                                                                                 ACCEPTED
                                                                             12-17-00346-CV
                                                                 TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                          11/29/2017 2:54 PM
                                                                                   Pam Estes
                                                                                      CLERK




                                                              FILED IN
                                                       12th COURT OF APPEALS
                                                            TYLER, TEXAS
                                                       11/29/2017 2:54:07 PM
                 In the Court of Appeals for the              PAM ESTES
                                                                Clerk
               Twelfth District Court of Appeals
                       No. 12-17-00346-CV
                                  On Appeal from
                                  County Court at Law Two
Ex Parte                          Smith County, Texas
Jordan Bartlett Jones
                                  Trial Court
                                  Cause No. 67295
                     Amended Brief for Appellant
                   Appellant requests oral argument.

                                  Mark W. Bennett
                                  TBN 00792970
                                  Bennett & Bennett
                                  917 Franklin Street
                                  Fourth Floor
                                  Houston, Texas 77002
                                  Tel. 713.224.1747
                                  Email MB@IVI3.com

                                  Mishae M. Boren
                                  TBN 24097504
                                  216 W. Erwin St. Suite 300
                                  Tyler, Texas 75702

                                  Counsel for Appellant
                                  November 29, 2017
Statement Regarding Oral Argument

    The issue of the unconstitutionality of statutes such as section

    21.16(b) that criminalize the nonconsensual publication of intimate

    images—“revenge porn” statutes—is one of nationwide interest and

    great importance. Appellant requests oral argument pursuant to Texas

    Rule of Appellate Procedure 39.7.




         ii
Names of All Parties
    Mr. Jordan Bartlett Jones     Appellant
     Mark W. Bennett              Trial and Appellate Counsel
     TBN 00792970                 for Appellant
     Bennett & Bennett
     917 Franklin Street
     Fourth Floor
     Houston, Texas 77002

     Mishae M. Boren
     TBN 24097405
     Boren Law Office, P.C.
     216 W. Erwin St. Suite 300
     Tyler, Texas 75702
     Kevin Hayes                  Trial and Appellate Counsel for
     Michael J. West              Appellee
     100 North Broadway Avenue
     4th Floor
     Tyler, Texas 75702
     Hon. Randall Rogers          Trial Judge




                                                                    iii
Table of Contents
     Statement Regarding Oral Argument ........................ ii
     Names of All Parties.............................................. iii
     Table of Contents ................................................... 1
     Table of Authorities ................................................ 1
     Statement of the Case .............................................. 1
     Procedural History ................................................. 1
     Issues Presented .................................................... 2
     Statement of Facts ................................................. 2
     Summary of the Argument ....................................... 2
     Argument .............................................................. 3
       Point of Error One: Section 21.16(b) is facially
       overbroad under the First Amendment to the
       United States Constitution. ................................. 3
          Strict Scrutiny is the appropriate standard of
          review. ............................................................ 4
          The statute restricts speech. .............................. 5
          The statute restricts speech based on its
          content........................................................... 6
          The statute is presumed to be
          unconstitutional. ............................................ 9
          The statute restricts protected speech. ............... 9
          The statute’s overbreadth is real and
          substantial. .................................................... 11
          The statute fails strict scrutiny. ....................... 13




                                            1
     Conclusion ..................................................... 16
  Point of Error Two: If the statute is interpreted
  narrowly not to be overbroad, such
  interpretation will render it unconstitutionally
  vague. ............................................................... 17
Prayer for Relief ................................................... 18
Certificate of Service ............................................ 19
Certificate of Compliance ...................................... 19
Appendix 1: Order denying habeas relief. ................... 20
Appendix 2: Texas Penal Code section 21.16 ............... 22
Appendix 3: Senate Research Center, Bill Analysis,
Tex. S.B. 1135, 84th Leg., R.S. (2015) ........................ 25




                                       2
Table of Authorities

  CASES
    Ashcroft v. ACLU, 542 U.S. 656 (2004) ...........................................5

     Baggett v. Bullitt, 377 U.S. 360 (1964) ........................................... 17

     Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011) .................... 10

     City of Cincinnati v. Discovery Network, Inc., 507 US 410 (1983) ........ 7

     Clark v. State, 665 S.W.2d 476 (Tex. Crim. App. 1984) ......................5

     Cohen v. California, 403 U.S. 15 (1971) .......................................... 10

     Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .......................6

     Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ................ 7, 10, 13

     Ex Parte Reece, 517 S.W.3d 108 (Tex. Crim. App. 2017) ................... 16

     Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) 6, 7, 9, 13

     Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................... 17

     Hill v. Colorado, 530 U.S. 703 (2000) ..............................................8

     NAACP v. Button, 371 U.S. 415 (1963) .......................................... 17

     Reed v. Town of Gilbert, 476 U.S. ___, 135 S.Ct. 2218 (2015) ...........8

     Reedy v. Webb, 113 S.W.3d 19 (Tex. App.—Tyler 2002, pet.
       denied)...................................................................................... 11

     Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ............ 17




                                                        1
    Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989) .............. 11

    Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) .................... 10

    United States v. Alvarez, 567 U.S. 709 (2012) ............................. 5, 10

    Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
       U.S. 489 (1982) ........................................................................ 17

    Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................... 7, 9, 17

STATUTES
  Tex. Penal Code § 21.16(b) ...................................................... passim

OTHER AUTHORITIES
  Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg.,
    R.S. (2015) ............................................................................... 14




                                                     2
                     In the Court of Appeals for the
                   Twelfth District Court of Appeals
                           No. 12-17-00346-CV
                                      On Appeal from
                                      County Court at Law Two
    Ex Parte                          Smith County, Texas
    Jordan Bartlett Jones
                                      Trial Court
                                      Cause No. 67295
                         Amended Brief for Appellant

    To the Honorable Court of Appeals:

Statement of the Case

    Jordan Bartlett Jones appeals the trial court’s denial of relief on the

    merits on his Amended Application for Writ of Habeas Corpus (Clerk’s

    Record (CR) 35).

                                       ❧
Procedural History

    The State has charged Mr. Jones by Information with violating section

    21.16(b) of the Texas Penal Code. Clerk’s Record (“CR”) 10. On

    September 6, 2017, Mr. Jones filed an Application for Writ of Habeas

    Corpus arguing that section 21.16(b) is unconstitutional on its face (CR

    6). On October 23, 2017 the trial court denied relief (CR 19). Mr.

    Jones appealed.




                                           1
                                          ❧
Issues Presented

    First Issue: Section 21.16(b) is facially overbroad under the First

    Amendment to the United States Constitution.

    Second Issue: Section 21.16(b) is vague under the First Amendment

    to the United States Constitution.

                                          ❧
Statement of Facts

    The operative facts are procedural, and are as stated in the Procedural

    History. Because this is a facial challenge, the underlying facts are not

    relevant.

                                          ❧
Summary of the Argument

    Section 21.16(b) is a content-based restriction on speech, and so is

    presumptively unconstitutional under the First Amendment. Its

    overbreadth is real and substantial, and so it does not satisfy strict

    scrutiny.

         If section 21.16(b) could somehow be interpreted to avoid its real

    and substantial overbreadth, such an interpretation would necessarily

    render it unconstitutionally vague.




                                              2
                                       ❧
Argument

Point of Error One: Section 21.16(b) is facially overbroad
under the First Amendment to the United States
Constitution.

    Mr. Jones is charged with
         without the effective consent of [the complainant], intentionally
         disclos[ing] visual material, namely, a photograph, depicting the
         complainant with her naked genitals exposed, and the visual
         material was obtained by the defendant under circumstances in
         which the complainant had a reasonable expectation of privacy that
         the visual material would remain private, and the disclosure of the
         visual material caused harm to the complainant, namely,
         embarrassment to [the complainant], and the disclosure of the
         visual material revealed the identity of the complainant, through
         accompanying or subsequent information provided by the
         defendant.

    Clerk’s Record (“CR”) 12. This alleges a violation of Section 21.16(b)

    of the Texas Penal Code:
         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
        (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….

   Tex. Penal Code § 21.16(b). Section 21.16(b) is a content-based

   restriction on speech. Because it is a content-based restriction on

   speech Section 21.16(b) is presumptively invalid under the First

   Amendment. The State has the burden of showing that the statute

   meets strict scrutiny. That is, the State must show that the statute is

   both necessary and narrowly written to satisfy a compelling state

   interest. The State cannot do so.

Strict Scrutiny is the appropriate standard of review.

