Nos CR & CR In the Court of Appeals For the First District of Texas At Houston

Nos. 01-17-00661-CR & 01-17-00662-CR In the Court of Appeals For the First District of Texas At Houston Nos. 2125133 & 2150264 In County Criminal Court at Law No. 16 Of Harris County, Texas STATE OF TEXAS Appellant V. CARLOS MORA Appellee EX PARTE CARLOS MORA STATE S APPELLATE BRIEF FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/7/2017 2:21:29 PM CHRISTOPHER A. PRINE Clerk KIM OGG District Attorney Harris County, Texas PATRICIA MCLEAN Assistant District Attorney Harris County, Texas mclean_patricia@dao.hctx.net ASHLEY HARKNESS Assistant District Attorney Harris County, Texas 1310 Prairie, 5th floor Houston, Texas 77002 Counsel for Appellant ACCEPTED 01-17-00662-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/7/2017 2:21 PM CHRISTOPHER PRINE CLERK ORAL ARGUMENT REQUESTED

STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX. R. APP. P. 39.1, the State requests oral argument because oral argument could significantly aid this Court in evaluating the constitutionality of a recently enacted Texas statute. i

IDENTIFICATION OF THE PARTIES Counsel for the State: Kim Ogg District Attorney of Harris County Patricia McLean Assistant District Attorney on appeal Ashley Harkness Assistant District Attorney at trial level Cheuck Yee Assistant District Attorney at trial level Diego Esparza Assistant District Attorney at trial level Appellant: Carlos Mora Counsel for Appellant: Tom Abbate Defense counsel at trial level and on appeal Mark Bennett Defense counsel at trial level and on appeal Trial Judge: Honorable Darrel Jordan ii

TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT... i IDENTIFICATION OF THE PARTIES... ii INDEX OF AUTHORITIES... v STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 THE TRIAL COURT ERRED IN GRANTING APPELLEE S MOTION TO QUASH THE INFORMATION AND APPLICATION FOR WRIT OF HABEAS CORPUS... 4 I. Applicable Law and Standard of Review... 4 II. Section 21.16(b) regulates only conduct that is not subject to First Amendment protection.... 6 III. Even if the conduct proscribed by Section 21.16(b) is considered to be expressive, it is not protected under the First Amendment.... 7 IV. If this Court finds the conduct prohibited by Section 21.16(b) implicates the First Amendment, the statute withstands intermediate scrutiny.... 11 V. Even if this Court considers Section 21.16(b) to be a content-based restriction on protected speech, the statute withstands strict scrutiny.13 VI. Section 21.16(b) is not overbroad because it does not implicate the First Amendment at all and, alternatively, the statute s elements and affirmative defenses limit its applicability....16 VII. Section 21.16(b) is not vague because it is written in a manner that provides clear notice of prohibited conduct and prevents arbitrary or discriminatory enforcement....19 iii

CONCLUSION... 22 CERTIFICATE OF SERVICE... 23 CERTIFICATE OF COMPLIANCE... 23 iv

INDEX OF AUTHORITIES CASES Cohen v. California, 403 U.S. 15 (1971)... 8 Engelking v. State, 750 S.W.2d 213 (Tex. Crim. App. 1988)...20 Ex parte Flores, 483 S.W.3d 632 (Tex. App. Houston [14th Dist.] 2015, pet. ref d)...20 Ex parte Fujisaka, 472 S.W.3d 792 (Tex. App. Dallas 2015, pet. ref d)... 6 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)... 4, 5, 14, 17 Ex parte Taylor, No. 03-16-00689-CR, 2017 WL 4898989 (Tex. App. Austin Oct. 26, 2017, no pet. h.) (mem. op., not designated for publication)... 5 Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)... 5, 6, 11, 12, 14, 16, 17, 18 Ex parte Wheeler, 478 S.W.3d 89 (Tex. App. Houston [1st Dist.] 2015, pet. ref d)...13 Horhn v. State, 481 S.W.3d 363 (Tex. App. Houston [1st Dist.] 2015, pet. ref d), cert. denied, 137 S.Ct. 378 (2016)...9, 17 Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007)... 5 Patel v. Hussain, 485 S.W.3d 153 (Tex. App. Houston [14th Dist.] 2016, no pet.)...10 People v. Iniguez, 202 Cal. Rptr. 3d 237 (Cal. App. Dep t Super Ct. 2016)... 19, 21 Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999)...20 Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010)... 8 v

