Ex Parte Destin Spearman v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 24, 2023
• Docket: 01-22-00735-CR
• Status: Published

Opinion

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).