   As a general matter, government may not regulate speech “because of

   its message, its ideas, its subject matter, or its content.” Police Dept. of

   City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

        The modern approach to First Amendment challenges to speech-

   restricting penal statutes is a three-step inquiry:

   1.    Does the statute restrict speech (including expressive conduct) based
         on its content? If the answer is “yes,” then the statute is
         presumed to be unconstitutional, the State has the burden of
         proving otherwise, and the court must ask…
   2.    Does the restricted speech fall entirely into a category of unprotected
         speech? If the statute forbids only unprotected speech, the First




                                           4
        Amendment is satisfied. If, however, the statute captures
        protected speech along with unprotected speech, then…
  3.    Does the statute satisfy strict scrutiny? That is, is it necessary and
        narrowly written to satisfy a compelling state interest?

  See United States v. Alvarez, 567 U.S. 709 (2012) (applying this

  approach to the Stolen Valor Act). This—strict scrutiny, with a

  presumption of invalidity (and a burden, concomitant with this

  presumption, on the State, Ashcroft v. ACLU, 542 U.S. 656, 660

  (2004)) is the appropriate standard of review.

                                      ❧

The statute restricts speech.

  “A statute is considered impermissibly overbroad if, in addition to

  prescribing activities which may constitutionally be forbidden, it

  sweeps within its coverage speech or conduct which is protected by the

  First Amendment.” Clark v. State, 665 S.W.2d 476, 482 (Tex. Crim.

  App. 1984) (emphasis added).

       The disclosure of visual materials—“showing images to

  people”—is so obviously speech governed by the First Amendment

  that no court appears to have ever seriously asked the question, rather

  assuming that it is the case. Expressive conduct, also known as

  “symbolic speech,” is protected like any other kind of speech.




                                          5
  Photography and visual recordings are inherently expressive conduct.

  Ex Parte Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014).

       If making a photograph or visual recording is inherently

  expressive, then disclosing (as alleged here) such expression is itself

  expressive conduct. If this were not so, then picture books and

  magazines would not be speech, paintings would not be speech, and

  silent movies would not be speech.

       Cases such as Erznoznik v. City of Jacksonville, 422 U.S. 205, 212

  (1975), or the child-pornography cases, reveal that not only the

  disclosure of visual materials, but also the disclosure of intimate visual

  materials—nude pictures and movies—is speech.1

                                        ❧
The statute restricts speech based on its content.

  There are two sorts of restriction on speech: content-based

  restrictions,   and    content-neutral        restrictions.   Content-neutral

  restrictions are also known as “time, place, and manner” restrictions.

  They must, among other things, be “justified without reference to the



  1
    Some of it—child pornography and obscenity— is unprotected speech, but it is
  speech nonetheless.




                                            6
  content of the regulated speech.” Ward v. Rock Against Racism, 491

  U.S. 781, 791 (1989).

       Because Section 21.16(b) restricts inherently expressive conduct,

  it is either content based or content neutral, and is subject to strict

  scrutiny unless it is a content-neutral restriction. Ex Parte Thompson,

  442 S.W.3d at 345.

Because the Statute Fails the Lo Test it is Content Based.

  The Texas Court of Criminal Appeals has held:
       If it is necessary to look at the content of the speech in question to
       decide if the speaker violated the law, then the regulation is
       content-based.

  Ex Parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013); Ex Parte

  Thompson, 442 S.W.3d at 345.

       The United States Supreme Court has described this test as

  “common sense.” City of Cincinnati v. Discovery Network, Inc., 507 US

  410, 429 (1983).

       This Court may simply apply the Lo test, recognize that it is

  necessary to look at the content of the speech (the visual material) to

  decide if the speaker violated the law, and find the statute content

  based.




                                         7
        The statute satisfies other tests of content basedness as well.

                                             ❧

Because the statute discriminates on the basis of subject matter it is
content based.

  A statute is content based if it favors some speech over other speech

  based on its subject matter. Hill v. Colorado, 530 U.S. 703, 723 (2000).

        Section 21.16(b) restricts the disclosure of “visual material

  depicting another person with the person’s intimate parts exposed or

  engaged in sexual conduct,” but not the disclosure of other things.

  This is a subject-matter-based restriction.2 Tex. Penal Code § 21.16(b).

        Section 21.16(b)’s restriction on speech is content based because

  it favors some speech over other speech based on its subject matter

  (“visual material depicting another person with the person’s intimate

  parts exposed or engaged in sexual conduct”), Hill, 530 U.S. at 723, its

  topic (sexually explicit images), Reed v. Town of Gilbert, 135 S.Ct. 2218,

  2227 (2015), and its function (causing harm), Id.




