                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00073-CR

                EX PARTE CURTIS WAYNE HUDDLESTON,



                           From the 335th District Court
                              Burleson County, Texas
                               Trial Court No. 14,220


                          MEMORANDUM OPINION


      Curtis Wayne Huddleston appeals from the trial court’s order denying his

pretrial application for writ of habeas corpus. We affirm.

      In his sole issue, Huddleston argues that the “child pornography law is invalid

under strict scrutiny because it outlaws expression outside the First Amendment free

zone demarcated by the courts, destroys fundamental rights, and authorizes seriously

discriminatory enforcement.” Pretrial habeas, followed by an interlocutory appeal, is

an "extraordinary remedy," and appellate courts should be careful to ensure that it is

not “misused to secure pretrial appellate review of matters that in actual fact should not

be put before appellate courts at the pretrial stage." Ex parte Ellis, 309 S.W.3d 71, 79
(Tex. Crim. App. 2010); Ex Parte Barnett, 424 S.W.3d 809, 810 (Tex.App.-Waco 2014, no

pet.). Whether a claim is even cognizable on pretrial habeas is a threshold issue that

should be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309

S.W.3d at 79; Ex Parte Barnett, 424 S.W.3d at 810.

       Pretrial habeas is not available to test the sufficiency of the charging instrument

or to construe the meaning and application of the statute defining the offense charged.

Ex parte Ellis, 309 S.W.3d at 79. Pretrial habeas can be used to bring a facial challenge to

the constitutionality of the statute that defines the offense but may not be used to

advance an "as applied" challenge. Id.

       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 Smith, 185 S.W.3d 887, 892 (Tex.

Crim. App. 2006); Ex Parte Barnett, 424 S.W.3d at 810. When an applicant contends that

a criminal statute is facially unconstitutional, he is contending that there is no valid

statute and that the charging instrument is therefore void. Ex parte Weise, 55 S.W.3d

617, 620 (Tex. Crim. App. 2001).

       Section 43.26 of the Texas Penal Code provides that:

       (a) A person commits an offense if:

       (1) the person knowingly or intentionally possesses, or knowingly or
       intentionally accesses with intent to view, visual material that visually
       depicts a child younger than 18 years of age at the time the image of the
       child was made who is engaging in sexual conduct, including a child who
       engages in sexual conduct as a victim of an offense under Section
       20A.02(a)(5), (6), (7), or (8); and


Ex parte Huddleston                                                                   Page 2
       (2) the person knows that the material depicts the child as described by
       Subdivision (1).

TEX. PENAL CODE ANN. § 43.26 (a) (West Supp. 2013). Huddleston argues that the

statute is facially unconstitutional, but such an assertion is not, by itself, enough. See Ex

parte Ellis, 309 S.W.3d at 80. If a claim designated as a facial challenge is in fact an “as

applied” challenge, this Court will not consider the merits of the claim. Id.

       Huddleston asserts that the statute is constitutionally invalid because it

criminalizes the mere receipt of information, it criminalizes a substantial amount of

protected activity, and it authorizes seriously discriminatory enforcement.            First,

Huddleston presents situations in which a person innocently receives unsolicited visual

material depicting a child younger than 18 years of age engaging in sexual conduct.

Huddleston also complains that the statute does not provide a defense that is available

to minors under a similar statute. Huddleston’s various fact situations present an “as

applied” challenge to the statute.

       Next, Huddleston argues that the statute is overbroad because it criminalizes

protected activity. Huddleston provides examples of conduct that are prohibited, but

that are not related to preventing child abuse. Again Huddleston provides various

factual situations based upon how the statute is applied. Finally, Huddleston argues

that the statute authorizes discriminatory enforcement.           Huddleston points out

inconsistencies in the age requirement for this statute as compared to other statutes

defining minors. Huddleston provides examples that a person would not have notice

of when a 17 year old is considered an adult or a child. Huddleston again complains


Ex parte Huddleston                                                                    Page 3
that minors are provided a defense that is not available to adults.         Huddleston’s

complaints again are based upon application of the statute. Because Huddleston’s

complaints all concern the statute “as applied,” we cannot address the complaints in an

interlocutory appeal from a pretrial writ of habeas corpus. We overrule the sole issue.

       We affirm the trial court’s order denying the pretrial writ of habeas corpus.




                                         AL SCOGGINS
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
[CR25]




Ex parte Huddleston                                                                    Page 4