State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006)... 19, 20, 21 State v. Stubbs, 502 S.W.3d 218 (Tex. App. Houston [14th Dist.] 2016, pet. ref d) 13, 17, 19, 21 Texas v. Johnson, 491 U.S. 397 (1989)...6, 12 United States v. O Brien, 391 U.S. 367 (1968)... 11, 12 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)... 17, 19, 20 Ward v. Rock Against Racism, 491 U.S. 781 (1989)...12 Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)... 8 STATUTES 18 PA. STAT. AND CONS. STAT. ANN. 3131 (West 2017)...10 720 ILL. COMP. STAT. ANN. 5/11-23.5 (West 2017)...10 ARIZ. REV. STAT. ANN. 13-1425 (West 2017)...10 CAL. PENAL CODE 647 (West 2017)... 10, 19 COLO. REV. STAT. ANN. 18-7-107 (West 2017)...10 DEL. CODE ANN. tit. 11, 1335 (West 2017)...10 GA. CODE ANN. 16-11-90 (West 2017)...10 HAW. REV. STAT. ANN. 711-1110.9 (West 2017)...10 LA. STAT. ANN. 283.2 (West 2017)...10 MD. CODE ANN. CRIM. LAW 3-809 (West 2017)...10 ME. REV. STAT. ANN. tit. 17-A, 511-A (West 2017)...10 N.C. GEN. STAT. ANN. 14-190.5A (West 2015)...10 N.D. CENT. CODE ANN. 12.1-17-07.2 (West 2017)...10 N.M. STAT. ANN. 30-37A-1 (West 2017)...10 vi

TEX. GOV T CODE 311.031... 3 TEX. PENAL CODE 42.07... 8 TEX. PENAL CODE ANN. 21.15 (West 2013)...16 TEX. PENAL CODE ANN. 21.16 (West 2015)... 2 TEX. PENAL CODE ANN. 21.16 (West 2017)... 1, 2, 7, 12, 15, 16, 18, 20, 21 TEX. PENAL CODE ANN. at 21.15 (West 2015)...16 UtAH CoDE ANN. 76-5b-203 (West 2017)...10 VT. STAT. ANN. tit. 13, 2606 (West 2017)...10 W. VA. CODE ANN. 61-8-28a (West 2017)...10 WASH. REV. CODE ANN. 9A.86.010 (West 2017)...10 RULES TEX. R. APP. P. 39.1... i OTHER AUTHORITIES Act of May 22, 2017, 85th Leg. R.S., ch. 858 (H.B. 2552), 16(b), eff. Sept. 1, 2017... 3 Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg. R.S. (July 2, 2015)... 9, 14, 15 MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/disclose (last visited November 7, 2017)...21 vii

TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE Appellee was charged by information with unlawful disclosure of intimate visual material. (CRI 7) 1 See TEX. PENAL CODE ANN. 21.16(b) (West 2017). Appellee filed a motion to quash the information along with an application for a writ of habeas corpus, both of which alleged that the statute under which appellee was charged is unconstitutional. (CRI 21-31) The trial court granted appellee s motion to quash and the writ application. (CRI 55, 60) The State timely filed notice of appeal. (CRI 66-71) STATEMENT OF FACTS According to the probable cause information included in the complaint, the complainant is appellee s ex-girlfriend. (CRI 5) On November 14, 2016, the complainant discovered that appellee had posted a picture on his Snapchat social media page of a bare vagina with the caption HAPPY THANKSGIVING #[complainant s first and last name]. (CRI 5) The complainant knew the photograph was of her vagina because she provided the photograph to appellee when they lived together. (CRI 5) The complainant requested multiple times for appellee to remove the photograph, but appellee refused to do so. (CRI 5) 1 CRI refers to the clerk s record for cause number 2125133. CRII refers to the clerk s record for cause number 2150264.