  2
    If this were not a content-based restriction, or if images of intimate parts were
  constitutionally unprotected, the State could write a statute forbidding the publication
  of all pornography, and the statute would only have to satisfy intermediate scrutiny.




                                                 8
       Section 21.16(b) is not “justified without reference to the

  content,” Ward, 491 U.S. at 791, and so is not content neutral but

  rather content based.

                                     ❧
The statute is presumed to be unconstitutional.

  “Content-based regulations are presumptively invalid, and it is rare

  that a regulation restricting speech because of its content will ever be

  permissible.” Ex Parte Thompson, 442 S.W.3d at 348.

                                     ❧
The statute restricts protected speech.

  If section 21.16(b) restricted only unprotected speech, it would be a

  valid restriction. But the Supreme Court has recognized only nine

  categories of speech unprotected by the First Amendment:
        • Advocacy intended, and likely, to incite imminent lawless
          action;
        • Obscenity;
        • Defamation;
        • Speech integral to criminal conduct;
        • So-called “fighting words”;
        • Child pornography;
        • Fraud;
        • True threats; and




                                         9
       • Speech presenting some grave and imminent threat the
         government has the power to prevent, “although,” says the
         Supreme Court, “a restriction under the last category is most
         difficult to sustain.”

Alvarez, 132 S.Ct. at 2544. All speech falling outside of these

categories is protected, and “new categories of unprotected speech

may not be added to the list by a legislature that concludes certain

speech is too harmful to be tolerated.” Brown v. Entm’t Merchants

Ass’n, 564 U.S. 786, 791 (2011).

      Notably absent from this list of categories of speech unprotected

by the First Amendment is anything even remotely resembling:
       • Violations of the subject’s privacy;3
       • Images of intimate parts;4
       • Images of sexual conduct;5


3
  The State will inevitably cite Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.
2010) and Cohen v. California, 403 U.S. 15 (1971) for the proposition that
“essentially intolerable” invasions of privacy are unprotected. Scott and Cohen are
off point, since both dealt with invasions of the privacy of the hearer of the speech,
not of its subject.
4
  In Ex parte Lo, the Court of Criminal Appeals struck down section 33.021(b) of the
Texas Penal Code, which prohibited communicating online in a sexually explicit
manner with a minor. Ex parte Lo, 424 S.W.3d 10. The court initially pointed out that
such a statute would bar the protected content of modern movies or television
shows—visual material—then struck down the statute because of its overbreadth in
attempting to proscribe protected speech. Id.




                                            10
          • Speech causing harm;6 or
          • Any combination of these things.

   Images of another, even of their intimate areas, even if made when the

   other person reasonably expected privacy and causing harm, fall into

   no recognized category of unprotected speech, and so are protected.

   Because disclosure of protected images is protected regardless of the

   emotional harm done, section 21.16(b) is unconstitutional.

                                             ❧

The statute’s overbreadth is real and substantial.

   Because section 21.16(b) is a content-based restriction on speech, it is

   subject to strict scrutiny, and is presumptively invalid. The State has

   the burden of overcoming this presumption by showing that the

   overbreadth is not substantial, and cannot do so.

         The State cannot rebut the presumption of unconstitutionality

   because virtually everything forbidden by section 21.16(b) is protected


   5
     Sexual expression is generally private. Yet the court in Ex parte Lo followed the
   Supreme Court’s principle that “Sexual expression which is indecent but not obscene
   is protected by the First Amendment.” Sable Communications of Cal. v. FCC, 492
   U.S. 115, 126 (1989).
   6
     Defamation is speech causing harm, but it is not actionable unless it is false. Reedy
   v. Webb, 113 S.W.3d 19, 23 (Tex. App.—Tyler 2002, pet. denied). The speech
   restricted by section 21.16(b) is true by definition.




                                                 11
by the First Amendment. Images and visual recordings do not become

unprotected because they depict intimate areas or are made in private

places. They do not become unprotected because they are made in

violation of someone’s expectation of privacy. Nor do they become

unprotected because they are intended to invade that privacy.

     Some of the speech forbidden by section 21.16(b) might

incidentally fall into a category of unprotected speech — it might be

obscenity, or child pornography, or part of a true threat — but the bulk

of images and visual recordings will not.

