (1) obtained the material under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) knew or was aware of but consciously disregarded a substantial and unjustifiable risk that the third party did not have effective consent of the depicted person; and (3) knowingly or recklessly identified the depicted person and caused that person harm through the disclosure. Properly interpreted, the statute does not violate the First Amendment. In each appeal we reverse the trial court's judgment and render judgment that the appellee's application for pre-trial habeas-corpus relief be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee Julie Ann Fairchild-Porche was charged by indictment with unlawful disclosure of intimate visual material, under the 2017 version² of Penal Code section 21.16(b) ("the Statute"), commonly known as the "revenge pornography" statute. See Act of May 26, 2015, 84th Leg., R.S., ch. 852, § 3, 2015 Tex. Sess. Law Serv. 2723, 2725 (current version codified at Penal Code § 21.16 ).

Appellee filed an application for pre-trial habeas-corpus relief, in which she asserted that the Statute is a content-based restriction of speech that violates the First Amendment and is unconstitutional on its face. Appellee also asserted that the Statute is facially overbroad in violation of the First Amendment.³ Appellee relied heavily on the Twelfth Court of Appeals's opinion in Ex parte Jones . See ––– S.W.3d ––––, ––––, 2018 WL 2228888, at *2–8 (Tex. App.—Tyler May 16, 2018), rev'd , 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (not designated for publication).

The State responded in opposition. The trial court signed an order granting the requested habeas-corpus relief, and the State timely filed a notice of appeal. Pretrial habeas-corpus proceedings are separate criminal actions that should be filed under a cause number different from the cause number of the underlying criminal prosecution.⁴ But appellee gave her application for pre-trial habeas-corpus relief the cause number from the underlying criminal prosecution, and the trial court clerk docketed the habeas proceeding together with the underlying criminal prosecution. When applicants for habeas relief and court clerks make this mistake, the habeas application is deemed to have been filed as an action separate from the underlying criminal prosecution.⁵ Thus, even though appellee's application, the trial court's order granting relief, and the State's notice of appeal from this order bore the cause number from the underlying criminal prosecution, we deem these items to have been filed in a separate criminal case.⁶

After the State filed its notice of appeal, the trial court clerk assigned a new cause number to appellee's application for pre-trial habeas-corpus relief. Acting in the separate case with the new cause number, the trial court then signed a second judgment granting habeas-corpus relief in the new case with the separate cause number. The trial court signed the second judgment more than thirty days after signing the first judgment granting habeas-corpus relief. The State timely filed a second notice of appeal from the trial court's second judgment. We do not construe the second judgment as vacating or setting aside the first ruling. Thus, these appeals involve the review of two judgments in two different cases separate from the underlying criminal prosecution in which the trial court granted the same pre-trial habeas-corpus relief.⁷ The State, as appellant, challenges the trial court's granting of this relief.

II. ISSUES AND ANALYSIS

The State argues on appeal that the Statute does not violate the First Amendment and that the Statute is not unconstitutionally overbroad. The State argues that the Statute is subject to intermediate scrutiny, but that the Statute does not violate the First Amendment even if it is subject to strict scrutiny.

Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). 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. Id. at 14–15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Id. A content-based regulation is presumptively invalid, and the government bears the burden to rebut that presumption and show that the regulation satisfies strict scrutiny. Id.

We have a duty to employ, if possible, a reasonable narrowing construction to avoid a constitutional violation, such a construction should be employed only if the statute is readily susceptible to such a construction. See State v. Johnson , 475 S.W.3d 860, 872 (Tex. Crim. App. 2015). If a statute is not readily subject to a narrowing construction, we may not rewrite the statute because such a rewriting would constitute a serious invasion of the legislative domain and would sharply diminish the Legislature's incentive to draft a narrowly tailored statute in the first place. Id. We act in accordance with our usual rules of statutory construction and construe a statute in accordance with its unambiguous language absent a finding of absurd results. Id.

The Statute, under which appellee was charged, specified that:

(b) A person commits an offense if:

(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;

(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3) the disclosure of the visual material causes harm to the depicted person; and

(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A) any accompanying or subsequent information or material related to the visual material; or

(B) information or material provided by a third party in response to the disclosure of the visual material.

Act of May 26, 2015, 84th Leg., R.S., ch. 852, § 3, 2015 Tex. Sess. Law Serv. 2723, 2725 (current version codified at Penal Code § 21.16 ). "Intimate parts" means "the naked genitals, pubic area, anus, buttocks, or female nipple of a person." Tex. Penal Code Ann. § 21.16(a)(1) (West, Westlaw through 2021 R.S.). "Sexual conduct" means "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse." Id. § 21.16(a)(3). "Visual material" includes "any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide;" or "any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method." Id. § 21.16(a)(5).

A. Should this court limit its analysis to the manner and means charged in the indictment?

Under the indictment, appellee faces an accusation under the Statute that implicates some parts of the Statute and not others. In holding the Statute facially invalid under the First Amendment, the Twelfth Court of Appeals construed parts of the Statute that were not implicated by the indictment in the present case. See Ex parte Jones , ––– S.W.3d at ––––, 2018 WL, at *5–7. Judicial restraint counsels courts against anticipating a constitutional issue before it is necessary to decide the issue or formulating a constitutional rule broader than required by the facts before the court. See United States v. Grace , 461 U.S. 171, 175, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983) (limiting review of statute's constitutionality under First Amendment to the part of the statute under which defendants were charged); Ex parte Thompson , 442 S.W.3d 325, 330, 351 (Tex. Crim. App. 2014) (construing only the part of the statute under which defendant had been charged); Ex parte Lo , 424 S.W.3d at 14 (construing only the specific subsection of the statute that the defendant alleged was unconstitutional). In addition, "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." Ex parte Usener , 391 S.W.2d 735, 736 (Tex. Crim. App. 1965). This limit helps courts avoid issuing advisory opinions. See id. ; Armstrong v. State , 805 S.W.2d 791, 794 (Tex. Crim. App. 1991). And it encourages upholding the constitutionality of statutes when reasonably possible. See Ex parte Thompson , 442 S.W.3d at 339. We conclude that we should limit our review to the parts of the Statute implicated by the indictment in this case.

The...