Ex Parte Michael Lowry v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 29, 2025
• Docket: 01-20-00859-CR
• Status: Published

Opinion

Opinion issued May 29, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00859-CR ——————————— EX PARTE MICHAEL LOWRY, Appellant

On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1685846

OPINION ON REMAND

On remand from the Court of Criminal Appeals, we address habeas applicant

Michael Lowry’s remaining argument that section 43.262(b) of the Texas Penal

Code is unconstitutionally vague. We affirm.

I. Background

The relevant facts and background are fully set forth in the Court of Criminal

Appeals’ and our prior opinions. See Ex parte Lowry, 693 S.W.3d 388, 391–94 (Tex. Crim. App. 2024); Ex parte Lowry, 639 S.W.3d 151, 156–58 (Tex. App.—

Houston [1st Dist.] 2021), rev’d, 693 S.W.3d 388 (Tex. Crim. App. 2024). In short,

the State charged Lowry with possession of lewd visual material depicting a child

under section 43.262(b), which provides:

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

(2) appeals to the prurient interest in sex; and (3) has no serious literary, artistic, political, or scientific value.

TEX. PENAL CODE § 43.262(b).

Lowry filed an application for pretrial writ of habeas corpus challenging the

constitutionality of section 43.262(b) on multiple bases, which the trial court denied.

Our court originally concluded that section 43.262(b) is an unconstitutional

content-based restriction on free speech and overbroad. The Court of Criminal

Appeals reversed, concluding the section regulates only an unprotected category of

speech—child pornography—and that Lowry did not preserve an overbreadth

challenge. On remand, we address Lowry’s remaining argument that section

43.262(b) is void for vagueness.

2 II. Void for Vagueness

A. Standards of review and relevant law

It is a basic principle of due process that a law is void for vagueness if its

prohibitions are not clearly defined. Wagner v. State, 539 S.W.3d 298, 313 (Tex.

Crim. App. 2018). A vagueness argument implicates two constitutional concerns:

(1) due process, which requires that statutes give people of ordinary intelligence fair

notice of what the law demands of them; and (2) separation of powers, under which

only the legislature is authorized to “make an act a crime” and shall not pass vague

laws delegating responsibility for defining crimes to unaccountable police,

prosecutors, and judges. State v. Zuniga, 656 S.W.3d 925, 928 (Tex. App.—

Houston [14th Dist.] 2022, pet. ref’d) (citing United States v. Davis, 588 U.S. 445,

451 (2019)). Hence, a criminal law is unconstitutionally vague if it is not sufficiently

clear (1) to give a person of ordinary intelligence a reasonable opportunity to know

what is prohibited and (2) to establish determinate guidelines for law enforcement.

State v. Doyal, 589 S.W.3d 136, 146 (Tex. Crim. App. 2019). “What renders a

statute vague is the ‘indeterminacy of precisely what’ the prohibited conduct is.” Id.

(quoting United States v. Williams, 553 U.S. 285, 306 (2008)). When a vagueness

challenge is raised, “we presume that the statute is constitutional, which means that

the burden rests on the challenger to establish its unconstitutionality.” Zuniga, 656

S.W.3d at 928.

3 Generally, in addressing a vagueness challenge, courts are to consider whether

the statute is vague as applied to a defendant’s conduct before considering whether

the statute may be vague as applied to the conduct of others. Ex parte Nuncio, 662

S.W.3d 903, 921 (Tex. Crim. App. 2022). But if a statute implicates the First

Amendment, the statute may be held facially invalid even though it may not be

unconstitutional as applied to the defendant’s conduct. Ex parte Barton, 662 S.W.3d

876, 880 (Tex. Crim. App. 2022). A statute implicating the First Amendment may

be found facially vague without “a showing that there are no possible instances of

conduct clearly falling within the statute’s prohibitions,” and “it must also be

sufficiently definite to avoid chilling protected expression.” Doyal, 589 S.W.3d at

145–46. Greater specificity is required when First Amendment freedoms are

implicated because uncertain meanings inevitably lead citizens to steer far wider of

the unlawful zone than if the boundaries of the forbidden areas are clearly marked.

Id. at 146. “Nevertheless, ‘perfect clarity and precise guidance have never been

required even of regulations that restrict expressive activity.’” Id. (quoting Minn.