     All speech that does not fall into a recognized category of

historically unprotected speech is protected. The illegitimate sweep of

section 21.16(b) is the rule, rather than the exception: Unless the

images or recordings forbidden by the statute happen to be child

pornography or obscenity, they are protected.

     Because no recognized category of unprotected speech covers the

speech forbidden by section 21.16(b), the statute’s overbreadth is real

and substantial, and the statute must fail.

                                    ❧




                                        12
The statute fails strict scrutiny.

   Because section 21.16(b) restricts speech based on its content, and

   because Section 21.16(b) forbids some protected speech, this Court

   must apply strict scrutiny, which section 21.16(b) fails. Satisfying strict

   scrutiny is the State’s burden. Ex Parte Lo, 424 S.W.3d at 15. “[W]hen

   a statute is content based, it may be upheld only if it is the least

   restrictive means of achieving the compelling government interest in

   question.” Ex Parte Thompson, 442 S.W.3d at 348.

        The State cannot meet its burden of showing that Section

   21.16(b) satisfies strict scrutiny: that it is necessary and narrowly

   written to satisfy a compelling state interest.

                                          ❧

 There is no compelling state interest.

   The State has no compelling interest in forbidding constitutionally

   protected speech, no matter how offensive the speech. We are allowed

   to violate each other’s privacy, even if we embarrass each other, as

   long as our speech is otherwise not constitutionally protected.
        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




                                              13
     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, “revenge porn websites” are further preying on victims by
     charging fees to remove the sexually explicit images from the
     internet.

Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg., R.S.

(2015).

     It bears mentioning that the specific harm alleged in this case is

“embarrassment.” CR 10.

     The disclosure of sexually explicit images (other than obscenity

or child pornography) is constitutionally protected speech. Nothing in

the Supreme Court’s First Amendment jurisprudence suggests that

the disclosure of sexually explicit images becomes unprotected

because it is without consent or because it causes “irreversible harm.”

There can be no compelling state interest in restricting constitutionally

protected speech.

                                   ❧




                                       14
The statute has a narrow legitimate sweep.

  The legitimate sweep of a content-based restriction comprises the

  unprotected speech — that is, speech that falls into one of the few

  narrowly drawn categories of historically unprotected speech — that is

  forbidden by the statute.

       Speech does not become unprotected simply because it might

  cause harm, simply because it causes harm, nor even simply because it

  causes horrific unintended results.

       The legitimate sweep of section 21.16(b) — speech that is

  unprotected and that violates the statute — is only incidentally

  forbidden. This comprises a) obscenity; and b) child pornography.

  That is, some of the speech forbidden by the statute may be obscene,

  and some of it may be child pornography, but the statute does not

  target such unprotected speech.

                                        ❧

The statute is not narrowly written.

  Because the disclosure of sexually explicit images, even without

  consent and even when it causes harm, is protected by the First

  Amendment, section 21.16(b) is not narrowly written to restrict only

  unprotected speech.




                                            15
                                           ❧

The statute is not necessary.

  Because the disclosure of sexually explicit images, even without

  consent and even when it causes harm, is protected by the First

  Amendment, section 21.16(b) is not necessary.

                                            ❧

Conclusion

  Section 21.16(b) interdicts wide swaths of protected speech.

  Disclosure of visual material involving intimate areas or sexual

  conduct can harass, annoy, alarm, abuse, torment, and embarrass.7 But

  the State’s desire to prevent emotional harm of all sorts8 cannot trump

  the First Amendment. Section 21.16(b) is substantially overbroad.

                                            ❧




  7
    See Scott. v. State, 322 S.W.3d 662, 669 (Tex. Crim. App. 2010) (describing these
  types of emotional distress as “harm”).
  8
    The State certainly cannot prevent emotional harm without running afoul of the First
  Amendment — “Criticism can be annoying, embarrassing, or alarming, and it is often
  intentionally so.” Ex Parte Reece, 517 S.W.3d 108, 111 (Tex. Crim. App. 2017)
  (Keller, P.J., dissenting from refusal of discretionary review).




                                                16
Point of Error Two: If the statute is interpreted narrowly
not to be overbroad, such interpretation will render it
unconstitutionally vague.

