Opinion filed May 9, 2019




                                      In The

        Eleventh Court of Appeals
                                   __________

                              No. 11-18-00156-CR
                                  __________

               EX PARTE RODOLFO ORTEGA NUNEZ


                     On Appeal from the 70th District Court
                              Ector County, Texas
                      Trial Court Cause No. A-16-1301-CR


                     MEMORANDUM OPINION
      Rodolfo Ortega Nunez stands charged by indictment with the state jail felony
offense of invasive visual recording under Section 21.15(b)(2) of the Texas Penal
Code. See TEX. PENAL CODE ANN. § 21.15(b)(2) (West 2019). Nunez filed a pretrial
application for writ of habeas corpus in which he sought to obtain habeas corpus
relief from the trial court based upon his contentions that the statute under which he
was indicted is unconstitutional. The trial court held a hearing and denied the relief
requested by Nunez. We affirm.
      Nunez presents one issue in this appeal. He contends that Section 21.15(b)(2)
is facially overbroad in violation of the First Amendment to the United States
Constitution. See U.S. CONST. amend. I. Nunez raised this claim in his pretrial
application for writ of habeas corpus.
      A defendant may file a pretrial application for writ of habeas corpus in order
to raise a facial challenge to the constitutionality of the statute under which the
defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.
2014). Whether a statute is facially unconstitutional is a question of law subject to
de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
      When the constitutionality of a statute is attacked, a court usually must
presume that the statute is valid and that the legislature has not acted unreasonably
or arbitrarily. Id. at 14–15. With respect to constitutional provisions other than the
First Amendment, a facial challenge to the constitutionality of a statute will succeed
only if it is shown that the statute is unconstitutional in all of its applications. State
v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015). However, when the
statute restricts and punishes speech based on its content, the usual presumption of
constitutionality does not apply. Lo, 424 S.W.3d at 15. Instead, content-based
regulations are presumptively invalid, and the State bears the burden to rebut that
presumption. Id. A court must use strict scrutiny in its review of a content-based
regulation. Thompson, 442 S.W.3d at 344–45; Lo, 424 S.W.3d at 15–16.
      To determine which presumption applies, we must determine whether the
applicable subsection of Section 21.15(b) regulates speech based upon the content
of the speech. Section 21.15(b) provides:
            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 other person has
             a reasonable expectation that the intimate area is not
             subject to public view;
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                   (2) photographs or by videotape or other electronic
             means records, broadcasts, or transmits a visual image of
             another in a bathroom or changing room; or
                   (3) knowing the character and content of the
             photograph, recording, broadcast, or transmission,
             promotes a photograph, recording, broadcast, or
             transmission described by Subdivision (1) or (2).
PENAL § 21.15(b).
      The State urges this court to hold that Section 21.15(b)(2) prohibits
noncommunicative behavior rather than expressive conduct and, therefore, is not
subject to First Amendment scrutiny. We, however, are constrained to hold that
Section 21.15(b)(2) regulates speech based upon its content and that it is therefore
subject to First Amendment scrutiny. The Court of Criminal Appeals addressed a
similar contention in Thompson when it considered the constitutionality of
Section 21.15(b)(1). Thompson, 442 S.W.3d at 334–37. The Court of Criminal
Appeals determined that the activity proscribed by Section 21.15(b)(1) is inherently
expressive and concluded “that a person’s purposeful creation of photographs and
visual recordings is entitled to the same First Amendment protection as the
photographs and visual recordings themselves.”            Id. at 337.     Furthermore,
Section 21.15(b)(2) is a content-based regulation. See id. at 348 (holding that
Section 21.15(b)(1) is content based and that strict scrutiny is applicable).
Therefore, we must apply strict scrutiny in our review. See Lo, 424 S.W.3d at 15.
      To satisfy strict scrutiny, a law that regulates speech must be necessary to
serve a compelling state interest and must be 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 the government’s compelling interest and the
restriction.” Id. If a less restrictive means exists to meet the State’s compelling
interest, then the law in question does not satisfy strict scrutiny. Id. at 15–16.

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      First, privacy constitutes a compelling state interest when the privacy interest
is substantial and the invasion of privacy occurs in an intolerable manner.
Thompson, 442 S.W.3d at 348. A substantial privacy interest is “invaded in an
intolerable manner when a person is photographed without consent in a private
place, such as the home, or with respect to an area of the person that is not exposed
to the general public, such as up a skirt.” Id.
      Second, Section 21.15(b)(2) is narrowly drawn. In applying the strict scrutiny
standard to Section 21.15(b)(1)—and holding that Section 21.15(b)(1) did not
survive strict scrutiny and was unconstitutional on its face in violation of the First
Amendment—the Court of Criminal Appeals in Thompson indicated that
Section 21.15(b)(2) would indeed meet the strict scrutiny standard:
      One need only look at the next subsection of the statute—
      § 21.15(b)(2)—to see an example of a provision that is in fact narrowly
      drawn to protect substantial privacy interests—the provision that makes
      it a crime to “photograph or . . . record[] . . . a visual image of another
      at a location that is a bathroom or private dressing room.”
Thompson, 442 S.W.3d at 348–49 (alterations in original) (quoting former PENAL
§ 21.15(b)(2) (2007)).
      Nunez asserts that, insofar as it addressed Section 21.15(b)(2), the Thompson
opinion is dicta and does not control the present case. Nunez argues that this court
should, instead, consider United States Supreme Court authorities such as Reed v.
Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015); United States v. Alvarez, 567 U.S.
709 (2012); and United States v. Stevens, 559 U.S. 460 (2010). Nunez specifically
seems to urge that the statute at issue here is overbroad and restricts a substantial
amount of protected speech as did the statute at issue in Stevens. In Stevens, the
Court invalidated a statute under the First Amendment as being substantially
overbroad because a substantial number of its applications were unconstitutional,
when judged in relation to the statute’s permissible applications. 559 U.S. at 473,

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481–82. The statute at issue in Stevens made it a crime to knowingly create, sell, or
possess a depiction of animal cruelty, if done for commercial gain. Id. at 464–65.
Animal cruelty was broadly defined in the statute to include animals that had been
intentionally wounded or killed, thus including depictions of activities that are
protected by the First Amendment. Id. at 465, 474, 481. Here, Section 21.15(b)(2)
is not overbroad and is limited in scope; it limits the proscribed conduct to
photographing, recording, broadcasting, or transmitting a visual image of another
“in a bathroom or changing room” if done “without the other person’s consent and
with intent to invade the privacy of the other person.” PENAL § 21.15(b)(2). We
have considered the Supreme Court cases cited by Nunez, and we conclude that each
is distinguishable from the case before us.
        We agree with Nunez that we are not compelled to follow any dicta in
Thompson. However, as did the Fort Worth Court of Appeals, we agree with
Thompson’s assessment of Section 21.15(b)(2). In re D.Y., No. 02-16-00294-CV,
2017 WL 2178877, at *2 (Tex. App.—Fort Worth May 18, 2017, pet. denied) (mem.
op.).   We hold that Section 21.15(b)(2) survives strict scrutiny and does not
unlawfully restrict Nunez’s rights to free expression; the statute is narrowly drawn
to protect a compelling state interest in privacy.
        Following the clear statement of the court in Thompson and the holding of the
court in D.Y., we hold that Section 21.15(b)(2) is not unconstitutionally overbroad
and does not violate the First Amendment. Accordingly, the trial court did not err
in denying Nunez’s application for habeas corpus. Nunez’s sole issue on appeal is
overruled.




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        We affirm the order of the trial court.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


May 9, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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