Voters All. v. Mansky, 585 U.S. 1, 21 (2018)). And scienter requirements may

alleviate vagueness concerns. See id.

Lowry’s vagueness challenge requires us to construe section 43.292(b).

Statutory construction is a question of law we review de novo. Lowry, 693 S.W.3d

at 406. We construe words, phrases, clauses, and sentences in their context and

4 according to the rules of grammar and give effect to each word, phrase, clause, and

sentence if reasonably possible, presuming the legislature did not include

meaningless language. Id. If the text is plain, we give effect to that meaning unless

doing so would lead to absurd results that the legislature could not have possibly

intended. Id.

B. Section 43.262(b) is not facially vague

The Court of Criminal Appeals determined section 43.262(b) “regulates

expressive conduct that implicates the First Amendment.” Lowry, 693 S.W.3d at

407. Thus, section 43.262(b) is subject to a facial vagueness challenge. See Nuncio,

662 S.W.3d at 921. Additionally, the State specifically charged Lowry with

knowingly possessing a photograph that depicts the lewd exhibition of the pubic area

of a clothed child that appeals to the prurient interest in sex and has no serious

literary, artistic, political, or scientific value, so our analysis is limited to this part of

section 43.262(b). See United States v. Grace, 461 U.S. 171, 175 (1983) (limiting

review of statute’s constitutionality under First Amendment to part of statute under

which defendants were charged).

Lowry contends section 43.262(b) is facially vague because it does not give

people of ordinary intelligence fair notice of what the law demands of them, which

will chill speech, causing citizens to remain silent rather than express themselves

5 due to the unclear boundaries of the statutory prohibition.1 Lowry questions “what

would make a picture of a fully dressed 17-year-old lewd?” He asks what might be

considered lewd for purposes of section 43.262(b) in photographs of girls in bikinis

on the beach, a gymnast doing a split jump, or models in clothing advertisements, or

in films intended protest the oversexualization of children by exposing examples of

the same.

The undefined term “lewd” is not the sole descriptor of visual material

prohibited by section 43.262 but one of several descriptive elements. A statute is

not unconstitutionally vague merely when words are not specifically defined because

words must be read in the context in which they are used. See Wagner, 539 S.W.3d

at 314. In relevant part, section 43.262(b) specifically refers to visual material that

“(1) depicts the lewd exhibition of the . . . pubic area of [a] . . . clothed child who is

younger than 18 years of age at the time the visual material was created; (2) appeals

to the prurient interest in sex; and (3) has no serious literary, artistic, political, or

1 To the extent Lowry argues section 43.262(b) is vague because it is unclear whether it regulates a substantial amount of protected speech, such argument pertains to vagueness as it relates to a First Amendment overbreadth inquiry, which the Court of Criminal Appeals concluded Lowry did not preserve. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 864, 871–74 (1997) (explaining vagueness can be part of a separate overbreadth challenge based on the First Amendment); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494–95 & nn. 6, 7 (1982) (same); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (“Such a plaintiff may have a valid overbreadth claim under the First Amendment, but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression.”).

6 scientific value.” TEX. PENAL CODE § 43.262(b). “Lewd,” a common word meaning

“obscene, vulgar” or “sexually unchaste or licentious,”2 describes the type of

exhibition of a clothed child’s pubic area that the prohibited visual material must

depict, which also must appeal to the prurient interest in sex and have no serious

literary, artistic, political, or scientific value. Thus, in the context of the statute,

“lewd” is not vague but an integral part of several descriptors that, combined,

significantly narrow and clarify the type of visual material that is prohibited. See

Courtemanche v. State, 507 S.W.2d 545, 546–47 (Tex. Crim. App. 1974)

(recognizing statutes using “lewd” as not vague because offenses included other

descriptive elements); Garay v. State, 954 S.W.2d 59, 63 (Tex. App.—San Antonio

1997, pet. ref’d) (concluding any inherent vagueness in the word “lewd” as used in

Penal Code section 43.25(a)(2) is reduced when the statute is read as a whole); see

also Gerron v. State, 524 S.W.3d 308, 316 (Tex. App.—Waco 2016, pet. ref’d)

(“The term ‘lewd exhibition,’ as used in the statute, is defined in dictionaries and is

so well known as to be understood by a person of ordinary intelligence.”).