Pasadena City Police Department Officer MacGregor spoke to appellee by telephone. (CRI 5-6) Appellee admitted to Officer MacGregor that he posted the photograph of the complainant s vagina on his Snapchat account without the complainant s consent in retaliation for her statements regarding their previous relationship. (CRI 6) Appellee was charged under Texas Penal Code, Section 21.16(b), which states that 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. TEX. PENAL CODE ANN. 21.16(b) (West 2017) 2. 2 Originally, this offense was a Class A misdemeanor. TEX. PENAL CODE ANN. 21.16(g) (West 2015). After appellee was charged with this offense, the statute was amended to designate the offense as a state-jail felony. (CRI 7) Id. at 21.16(g) (West 2017);. However, this change should not affect this appeal because it does not appear to be 2

(CRI 7) The information alleged that appellee: unlawfully without the effective consent of... [the Complainant], intentionally disclose[d] visual material, namely, A PHOTOGRAPH, which depicted the Complainant with the Complainant s naked genitals exposed, and said visual material was obtained by the Defendant under circumstances in which the Complainant had a reasonable expectation that said visual material would remain private, and the disclosure of said visual material caused harm to the Complainant, namely by CAUSING PUBLIC EMBARRASSMENT, and the disclosure of said visual material revealed the identity of the Complainant, namely by DEFENDANT POSTED COMPLAINANT S NAME ABOVE THE PHOTOGRAPH. Appellee complained in his motion to quash and writ application that Section 21.16(b) is unconstitutional under the United States Constitution, and is overbroad and vague under the First Amendment. (CRI 22) SUMMARY OF THE ARGUMENT Because Section 21.16(b) prohibits only the conduct of disclosing visual materials, the statute does not implicate the First Amendment. Even if the conduct prohibited by Section 21.16(b) is considered to be expressive, it is not protected by the First Amendment because the conduct invades the substantial privacy interests of another in an intolerable manner. retroactive. See TEX. GOV T CODE 311.031; Act of May 22, 2017, 85th Leg. R.S., ch. 858 (H.B. 2552), 16(b), eff. Sept. 1, 2017. 3

If this Court finds that the conduct prohibited by Section 21.16(b) implicates the First Amendment, the statute survives intermediate scrutiny because the statute furthers the important state interest of preserving the privacy of its citizens, the government s interest is unrelated to the suppression of free expression, and incidental restrictions on First Amendment freedoms are no greater than essential to the furtherance of the state interest. Alternatively, if this Court considers Section 21.16(b) to be a content-based regulation of protected speech, the statute withstands strict scrutiny because it is narrowly tailored and necessary to achieve the compelling state interest of protecting the substantial privacy interest of individuals from invasion in an intolerable manner. Additionally, the statute is clear as to what conduct is prohibited and does not reach a substantial amount of protected speech. Therefore, the statute is neither vague nor overbroad. THE TRIAL COURT ERRED IN GRANTING APPELLEE S MOTION TO QUASH THE INFORMATION AND APPLICATION FOR WRIT OF HABEAS CORPUS I. Applicable Law and Standard of Review When a defendant attacks a statute s constitutionality, appellate courts 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). The burden normally rests upon the person challenging the 4

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. Content-based restrictions are presumptively invalid and the government bears the burden to rebut that presumption. Id. A defendant may raise a facial challenge to the constitutionality of a statute that defines the offense charged with a pre-trial application for a writ of habeas corpus. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); compare with Ex parte Taylor, No. 03-16-00689-CR, 2017 WL 4898989, at *5 (Tex. App. Austin Oct. 26, 2017, no pet. h.) (mem. op., not designated for publication) (defendant s facial challenge to Texas Penal Code Section 21.16(c) was not cognizable on a pre-trial application for writ of habeas corpus because he was not prosecuted under Section 21.16). An appellate court reviews de novo a trial court s decision to deny a motion to quash a charging instrument. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Appellate courts also review de novo the issue of whether a statute is facially constitutional because it is a question of law. Lo, 424 S.W.3d at 14. 4 4 The trial court entered findings of fact and conclusions of law. (CRI 57-59) 5

