Ex parte Fusselman

EX PARTE LEONARD WALTON FUSSELMAN II

Nos. 09-21-00129-CR, 09-21-00130-CR, 09-21-00131-CR, 09-21-00132-CR, 09-21-00133-CR, 09-21-00134-CR, 09-21-00135-CR, 09-21-00136-CR, 09-21-00137-CR 09-21-00138-CR

Court of Appeals of Texas, Ninth District, Beaumont

May 4, 2022

Do Not Publish

Submitted on November 15, 2021

On Appeal from the 228th District Court Harris County, Texas Trial Cause Nos. 1713215, 1713216, 1713217, 1713218, 1713219 1713220, 1713221, 1713222, 1713223, 1713224

Before Golemon, C.J., Horton and Johnson, JJ.

MEMORANDUM OPINION

HOLLIS HORTON, JUSTICE

In ten pretrial writs of habeas corpus, Leonard Walton Fusselman II sought to quash the indictments he complains of in this consolidated appeal. The indictments allege that Fusselman unlawfully, intentionally, and knowingly possessed pornographic digital images of children younger than eighteen.^[1] In the applications, Fusselman argued that the statute he was charged with violating, section 43.26 of the Texas Penal Code, is facially overbroad and therefore unconstitutional because the statute regulates sexual conduct that includes conduct of those who are not children, conduct that is not lewd, and images that are not pornographic.

After the trial court conducted a brief non-evidentiary hearing on Fusselman's pretrial habeas applications, the trial court denied the applications. There is precedent directly on point from an appeal to which Fusselman was a party, an appeal decided in the Fourteenth Court of Appeals. We will refer to the opinion of our sister court as Fusselman I.^[2] In Fusselman I, the Fourteenth Court of Appeals specifically rejected the same arguments Fusselman presents here to challenge to the constitutionality of the statute he was charged with having violated. Although we addressed a facial challenge to an earlier version of the same statute Fusselman complains of in the appeals at issue, the Ninth Court of Appeals has also already rejected a facial challenge to the validity of the child pornography statute for many of the same reasons relied on by our sister court in Fusselman I.^[3] For the reasons explained below, we will affirm.

Background

In October 2017, in ten indictments, a Harris County Grand Jury charged Fusselman with possession of child pornography. The indictments allege facts charging Fusselman with violating section 43.26 of the Texas Penal Code. If convicted of violating section 43.26 under the indictments, each of Fusselman's convictions on the ten counts would be punishable as a third-degree felony.^[4] In amended applications for writs of habeas corpus, which Fusselman filed in these ten cases when they were before the trial court, Fusselman alleged that section 43.26 is unconstitutional under the Texas and United States Constitutions.^[5] Fusselman argued in the amended applications that section 43.26 is overly broad on its face because it

• Extends to seventeen-year-olds when, under Texas law, those who are seventeen or older have reached the age of consent for sex; • defines sexual conduct too broadly, as the statute defines sexual conduct to include the lewd exhibition of any portion of the female breast below the top of the areola; and

• the statute forbids possessing images of simulated sexual conduct when "there [was] no non-speech crime involved in the making of [the] images[, ]" which Fusselman concludes allows the simulated conduct depicted in the images without anything linking the simulated conduct to "any valid crime"

Fusselman filed a brief that raises his facial challenge to section 43.26 in five appellate issues. In general, Fusselman argues that section 43.26 is facially overbroad because the statute is broader than what he claims should fall within the statute's legitimate sweep. Turning to his issues, Fusselman argues in issues one and two that section 43.26 is facially overbroad under the Texas and United States Constitutions because the statute defines child pornography to include "people who are not children[, ]" meaning people who are seventeen who are old enough to consent to sex. In issue three, Fusselman argues that section 43.26 violates the First Amendment because it "punishes as child pornography images of body parts that the Supreme Court has not categorized as child pornography" In issue four, Fusselman argues that section 43.26 is facially unconstitutional under the First Amendment because it reaches the possession of child pornography that includes possessing images involving simulated rather than real sexual conduct. And last, Fusselman argues that section 43.26 is substantially overbroad when the combined effect of the overbreadth problems he identified in his first four issues is considered as a whole.

Standard of Review

Under the First Amendment, defendants may file pretrial writs of habeas corpus to challenge a statute to raise a claim that the statute is unconstitutional because on its face it is too broad.^[6] On appeal, "[w]hether a statute is facially constitutional is a question of law that we review de novo."^[7] Under the First Amendment, a court may declare a law "unconstitutional on its face, even if it might have some legitimate applications."^[8]

Even so, before a court will declare a statute is facially overbroad based on arguments over its breadth, the problems associated with the statute's reach must be "substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep."^[9] Stated another way, the statute the defendant assails as facially unconstitutional "must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on 'fanciful hypotheticals.'"^[10] On appeal, the defendant "must demonstrate from [the statute's] text and from actual fact 'that a substantial number of instances exist in which the Law cannot be applied constitutionally.'"^[11]

In analyzing a statute for overbreadth, the first step required by the analysis is for the court to examine the statute to determine what the statute covers.^[12] In construing statutes, we give effect to the plain meaning of the words used in the statute unless the language in it is ambiguous or that meaning would lead to an absurd result, a result the Legislature "could not have possibly intended."^[13] When determining the meaning of a word, we look to the word's plain meaning unless the statute defined the term.^[14] And we consider the words used in the context of the statute, presuming each word was used for a purpose so that we give each word, clause, and sentence reasonable effect, when possible.^[15] If the meaning is unclear or the plain meaning of the words would lead to an absurd result, we may consider extratextual factors, including "(1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision."^[16] If we were to determine that a statute is too broad, we must narrow the statute's construction when possible to avoid construing the statute in a way that violates the First Amendment.^[17] But a narrowing "construction should be employed only if the statute is readily susceptible" to a reasonable interpretation narrowing the statute's reach to prevent the statute from violating the First Amendment.^[18] That said, the fact that a party "can conceive of some impermissible applications of a statute is not sufficient to render [the statute] susceptible to an overbreadth challenge."^[19]

Section 43.26

As noted above, this case was transferred to us from the Fourteenth Court of Appeals. As the transferee court in these appeals, we must "decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court."^[20]

In Fusselman I, the Fourteenth Court addressed the same arguments Fusselman presents to us here. According to Fusselman, section 43.26 of the Penal Code is facially unconstitutional based on the arguments he presented in his applications. Fusselman concludes that the indictments he sought to dismiss, all based on the possession of child pornography statute, should be dismissed because the statute violates one's freedom to engage in constitutionally protected speech.^[21]

In the briefs Fusselman filed here, Fusselman simply argues the Fourteenth Court when deciding Fusselman I is wrong, but he then never explains how this Court's jurisprudence would have led to a result that is any different from the one our sister court reached in Fusselman I. In fact, had Fusselman chosen to examine the Ninth Court's jurisprudence on the validity of section 43.26, he would have discovered that over thirty years ago, we rejected a facial challenge to the constitutionality in a prior version of section 43.26, an opinion later affirmed by the Court of Criminal Appeals.^[22] To be sure, in some ways, the predecessor statute differs from that of the current statute.^[23] Even so, the reason the Ninth Court of Appeals and the Court of Criminal Appeals in Savery rejected Savery's challenge to the version of section 43.26 addressed in those opinions hinged on the rights that states have "to protect the victims of child pornography" with the hope that doing so will "destroy a market for the exploitative use of children."^[24]

While we concede differences exist between the current version of section 43.26 and the version...