                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-16-00359-CR


EX PARTE DEDRICK HOUSTON


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                TRIAL COURT NO. C-213-010777-1343879-AP

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Dedrick Houston appeals the trial court’s denial of his article

11.072 application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann.

art. 11.072 (West 2015). We will affirm.

                         II. PROCEDURAL BACKGROUND

      Houston was indicted on two counts of improper photography or visual

recording for intentionally or knowingly photographing or recording a visual image


      1
       See Tex. R. App. P. 47.4.
of a woman at a location that was a bathroom or private dressing room with

intent to invade the woman’s privacy or with the intent to arouse or gratify the

sexual desire of himself or another person.                 See Tex. Penal Code

Ann. § 21.15(b)(2) (West 2011). Houston later pleaded guilty to the first count,

and the trial court deferred a finding of guilt, placed Houston on three years of

deferred adjudication community supervision, and assessed a $300 fine.

      Houston recently filed an article 11.072 application for writ of habeas

corpus in the trial court, arguing that the statute on which his judgment was

based, section 21.152 of the penal code, was found to be facially unconstitutional

in Ex parte Thompson, 442 S.W.3d 325, 348–51 (Tex. Crim. App. 2014). The

trial court denied Houston’s habeas application.

          III. THE TRIAL COURT’S DENIAL OF HOUSTON’S HABEAS APPLICATION

      Houston is appealing the trial court’s denial of his article 11.072 application

for writ of habeas corpus.3



      2
        The legislature amended this statute in 2015. See Tex. Penal Code Ann.
§ 21.15 (West Supp. 2016). All references in this opinion to section 21.15 will be
to the prior version of the statute, the version upon which the trial court’s order of
deferred adjudication rests. See Act of June 20, 2003, 78th Leg., R.S., ch. 500,
§ 1, 2003 Tex. Sess. Law Serv. 500 (amended 2015) (current version at Tex.
Penal Code Ann. § 21.15).
      3
       In an appeal from a trial court’s denial of an application for writ of habeas
corpus, an appellate court may, but is not required to, request briefing from the
parties. See Tex. R. App. P. 31.1 (“When the appellate court receives the
record, the court will—if it desires briefs—set the time for filing briefs, and will set
the appeal for submission.”). As the issue presented here—whether Thompson’s
holding should void the judgment entered against Houston—was adequately

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                             A. Standard of Review

      We generally review a trial court’s decision to deny an article 11.072

habeas application for an abuse of discretion.     Chacon v. State, No. 02-16-

00012-CR, 2016 WL 5443358, at *1 (Tex. App.—Fort Worth Sept. 29, 2016, no

pet. h.) (mem. op., not designated for publication); Ex parte Jessep, 281 S.W.3d

675, 678 (Tex. App.—Amarillo 2009, pet. ref’d). Viewing the evidence in the light

most favorable to the trial court’s ruling, we determine whether the trial court

acted without reference to any guiding rules or principles. Chacon, 2016 WL

5443358, at *1; Jessep, 281 S.W.3d at 678.

                             B. Thompson’s Holding

      In his habeas application, Houston argues that his conviction is void

because of the court of criminal appeals’s holding in Thompson.        Before we

address the holding in Thompson, we think it is important to note that the statute

at issue here and in Thompson—the applicable version of section 21.15 of the

penal code—contained different elements depending on whether the images

were taken in a bathroom or private dressing room (section 21.15(b)(2)) or

whether they were taken at a location other than a bathroom or private dressing

room (section 21.15(b)(1)). See Tex. Penal Code Ann. § 21.15. Section 21.15

stated, in pertinent part,




presented at the trial level through Houston’s habeas application and the State’s
response, we submitted this case without briefing.


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             (b)   A person commits an offense if the person:

                   (1)   photographs or by videotape or other electronic
                   means records, broadcasts, or transmits a visual image
                   of another at a location that is not a bathroom or private
                   dressing room:

                         (A)   without the other person’s consent; and

                         (B) with intent to arouse or gratify the sexual
                         desire of any person;

                   (2)   photographs or by videotape or other electronic
                   means records, broadcasts, or transmits a visual image
                   of another at a location that is a bathroom or private
                   dressing room:

                         (A)   without the other person’s consent; and

                         (B)   with intent to:

                               (i)  invade the privacy of the other
                               person; or

                               (ii)  arouse or gratify the sexual desire of
                               any person[.]

Id. (emphasis added).

      In Thompson, the appellant was charged under section 21.15(b)(1) for

taking photographs of a person without consent at a location that was not a

bathroom or private dressing room. 442 S.W.3d at 330. The appellant argued

that section 21.15(b)(1) was unconstitutional on its face because it violated the

free speech clause of the First Amendment. Id. The court of criminal appeals

held that strict scrutiny had not been met because section 21.15(b)(1) was “not

the least restrictive means of protecting the substantial privacy interests in



                                        4
question.” Id. In reaching that holding, the court referenced the fact that by

excluding the bathroom or private dressing room element and by failing to

include any required intent to invade the privacy of another, section 21.15(b)(1)

was designed to be a general “catch-all” provision. Id. at 348–49. The court then

contrasted section 21.15(b)(1) with section 21.15(b)(2), noting that section

21.15(b)(2), in addition to including the bathroom or private dressing room

element, also included a culpable mental state concerning the intent to invade

the privacy of another. Id. at 349. The court went on to state that in contrast to

section 21.15(b)(1), section 21.15(b)(2) “is in fact narrowly drawn to protect

substantial privacy interests.” Id. at 348–49.

             C. Application of Thompson’s Holding to this Case

      Houston bases his application entirely on the fact that the court of criminal

appeals found section 21.15(b)(1) to be unconstitutional in Thompson.4         But

Houston was not charged under section 21.15(b)(1); rather, because his alleged

crime concerned photographs or recordings taken in a bathroom or private

      4
        Houston references two other cases, Porterie v. State, No. 03-14-00214-
CR, 2015 WL 1514530, at *1 (Tex. App.—Austin Mar. 27, 2015, no pet.) (mem.
op., not designated for publication) and Shohreh v. State, No. 05-14-00134-CR,
2014 WL 5804190, at *1 (Tex. App.—Dallas Nov. 10, 2014, no pet.) (mem. op.,
not designated for publication), that discuss Thompson and the constitutionality
of section 21.15(b)(1). Neither of those cases, however, involved the application
of section 21.15(b)(2), and both cases make clear that Thompson only
invalidated a portion of section 21.15, not section 21.15 in its entirety. See
Porterie, 2015 WL 1514530, at *1 (“[T]he court of criminal appeals held that the
portion of the statute set out above [i.e., section 21.15(b)(1)] was facially
unconstitutional.”); Shohreh, 2014 WL 5804190, at *1 (“[T]he court of criminal
appeals held section 21.15(b)(1) facially unconstitutional.”).


                                         5
dressing room, Houston was charged under section 21.15(b)(2). See Tex. Penal

Code Ann. § 21.15(b)(2). In Thompson, the court of criminal appeals specifically

stated that section 21.15(b)(2) was “narrowly drawn to protect substantial privacy

interests” and declared only section 21.15(b)(1) facially unconstitutional.      442

S.W.3d at 348–49. Because the court of criminal appeals’ holding in Thompson

did nothing to invalidate section 21.15(b)(2), the provision applied to Houston, the

trial court did not abuse its discretion in denying Houston’s application for writ of

habeas corpus.

                                 IV. CONCLUSION

      We affirm the trial court’s order denying Houston’s application for writ of

habeas corpus.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 27, 2016




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