II. Section 21.16(b) regulates only conduct that is not subject to First Amendment protection. The Court of Criminal Appeals has stated that photographs and visual recordings are inherently expressive. Thompson, 442 S.W.3d at 334, 336 (examining constitutionality of improper-photography statute s prohibition of taking photographs and recording visual images). 5 However, a statute that regulates only conduct, not speech or any other expressive activity protected by free-speech guarantees, does not trigger any protection under the First Amendment. Ex parte Fujisaka, 472 S.W.3d 792, 796 (Tex. App. Dallas 2015, pet. ref d). The mere occurrence of some verbal expression in connection with one s conduct does not trigger First Amendment speech protections. Id. at 797. In determining whether particular conduct possesses sufficient communicative elements to implicate the First Amendment, courts should consider if an intent to convey a particularized message was present, and whether the likelihood was great that those who viewed the message would have understood it. See Texas v. Johnson, 491 U.S. 397, 404-406 (1989). Section 21.16(b) does not prohibit the creation of explicit visual materials. Compare with Thompson, 442 S.W.3d at 337 (concluding that a person s purposeful creation of photographs and visual recordings is entitled to the same 5 The Thompson Court did not address the constitutionality of the portion of the statute that proscribes the broadcast or transmission of visual images. Id. at 330 n.3. 6

First Amendment protection as the photographs and visual recordings themselves). The statute does not prohibit disclosure of visual materials: 1) in the course of lawful and common law-enforcement practice or medical treatment, 2) to report unlawful activity, or 3) in legal proceedings where disclosure is permitted or required by law. TEX. PENAL CODE ANN. 21.16(f)(1) (West 2017). Nor does the statute prohibit disclosure or promotion of visual material depicting, in a public or commercial setting, voluntary exposure of intimate parts or sexual conduct. Id. at 21.16(f)(2). Section 21.16(b) prohibits only the intentional, harmful conduct of disclosing private photographs and recordings that show a person s intimate parts or sexual conduct, and identifying the depicted person. Such conduct does not indicate an intent to convey a particular message or a great likelihood that anyone who views the disclosed materials would understand any message. Because Section 21.16(b) proscribes only conduct that does not involve expression of thoughts or ideas, the proscribed conduct is not protected under the First Amendment. III. Even if the conduct proscribed by Section 21.16(b) is considered to be expressive, it is not protected under the First Amendment. The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner. Scott v. State, 7

322 S.W.3d 662, 668 (Tex. Crim. App. 2010), abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014); see Cohen v. California, 403 U.S. 15, 21 (1971) ( The ability of the government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner ). In Scott, the Court of Criminal Appeals examined a facial challenge to a portion of the harassment statute. 322 S.W.3d at 665-67; see TEX. PENAL CODE 42.07. The Court found the at-issue subsection did not implicate the free-speech guarantee of the First Amendment. Scott, 322 S.W.3d at 669. The Court stated that, in the usual case, a person whose conduct violates the statute will not have an intent to engage in the legitimate communication of ideas, opinions, or information; they will only have the intent to inflict emotional distress for its own sake. Id. at 670. Therefore, [t]o the extent that the statutory subsection is susceptible of application to communicative conduct, it is susceptible of such application only when that communicative conduct is not protected by the First Amendment because, under the circumstances presented, that communicative conduct invades the substantial privacy interests of another (the victim) in an essentially intolerable manner. Id. 8

Similar to Scott, this Court concluded in Horhn v. State that the fraudulentuse-of-identifying-information statute did not implicate the First Amendment. 481 S.W.3d 363, 375 (Tex. App. Houston [1st Dist.] 2015, pet. ref d), cert. denied, 137 S.Ct. 378 (2016). Among other things, this Court found that, to the extent the statute could apply to communicative conduct, it applied to such conduct only when that conduct is not protected by the First Amendment because using a person s identifying information, without permission and with intent to harm or defraud, invades the person s substantial privacy interests in an essentially intolerable manner. Id. at 375. Individuals have a substantial interest in maintaining the privacy of personal, explicit photographs and recordings in which they are the subjects. The intentional, non-consensual, and harmful disclosure of those visual materials which were reasonably expected to remain private along with the revelation of the depicted person s identity invades this substantial privacy interest in an intolerable manner. See Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg. R.S. (July 2, 2015) 6 ; see also Patel v. Hussain, 485 S.W.3d 153, 182-83 6 In recent years, there has been a disturbing Internet trend of sexually explicit images disclosed without the consent of the depicted person, resulting in immediate and in many cases, irreversible harm to the victim. Victims' images are often posted with identifying information such as name, contact information, and links to their social media profiles. The victims are frequently threatened with sexual assault, harassed, stalked, fired from jobs, and forced to change schools. Some victims have even committed suicide. In many instances, the images are disclosed by a former spouse or partner who is seeking revenge. This practice has been commonly referred to as "revenge pornography" by the media. To add insult to injury, 9