   Due process requires that laws give people of ordinary intelligence fair

   notice of what is prohibited. Grayned v. City of Rockford, 408 U.S. 104,

   108 (1972). The lack of such notice in a law that regulates expression

   “raises special First Amendment concerns because of its obvious

   chilling effect on free speech.” Reno v. American Civil Liberties Union,

   521 U.S. 844, 872 (1997). Vague laws force potential speakers to “steer

   far wider of the unlawful zone … than if the boundaries of the

   forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U.S. 360,

   372 (1964) (internal quotation marks and citations omitted).

        While “perfect clarity and precise guidance have never been

   required even of regulations that restrict expressive activity,” Ward v.

   Rock Against Racism, 491 U.S. 781, 794 (1989), “government may

   regulate in the area” of First Amendment freedoms “only with narrow

   specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963); see also

   Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

   489, 499 (1982).




                                        17
          Section 21.16(b) as written is plain and overbroad. If this Court

     were to narrow its interpretation to save it from overbreadth, such an

     interpretation would necessarily render it unconstitutionally vague.

                                        ❧
Prayer for Relief

     For these reasons, Mr. Jones asks this Court to reverse the trial court’s

     denial of habeas relief, hold that section 21.16(b) is unconstitutional,

     and remand the case to the trial court with orders to dismiss the

     Information.


                                            Respectfully Submitted,


                                            ______________________
                                            Mark W. Bennett
                                            Counsel for Appellant




                                            18
Certificate of Service

     A copy of this Brief for Appellant has been served upon the State of

     Texas by electronic filing.
Certificate of Compliance

     According to Microsoft Word’s word count, this brief contains 2,808

     words, not including the: caption, identity of parties and counsel,

     statement regarding oral argument, table of contents, index of

     authorities, statement of the case, statement of issues presented,

     statement of jurisdiction, statement of procedural history, signature,

     proof of service, certification, certificate of compliance, and appendix.



                                          ______________________
                                          Mark W. Bennett




                                           19
Appendix 1: Order denying habeas relief.




                                  20
                                                                                          
                                           ClgIu/au u


6$u57u7u 2"u7@5u                               )/
                                                                                  
                                                                          7$u2=/7Au2;37u


                                                    )/                     6u -?u0<. 3u7?2u


*240u37-)7u+215u                              )/                    5.(9%u2>/8Bu9!@5u


                                         



           :SIuamfkuCPIdudIoUIruaKu jTIuIMJ`HC_iguCccZVGCiUa`uTCEICgueIYVIKuiSIu5jCiIguC_grIdu


C`Hu iTIu NWYIu NW_Hgu C`Hu HIjId^V`Igu iTCiu jTIdIu CdIu _au Ga`idapIeiIHu ceIpVamgZtu m`dIgaYpIHu MDGjgu


]CjIeVCZuiaujSIuZIQCYVjtu aKu jSIu HIMJ`HC`jgu dIgkeCV`ju aeuGa_NX_I]I`j	uC_HujTCiujTIu[IQC\u ceaGIHnfIguV_u


iSVguGCgIurIfIucdacIfuC_HuCgu ceaqVHIHu EtujTIu<`UiIHu 5iCiIgua`gjVjljUa`u C_Hu7IsCgu ZCru


           &juVguTIfIEtu 233uiTCiuiTIuIO_HC`jgu CccYUGCiVa`u NbfuSCFICgueIYVIKuUgu /'uU`uCZZu


iSV_Qhu




           5'#/u jSVgu           HCtuaLu                                  	uu




                                                                 
                                                                                                   / 


                                                 %2/23-
                                                 ,mHRI
uam_ituameiuCju -Cruu
                                                  5^UiTual`itu 7IsCgu


                                                         &$/% #/"/
                                                                          (// /
                                                                                




  /                                                                            
                                                                                            
                                                                                                       //
                                                                                                       
                                                                                                                  
 
 


  /         '*+!
                        /                                                                                         ,-./
		/
                                                                                                                            
                                                                                                      
                                                                                                                      
                                                                                                                  	

                                                                                                                   
                                                                                                                       

                                                                                                                              
                                                                                                                                	

                                                                                                     
                                                                                                                   
                                                                                                              	
                                                                                                             
                                                                                                    
                                                                                                     
/       

                                                                                                             
                                                                                                               
                                                                                                                
                                                                                                    