The inclusion of a scienter requirement in section 43.262(b) further mitigates

against any potential vagueness concerns. The Court of Criminal Appeals concluded

that a violation of section 43.262(b) requires a person (1) “knowingly possess, access

2 Lewd, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/lewd (last visited May 21, 2025).

7 with intent to view, or promote visual material knowing that the visual material

depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially

clothed, or clothed child,” (2) “know that the child was under 18 years old when the

material was created,” (3) “know that the material appeals to the prurient interest in

sex,” and (4) “know that the material has no serious literary, artistic, political, or

scientific value.” Lowry, 693 S.W.3d at 416 (emphasis added). That a person must

know the visual material meets each of these elements before he violates the statute

ensures he has adequate notice of what is proscribed. See Doyal, 589 S.W.3d at

146.3 In fact, in his brief filed before the Court of Criminal Appeals concluded

section 43.262(b) has a comprehensive scienter requirement, Lowry recognized the

effect such requirement would have by stating, “Section 43.262 might have passed

the vagueness test had the statute included a requirement that the offending person

subjectively believe that the material they possessed was lewd, appealed to the

prurient interest, and had no serious societal value[.]”

3 See also McFadden v. United States, 576 U.S. 186, 197 (2015) (“Under our precedents, a scienter requirement in a statute alleviate[s] vagueness concerns, narrow[s] the scope of [its] prohibition[,] and limit[s] prosecutorial discretion.” (internal quotation marks omitted)); Williams, 553 U.S. at 306 (concluding “knowingly” scienter requirement negated indeterminacy in federal statute because whether defendant “held a belief or had an intent” regarding material being child pornography are “clear requirements”); Nuncio, 662 S.W.3d at 924–26 (holding scienter requirement negated vagueness by allowing person to determine whether or not his conduct violated harassment statute implicating First Amendment).

8 Lowry lastly contends that section 43.262(b), which is generally a state jail

felony, applies to conduct that also violates section 43.261, which is generally a

Class C misdemeanor he describes as proscribing consenting minors from

exchanging “sexting images.” See TEX. PENAL CODE § 43.261. Lowry argues this

creates vagueness because teenagers do not know which offense they may be

charged with when “sexting.” Even assuming both statutes regulate the same

“sexting” conduct, that does not render section 43.262(b) vague because it is

otherwise sufficiently clear. See Earls v. State, 707 S.W.2d 82, 86–87 (Tex. Crim.

App. 1986) (“The fact that a person’s conduct violates two parts of a statute or even

two different statutes does not make the statute vague as long as the proscribed

conduct is described so as to give a person fair notice that it violates the statute.”);

Ex parte Luster, 846 S.W.2d 928, 930 (Tex. App.—Fort Worth 1993, pet. ref’d)

(applying Earls and holding “the fact that different punishments are authorized by

more than one applicable statute does not detract from a defendant’s notice of the

punishment under each”).

We conclude that section 43.262(b) is sufficiently clear to give a person of

ordinary intelligence a reasonable opportunity to know what is prohibited and to

establish determinate guidelines for law enforcement. See Doyal, 589 S.W.3d at

146. Section 43.262(b) will not cause citizens to steer wide of the unlawful zone

prohibited by the statute, chilling lawful expression. See Wagner, 539 S.W.3d at

9 313–14. To the contrary, ordinary persons will understand from reviewing the

statute’s multiple, conjunctive elements “whether or not their conduct is criminal.”

Nuncio, 662 S.W.3d at 926 (emphasis in original). Even when a clothed child is

involved, that a violator must knowingly possess visual material that he knows meets

each of section 43.262(b)’s descriptive elements that render the material child

pornography adequately ensures ordinary persons understand what photographs and

films are and are not prohibited. Ex parte Lowry, 693 S.W.3d at 411, 418

(concluding section 43.262(b) regulates only child pornography and that the “lewd

exhibition of a child’s clothed pubic area is in fact intrinsically related to the sexual

abuse and exploitation of children”). We overrule Lowry’s sole remaining issue.

III. Conclusion

We conclude that section 43.262(b) of the Texas Penal Code is not facially

vague and affirm the trial court’s order denying Lowry’s application for writ of

habeas corpus.

Andrew Johnson Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

Publish. See TEX. R. APP. P. 47.2(b).