(Tex. App. Houston [14th Dist.] 2016, no pet.) (in revenge-pornography civil case, referring to the notion that pornography shared on the internet can exist forever and circulate indefinitely). Notably, several other states have also worked to protect this substantial interest by creating laws similar to Section 21.16(b). See ARIZ. REV. STAT. ANN. 13-1425 (West 2017); CAL. PENAL CODE 647(j)(4) (West 2017); COLO. REV. STAT. ANN. 18-7-107 (West 2017); DEL. CODE ANN. tit. 11, 1335 (a)(9) (West 2017); GA. CODE ANN. 16-11-90 (West 2017); HAW. REV. STAT. ANN. 711-1110.9 (1)(b) (West 2017); 720 ILL. COMP. STAT. ANN. 5/11-23.5 (West 2017); LA. STAT. ANN. 283.2 (West 2017); ME. REV. STAT. ANN. tit. 17-A, 511-A (West 2017); MD. CODE ANN. CRIM. LAW 3-809 (West 2017); N.M. STAT. ANN. 30-37A-1 (West 2017); N.C. GEN. STAT. ANN. 14-190.5A (West 2015); N.D. CENT. CODE ANN. 12.1-17-07.2 (West 2017); 18 PA. STAT. AND CONS. STAT. ANN. 3131 (West 2017); UtAH CoDE ANN. 76-5b-203 (West 2017); VT. STAT. ANN. tit. 13, 2606 (West 2017); WASH. REV. CODE ANN. 9A.86.010 (West 2017); W. VA. CODE ANN. 61-8-28a (West 2017). Therefore, even if this Court determines that conduct prohibited by Section 21.16(b) is communicative, said conduct is not protected under the First revenge porn websites are further preying on victims by charging fees to remove the sexually explicit images from the internet. S.B. 1135 preserves relationship privacy by providing victims both civil and criminal remedies when these intimate images are disclosed in a nonconsensual manner and cause harm to the depicted person. 10

Amendment because it invades the substantial privacy interests of the depicted person in an intolerable manner. See Thompson, 442 S.W.3d at 348 (agreeing that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place or with respect to an area of the person that is not exposed to the general public). IV. If this Court finds the conduct prohibited by Section 21.16(b) implicates the First Amendment, the statute withstands intermediate scrutiny. In the First Amendment context, there are two levels of scrutiny: strict scrutiny and intermediate scrutiny. Thompson, 442 S.W.3d at 344. Regarding intermediate scrutiny, cases involving expressive conduct conduct that is not inherently expressive but can be expressive on the facts of a given case are subject to the O Brien test. Id.; see United States v. O Brien, 391 U.S. 367, 376-77 (1968) (when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms). The O Brien test requires that: 1) the regulation furthers an important or substantial government interest, 2) the government interest is unrelated to the suppression of free expression, and 3) incidental restrictions on First Amendment freedoms are no 11

greater than essential to the furtherance of the government interest. Thompson, 442 S.W.3d at 344; O Brien, 391 U.S. at 377. 7 The State has an important interest in protecting the substantial privacy interests of its citizens from violation by non-consensual, harmful, identityrevealing disclosure of explicit photographs and recordings which were reasonably expected to remain private. See Thompson, 442 S.W.3d at 348. This interest is unrelated to the suppression of free expression. Rather, its purpose is to protect the privacy of some of the most personal photographs and recordings a person can create or possess. Section 21.16(b) furthers this substantial interest by prohibiting only the conduct of disclosing such materials without consent and revealing the depicted person s identity. TEX. PENAL CODE ANN. 21.16(b) (West 2017). If Section 21.16(b) causes incidental restriction on First Amendment freedom at all, it is no greater than that which is necessary to further the State s substantial interest. See O Brien, 391 U.S. at 381-82 (statute prohibiting destruction of Selective Service registration certificates condemned only independent non-communicative impact of conduct within its reach). 7 Another intermediate-scrutiny test requires that regulations on time, place, or manner of expression: 1) are content neutral, 2) serve a significant government interest, 3) are narrowly tailored, and 4) leave open ample alternative channels of communication. Thompson, 442 S.W.3d at 344 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). This test can apply to pure speech or inherently expressive conduct and is similar to the O Brien test. Thompson, 442 S.W.3d at 344-45. Because the conduct at issue in Section 21.16(b) is not pure speech or inherently expressive (or, if the at-issue conduct is expressive, because Section 21.16(b) is not related to expression), the O Brien test should be applied if this Court finds the statute implicates the First Amendment. See Johnson, 491 U.S. at 403. 12