                                                 Page 19
Appendix 2: Texas Penal Code section 21.16
    Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF
    INTIMATE VISUAL MATERIAL.
    (a) In this section:
          (1) "Intimate parts" means the naked genitals, pubic area, anus,
    buttocks, or female nipple of a person.
          (2) "Promote" means to procure, manufacture, issue, sell, give,
    provide, lend, mail, deliver, transfer, transmit, publish, distribute,
    circulate, disseminate, present, exhibit, or advertise or to offer or agree
    to do any of the above.
          (3) "Sexual conduct" means sexual contact, actual or simulated
    sexual intercourse, deviate sexual intercourse, sexual bestiality,
    masturbation, or sadomasochistic abuse.
          (4) "Simulated" means the explicit depiction of sexual conduct
    that creates the appearance of actual sexual conduct and during which
    a person engaging in the conduct exhibits any uncovered portion of the
    breasts, genitals, or buttocks.
          (5) "Visual material" means:
          (A) any film, photograph, videotape, negative, or slide or any
    photographic reproduction that contains or incorporates in any
    manner any film, photograph, videotape, negative, or slide; or
          (B) any disk, diskette, or other physical medium that allows an
    image to be displayed on a computer or other video screen and any
    image transmitted to a computer or other video screen by telephone
    line, cable, satellite transmission, or other method.
    (b) 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;


                                            22
      (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.
(c) A person commits an offense if the person intentionally threatens
to disclose, without the consent of the depicted person, visual material
depicting another person with the person's intimate parts exposed or
engaged in sexual conduct and the actor makes the threat to obtain a
benefit:
      (1) in return for not making the disclosure; or
      (2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content
of the visual material, the person promotes visual material described
by Subsection (b) on an Internet website or other forum for publication
that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the
depicted person:
      (1) created or consented to the creation of the visual material; or
      (2) voluntarily transmitted the visual material to the actor.
(f ) It is an affirmative defense to prosecution under Subsection (b) or
(d) that:
      (1) the disclosure or promotion is made in the course of:



                                      23
     (A) lawful and common practices of law enforcement or medical
treatment;
     (B) reporting unlawful activity; or
     (C) a legal proceeding, if the disclosure or promotion is
permitted or required by law;
     (2) the disclosure or promotion 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 or promotion consists of visual
material provided by another person.
     (g) An offense under this section is a Class A misdemeanor.
     (h) If conduct that constitutes an offense under this section also
constitutes an offense under another law, the actor may be prosecuted
under this section, the other law, or both.




                                     24
Appendix 3: Senate Research Center, Bill Analysis, Tex. S.B.
1135, 84th Leg., R.S. (2015)
     BILL ANALYSIS

     Senate Research Center
     S.B. 1135

     By: Garcia et al.

     Criminal Justice

     7/2/2015

     Enrolled

     AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

     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


                                          25
injury, "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.

S.B. 1135 amends current law relating to the civil and criminal liability
for the unlawful disclosure or promotion of certain intimate visual
material and creates an offense.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority
to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Requires that this Act be known as the Relationship
Privacy Act.

SECTION 2. Amends Title 4, Civil Practice and Remedies Code, by
adding Chapter 98B, as follows:

CHAPTER 98B. UNLAWFUL DISCLOSURE OR PROMOTION
OF INTIMATE VISUAL MATERIAL

Sec. 98B.001. DEFINITIONS. Defines “intimate parts,” “promote,”
“sexual conduct,” “visual material,” and “intimate visual material.”



                                      26
Sec. 98B.002. LIABILITY FOR UNLAWFUL DISCLOSURE OR
PROMOTION OF CERTAIN INTIMATE VISUAL MATERIAL. (a)
Provides that a defendant is liable, as provided by this chapter, to a
person depicted in intimate visual material for damages arising from
the disclosure of material if:

(1) the defendant discloses the intimate visual material without the
effective consent of the depicted person;

(2) the intimate visual material was obtained by the defendant or
created under circumstances in which the depicted person had a
reasonable expectation that the material would remain private;

(3) the disclosure of the intimate visual material causes harm to the
depicted person; and

(4) the disclosure of the intimate 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 intimate visual material; or

(B) information or material provided by a third party in response to the
disclosure of the intimate visual material.

(b) Provides that a defendant is liable, as provided by this chapter, to a
person depicted in intimate visual material for damages arising from
the promotion of the material if, knowing the character and content of



                                       27
the material, the defendant promotes intimate visual material
described by Subsection (a) on an Internet website or other forum for
publication that is owned or operated by the defendant.

