Affirmed and Memorandum Opinion filed October 1, 2015.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00951-CR

                       EX PARTE BRENT WAYNE JUSTICE


                       On Appeal from the 176th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1385768

                    MEMORANDUM                           OPINION


       This appeal arises from the denial of an application for a pretrial writ of
habeas corpus. Because we determine that appellant’s claim is not cognizable by
pretrial writ of habeas corpus, we affirm.

       Appellant is charged by indictment with the felony offense of cruelty to a
non-livestock animal. See Tex. Penal Code § 42.092(b)(1).1 Section 42.092(b)(1)

       1
          Specifically, the indictment alleges that appellant “unlawfully, intentionally and
knowingly, torture[d] an animal, namely, a dog observed in videos entitled “Puppy I and II,” by
cutting the dog’s neck with a knife.” Further, the State has alleged use or exhibition of a deadly
weapon during the commission of the offense or the immediate flight therefrom, and that
provides that a person commits an offense if the person intentionally, knowingly,
or recklessly “tortures an animal or in a cruel manner kills or causes serious bodily
injury to an animal.” Appellant filed an application for a pretrial writ of habeas
corpus alleging the statute underlying his indictment is unconstitutional on its
face.2 The trial court denied appellant’s application.

       Generally, a pretrial habeas may not be used to challenge the sufficiency of
the indictment or to construe the meaning and application of the criminal statute
defining the charged offense. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010). A pretrial habeas may be used, however, to raise a claim that the statute
under which an applicant is being prosecuted is unconstitutional on its face. Id.
(also stating that pretrial habeas may not be used to bring an as-applied challenge
to statute’s constitutionality); Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.
App. 2001).

       Even if an appellant calls his claim a facial challenge, we should refuse to
consider the merits of the claim if it is in fact an as-applied challenge. Ex parte
Ragston, 402 S.W.3d 472, 476 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 424
S.W.3d 49 (Tex. Crim. App. 2014). Therefore, we must first determine whether
appellant’s application for pretrial writ is a challenge to the statute on its face or a
challenge to the statute as it is being applied to appellant. By this pretrial writ of
habeas corpus, appellant alleges that (a) the State is attempting to expand the
language of the statute; (b) Section 42.092(b)(1) is preempted by 7 U.S.C.A. §
1902(b); and (c) Section 42.092(b)(1) is “content-based discrimination in violation
of the First Amendment and is thus facially invalid.”

appellant has been previously finally convicted of two other felony offenses. See Tex. Penal
Code §§ 12.35(c)(1) and 12.425(c).
       2
          Appellant also filed a motion to dismiss alleging the statute is unconstitutional as
applied, urging many of the same arguments presented here.

                                              2
         A facial challenge to the constitutionality of a statute is a challenge that the
statute always operates unconstitutionally, in all possible circumstances. State v.
Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); State ex rel. Lykos v. Fine,
330 S.W.3d 904, 908 (Tex. Crim. App. 2011); see also Santikos v. State, 836
S.W.2d 631, 633 (Tex. Crim. App. 1992) (“A facial challenge to a statute is the
most difficult challenge to mount successfully because the challenger must
establish that no set of circumstances exists under which the statute will be
valid.”). In such a challenge, we are to consider the statute only as it is written, not
how it operates in practice. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App.
2015).

         By contrast, an as-applied challenge is brought during or after a trial on the
merits, because it is only then that the trial judge and reviewing courts have the
particular facts and circumstances of the case needed to determine whether the
statute or law has been applied in an unconstitutional manner. State ex rel. Lykos,
330 S.W.3d at 910.

         We are to consider only those arguments presented to the trial court either in
the appellant’s written application or at the hearing. See Tex. R. App. P. 33.1; State
v. Romero, 962 S.W.2d 143, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Accordingly, we do not decide those issues raised for the first time in appellant’s
brief.

         Appellant first urges that the State is expanding the definition of animal
cruelty by attempting to “shoehorn the humane slaughter or unnecessary killing of
an animal under the [rubric] of torture.” This challenge depends entirely upon the
application of the statute to the facts alleged against appellant and constitutes an
as-applied challenge. Appellant’s argument arises from his claim that cutting a
dog’s throat with a knife is humane, as defined by Section 1902(b) of Title 7 of the

                                             3
United States Code, “Humane Methods of Livestock Slaughter.” However, the
language of Section 42.092(b)(1) does not contain any prohibition on the method
of killing the animal. Whether the State is misapplying Section 42.092(b)(1) by
charging appellant with animal cruelty for killing an animal with a knife is
necessarily an as-applied challenge.

      Appellant next urges in a related challenge that because his conduct,
specifically, cutting the dog’s throat with a knife, was humane, Section
42.092(b)(1) conflicts with Section 1902(b) and must, therefore, be facially
preempted. Section 1902(b) provides, in pertinent part, the following method of
slaughtering and handling are “hereby found to be humane: . . . (b) by slaughtering
in accordance with the ritual requirements of the Jewish faith or any other religious
faith that prescribes a method of slaughter whereby the animal suffers loss of
consciousness by anemia of the brain caused by the simultaneous and
instantaneous severance of the carotid arteries with a sharp instrument and
handling in connection with such slaughtering.” Again, his purported facial
challenge depends upon the method by which it is alleged that appellant killed the
dog. As such, and without regard to whether Section 1902(b) pertains in any way
to non-livestock or animal cruelty, appellant’s argument depends upon the unique
facts of this case. As such, it is a challenge to the statute as applied to appellant.

      Finally, appellant complains that Section 42.092(b)(1) is content-based
discrimination in violation of the First Amendment and is thus facially invalid.
Again, however, appellant’s arguments depend entirely upon the application of the
statute to appellant himself, not the language of the statute. The only argument
appellant makes to support his “content-based” allegation about the statute is that
he is being prosecuted for animal cruelty “because [the] animal was allegedly
killed to make [a] slaughter video for sexual gratification.” The United States

                                            4
Supreme Court opinion in U.S. v. Stevens, 130 S. Ct. 1577 (2009), relied upon by
appellant, best explains the difference between animal cruelty laws enacted by all
50 States and the District of Columbia and animal crush video laws that implicate
Free Speech — the former category pertains to the underlying acts harmful to
animals while the latter pertains to portrayals of such conduct.3 Id. at 1582. In this
action, appellant is not charged with creating and distributing animal crush videos.4
Appellant is charged with a violation of the animal cruelty law — Section 42.092.
Appellant offers no other argument, and we find none, for construing Section
42.092(b)(1) as regulating any content-based speech. Appellant’s speech-based
complaint arises from the specific factual allegations against him alone. As such, it
is an as-applied challenge.

       Because we find that appellant is complaining solely about the application of
Section 42.092(b)(1) to him rather than all applications of the statute, we conclude
that his challenge to the constitutionality of the statute at issue is not cognizable on
a pretrial writ. See Ex parte Ellis, 309 S.W.3d at 81–82; Ex parte Weise, 55 S.W.3d
at 621. We overrule appellant’s issues and affirm the trial court’s order denying
habeas relief.


                                            /s/       Sharon McCally
                                                      Justice


Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
       3
         Generally speaking, animal crush videos are films that feature a person or another
animal crushing or trampling another smaller animal to death.
       4
         Appellant is, however, under federal indictment for creating and distributing animal
crush videos. The Fifth Circuit Court of Appeals recently rejected appellant’s motion to dismiss
on First Amendment grounds. See U.S. v. Richards, 755 F.3d 269 (5th Cir. 2014), cert. denied,
135 S. Ct. 1547 (2015).

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