Therefore, if this Court finds Section 21.16(b) implicates the First Amendment, the statute withstands intermediate scrutiny. V. Even if this Court considers Section 21.16(b) to be a content-based restriction on protected speech, the statute withstands strict scrutiny. For the reasons stated above, this Court should presume Section 21.16(b) is a valid statute and place the burden of demonstrating unconstitutionality upon appellee. See Ex parte Wheeler, 478 S.W.3d 89, 94 (Tex. App. Houston [1st Dist.] 2015, pet. ref d) (concluding that, because Texas Penal Code Section 33.021(c), regarding online solicitation of a minor, regulates conduct and unprotected speech, the statute must be presumed valid). However, if this Court finds that Section 21.16(b) is a content-based restriction on protected speech, the statute is necessary to serve, and is the least restrictive means to achieve, a compelling state interest. Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed. State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App. Houston [14th Dist.] 2016, pet. ref d). Content-based regulations operate to restrict particular viewpoints of public discussion of an entire topic or subject matter. Id. Where a statute is a content-based restriction of speech, the usual presumption of constitutionality is reversed; the content-based statute is presumed to be invalid, and the State has the burden to rebut the presumption. Id. 13

The Supreme Court applies the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Lo, 424 S.W.3d at 15. To satisfy strict scrutiny, a law that regulates speech must be: 1) necessary to serve, 2) a compelling state interest, and 3) narrowly drawn. Id. A law is narrowly drawn if it employs the least restrictive means to achieve its goal and if there is a close nexus between a compelling state interest and the restriction. Id. If a less restrictive means of meeting the compelling interest could be as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law does not satisfy the strict scrutiny standard. Id. at 15-16. Privacy is a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner. See Thompson, 442 S.W.3d at 348. A person s interest in explicit photographs and recordings which depict him, and are reasonably expected to remain private, is a compelling one. See id. The intentional disclosure of such materials, which occurs without consent, reveals the depicted person s identity, and causes him harm, invades the depicted person s privacy in an intolerable manner. This practice of revenge pornography results in immediate and in many cases, irreversible harm to the victim. Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg. R.S. (July 2, 2015). Victims of revenge pornography are frequently threatened with sexual assault, 14

harassed, stalked, fired from jobs, [ ] forced to change schools[, and s]ome victims have even committed suicide. Id. Therefore, the State has a compelling interest in preserving the privacy of individuals depicted in the types of materials subject to Section 21.16(b). Section 21.16(b) is necessary to halt the disturbing practice of revenge pornography and prevent the devastating harm discussed above. See id. The statute is also narrowly tailored to achieve the State s compelling interest. The statute permits disclosure of visual materials where the depicted person: 1) consents to the disclosure, 2) is not engaged in sexual conduct and his intimate parts are not exposed, 3) had no reasonable expectation that the visual material would remain private, or 4) does not have his identity revealed in any manner. TEX. PENAL CODE ANN. 21.16(b) (West 2017). Section 21.16(b) also permits unintentional disclosure of visual materials. Id. Affirmative defenses to prosecution under Section 21.16(b) include disclosure of visual materials that occurs in the course of: 1) lawful and common law-enforcement practice or medical treatment; 2) reporting unlawful activity; or 3) legal proceedings, if the disclosure is permitted or required by law. Id. at 21.16(f)(1). It is also an affirmative defense that the disclosure consists of visual material that depicts, in a public or commercial setting, only voluntary exposure of intimate parts or sexual conduct. Id. at 21.16(f)(2). Finally, it is an affirmative 15