Sec. 98B.003. DAMAGES. (a) Requires that a claimant who prevails
in a suit under this chapter be awarded:

(1) actual damages, including damages for mental anguish;

(2) court costs; and

(3) reasonable attorney's fees.

(b) Authorizes a claimant who prevails in a suit under this chapter to
recover exemplary damages, in addition to an award under Subsection
(a).

Sec. 98B.004. INJUNCTIVE RELIEF. Authorizes a court in which a
suit is brought under this chapter, on the motion of a party, to issue a
temporary restraining order or a temporary or permanent injunction to
restrain and prevent the disclosure or promotion of intimate visual
material with respect to the person depicted in the material.

(b) Authorizes a court that issues a temporary restraining order or a
temporary or permanent injunction under Subsection (a) to award to
the party who brought the motion damages in the amount of:




                                     28
(1) $1,000 for each violation of the court's order or injunction, if the
disclosure or promotion of intimate visual material is wilful or
intentional; or

(2) $500 for each violation of the court's order or injunction, if the
disclosure or promotion of intimate visual material is not wilful or
intentional.

Sec. 98B.005. CAUSE OF ACTION CUMULATIVE. Provides that
the cause of action created by this chapter is cumulative of any other
remedy provided by common law or statute.

Sec. 98B.006. JURISDICTION. Provides that a court has personal
jurisdiction over a defendant in a suit brought under this chapter if:

(1) the defendant resides in this state;

(2) the claimant who is depicted in the intimate visual material resides
in this state;

(3) the intimate visual material is stored on a server that is located in
this state; or

(4) the intimate visual material is available for view in this state.

Sec. 98B.007. LIBERAL CONSTRUCTION AND APPLICATION;
CERTAIN CONDUCT EXCEPTED. (a) Requires this chapter to be
liberally construed and applied to promote its underlying purpose to




                                        29
protect persons from, and provide adequate remedies to victims of, the
disclosure or promotion of intimate visual material.

(b) Provides that this chapter does not apply to a claim brought against
an interactive computer service, as defined by 47 U.S.C. Section 230,
for a disclosure or promotion consisting of intimate visual material
provided by another person.

SECTION 3. Amends Chapter 21, Penal Code, by adding Section
21.16, as follows:

Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF
INTIMATE VISUAL MATERIAL. (a) Defines “intimate parts,”
“promote,” “sexual conduct,” “simulated,” and “visual material.”

(b) Provides 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




                                     30
(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.

(c) Provides that a person commits an offense if the person
intentionally threatens to disclose, without the consent of the depicted
person, visual material depicting another person with the person’s
intimate parts exposed or engaged in sexual conduct and the actor
makes the threat to obtain a benefit:

(1) in return for not making the disclosure; or

(2) in connection with the threatened disclosure.

(d) Provides that a person commits an offense if, knowing the
character and content of the visual material, the person promotes
visual material described by Subsection (b) on an Internet website or
other forum for publication that is owned or operated by the person.

(e) Provides that it is not a defense to prosecution under this section
that the depicted person:

(1) created or consented to the creation of the visual material; or




                                       31
(2) voluntarily transmitted the visual material to the actor.

(f ) Provides that it is an affirmative defense to prosecution under
Subsection (b) or (d) that:

(1) the disclosure or promotion 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 or promotion is permitted or
required by law;

(2) the disclosure or promotion consists of visual material depicting in
a public or commercial setting only a person’s voluntary exposure of
the person’s intimate parts or 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 or promotion consists of visual
material provided by another person.

(g) Provides that an offense under this section is a Class A
misdemeanor.




                                      32
(h) Authorizes the actor to be prosecuted under this section, the other
law, or both, if conduct that constitutes an offense under this section
also constitutes an offense under another law.

SECTION 4. (a) Provides that Chapter 98B, Civil Practice and
Remedies Code, as added by this Act, applies only to a cause of action
that accrues on or after the effective date of this Act. Provides that a
cause of action that accrues before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.

(b) Provides that Section 21.16, Penal Code, as added by this Act,
applies to visual material disclosed or promoted, or threatened to be
disclosed, on or after the effective date of this Act, regardless of
whether the visual material was created or transmitted to the actor
before, on, or after that date.

SECTION 5. Effective date: September 1, 2015.




                                      33