defense to prosecution under Section 21.16(b) that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consists of visual material provided by another person. Id. at 21.16(f)(3). As a result, Section 21.16(b) is the least restrictive means to achieve the State s compelling interest of protecting the privacy of individuals depicted in the at-issue visual materials. Compare with Thompson, 442 S.W.3d at 348-49 (holding that subsection of former improper-photography statute failed to satisfy strict scrutiny because its language showed it was designed as a catch-all, to reach other situations in which photography and visual recordings ought to be prohibited ). 8 Therefore, even if Section 21.16(b) is considered to be a content-based regulation of protected expression, the statute withstands strict scrutiny analysis. VI. Section 21.16(b) is not overbroad because it does not implicate the First Amendment at all and, alternatively, the statute s elements and affirmative defenses limit its applicability. In a facial challenge to the overbreadth and vagueness of a law, this Court must first determine whether the enactment reaches a substantial amount of 8 Under the former improper-photography statute, A person commits an offense if the person: 1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room (A) without the other person s consent; and (B) with intent to arouse or gratify the sexual desire of any person. TEX. PENAL CODE ANN. 21.15(b)(1) (West 2013). The statute has since been changed to read similarly to Section 21.16(b). See id. at 21.15(b)(1) (West 2015) ( A person commits an offense if, without the other person s consent and with intent to invade the privacy of the other person, the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the person has a reasonable expectation that the intimate area is not subject to public view ). 16

constitutionally protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). If it does not, then the overbreadth challenge fails. Id. To be held unconstitutional under the overbreadth doctrine, a statute must prohibit a substantial amount of protected expression. Thompson, 442 S.W.3d at 349; see Lo, 424 S.W.3d at 18 (a statute is facially invalid if it prohibits a substantial amount of protected speech judged in relation to the statute s plainly legitimate sweep ). The State may not justify restrictions on constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech. Lo, 424 S.W.3d at 18. A statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. Stubbs, 502 S.W.3d at 232. Because Section 21.16(b) does not implicate the First Amendment at all, appellee s overbreadth challenge fails. See Horhn, 481 S.W.3d at 376 (because statute did not implicate the First Amendment, it did not reach a substantial amount of constitutionally protected conduct and, therefore, the statute was not overbroad). Even if this Court finds that Section 21.16(b) implicates the First Amendment, it is not overbroad. The statute does not prohibit: 1) consensual disclosure of materials, 2) unintentional disclosure of materials, 3) disclosure of materials which do not depict sexual conduct or exposure of intimate parts, 4) disclosure of materials where the depicted person had no reasonable expectation 17

the materials would remain private, or 4) disclosure that does not identify the depicted person in any manner. TEX. PENAL CODE ANN. 21.16(b) (West 2017). Further narrowing the statute s applicability, Section 21.16(f) provides that it is an affirmative defense to prosecution under Subsection (b) that: 1) the disclosure [ ] is made in the course of: A) lawful and common practices of law enforcement or medical treatment; B) reporting unlawful activity; or C) a legal proceeding, if the disclosure [ ] is permitted or required by law; 2) the disclosure [ ] consists of visual material depicting in a public or commercial setting only a person s voluntary exposure of: A) the person s intimate parts; or B) the person engaging in sexual conduct; or 3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure [ ] consists of visual material provided by another person. Id. at 21.16(f). As a result, Section 21.16(b) does not prohibit a substantial amount of protected expression. Compare Thompson, 442 S.W.3d at 350 (improperphotography statute was extremely broad, applying to non-consensual photography occurring anywhere, as long as the actor had an intent to arouse or gratify sexual desire), with People v. Iniguez, 202 Cal. Rptr. 3d 237, 242-43 (Cal. App. Dep t 18

Super Ct. 2016) (finding former Penal Code Section 647(j)(4) 9 was not overbroad under the First Amendment because, assuming without deciding that a person has a free speech right to distribute photographs and other captured images, the statute was narrowly drawn and protected a compelling public interest). VII. Section 21.16(b) is not vague because it is written in a manner that provides clear notice of prohibited conduct and prevents arbitrary or discriminatory enforcement. After evaluating an overbreadth challenge, an appellate court should then examine a facial vagueness challenge. Hoffman, 455 U.S. at 494. The void-forvagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement. State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). Where a vagueness challenge involves First Amendment considerations, a criminal law must: 1) be sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited, 2) establish determinate guidelines for law enforcement, and 3) be sufficiently definite to avoid chilling protected expression. Stubbs, 502 S.W.3d at 236 (citing see Ex parte 9 The at-issue statute in Iniguez made the following acts a misdemeanor: (A) Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress. 202 Cal. Rptr. 3d at 242. The current statute also includes images of a person engaged in various sexual acts. CAL. PENAL CODE 647(j)(4)(A) (West 2017). 19

Flores, 483 S.W.3d 632, 643 (Tex. App. Houston [14th Dist.] 2015, pet. ref d)). Where a statute does not implicate constitutionally protected conduct or speech, as is the case with Section 21.16(b), it is valid unless it is impermissibly vague in all applications. See Hoffman, 455 U.S. at 494-95; Holcombe, 187 S.W.3d at 499. A statute is not impermissibly vague because it fails to specifically define words or phrases. See id.; Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). A statute is to be interpreted in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results. Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). In determining plain meaning, words and phrases must be read in context and construed according to the rules of grammar and usage. Id. Section 21.16(b) gives clear notice to afford a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. As discussed above, the statute proscribes: 1) intentional, 2) non-consensual, 3) disclosure of visual materials 4) that depict another person with his intimate parts exposed or engaged in sexual conduct, where 5) the visual material was obtained or created under circumstances in which the depicted person reasonably expected the materials to remain private, 6) the disclosure causes harm, and 7) the disclosure reveals the depicted person s identity in any manner. TEX. PENAL CODE ANN. 21.16(b) (West 2017). The statute also defines intimate parts, sexual conduct, 20

and visual material. Id. at 21.16(a)(1), (3), (5). Although not defined in Section 21.16, Chapter 21, or Section 1.07 of the Penal Code, the term disclose is not incomprehensible to a person with ordinary intelligence. 10 See Stubbs, 502 S.W.3d at 236 (agreeing the term harm is defined by the Penal Code and is not an esoteric or complicated term devoid of understanding ). Further, the statute s elements are clear and sufficient to prevent arbitrary or discriminatory enforcement by police. See Holcombe, 187 S.W.3d at 500 (noise ordinance, though allowing degree of police judgment, created objective standard which prevented broad discriminatory or subjective enforcement by police); compare with Iniguez, 202 Cal. Rptr. 3d at 241-42 (finding former Penal Code Section 647(j)(4) not to be vague because people of common intelligence would not have to guess at the statute s meaning or differ as to its application, and the statute s terms did not lend themselves to arbitrary and discriminatory application). Finally, under the plain language of Section 21.16(b), protected expression is not criminalized because, as discussed above, the conduct prohibited by the statute is not protected by the First Amendment. Alternatively, as also discussed above, the statute is specific and considerably narrow in its applicability. Therefore, 10 Disclose means to open up, to expose to view, hatch, or to make known or public. MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/disclose (last visited November 7, 2017). 21

Section 21.16(b) is sufficiently definite to avoid chilling any protected expression. As a result, the statute is not impermissibly vague. Texas Penal Code Section 21.16(b) prohibits conduct that is not protected under the First Amendment. If Section 21.16(b) is considered to implicate the First Amendment, the statute withstands intermediate scrutiny. Even if this Court considers the statute to be a content-based speech regulation, the statute is necessary and narrowly tailored to achieve a compelling government interest. Finally, the statute is not overbroad or vague. Therefore, Section 21.16(b) does not violate the First Amendment. CONCLUSION It is respectfully submitted that this Court reverse the trial court s order granting appellee s motion to quash the information. It is also respectfully submitted that this Court reverse the trial court s order granting appellee s requested relief in his application for writ of habeas corpus. KIM OGG District Attorney Harris County, Texas /s/ Patricia McLean PATRICIA MCLEAN Assistant District Attorney Harris County, Texas TBC No. 24081687 mclean_patricia@dao.hctx.net 22

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing instrument has been sent to the following email address via e-filing: Tom Abbate/Mark Bennett Attorneys for Appellant tom@tomabbatelaw.com mb@ivi3.com /s/ Patricia McLean PATRICIA MCLEAN Assistant District Attorney Harris County, Texas TBC No. 24081687 CERTIFICATE OF COMPLIANCE The undersigned attorney certifies that this computer-generated document has a word count of 5,146 words, based upon the representation provided by the word processing program that was used to create the document. /s/ Patricia McLean PATRICIA MCLEAN Assistant District Attorney Harris County, Texas TBC No. 24081687 Date: 11/7/2017 23