                                                                           PD-1637-14
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 1/8/2015 6:55:46 PM
                                                         Accepted 1/16/2015 12:04:22 PM
JANUARY 16, 2015               PD-1637-14                                   ABEL ACOSTA
                          NO. ____________                                          CLERK



                     IN THE
       COURT OF CRIMINAL APPEALS OF TEXAS


              EX PARTE
      CURTIS WAYNE HUDDLESTON


             APPELLANT’S PETITION
           FOR DISCRETIONARY REVIEW


     Appeal from the 21st/335th Judicial District Court, Burleson and
                     Washington Counties of Texas
                  Trial Court Cause No. CR14,220 and
  Cause Number 10-14-00073-CR in the Tenth Court of Appeals of Texas


             LAW OFFICE OF BENTON ROSS WATSON
                        120 E. 1st Street
                         P.O. Box 1000
                    Cameron, Texas 76520
                        (254) 307-8181
                  (254) 231-0212—Facsimile
                  ross@texastopdefense.com
                    State Bar No. 24077591


                   ORAL ARGUMENT REQUESTED
              NAMES OF THE PARTIES TO THE FINAL JUDGMENT



                                                                STATE OF TEXAS
                                              Ms. Lauren Haevischer
                                   Assistant Burleson County District Attorneys
                                    Burleson County District Attorney’s Office
                                             100 West Buck, Suite 407
                                              Caldwell, Texas 77836


                                          PETITIONER’S TRIAL COUNSEL
                                                                 Clyde W. Chandler
                                                                  120 E. 1st Street
                                                                   P.O. Box 888
                                                                Cameron, Texas 76520


                                                PETITIONER’S COUNSEL FOR
                                         THE WRIT HEARING AND APPEAL
                                                                 Benton Ross Watson
                                                                   120 E. 1st Street
                                                                   P.O. Box 1000
                                                                Cameron, Texas 76520


                                                        TRIAL COURT JUDGE
                                           The Honorable Reva Towslee-Corbett
                                                335th District Court Judge
                                               100 W. Buck Street, Ste. 411
                                                 Caldwell, Texas 77836
                                                         	  




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                                                        TABLE OF CONTENTS
       NAMES OF PARTIES TO THE FINAL JUDGMENT ........................... I
       INDEX OF AUTHORITIES .................................................................. IV
       STATEMENT REGARDING ORAL ARGUMENT ........................... VII
       STATEMENT OF THE CASE ............................................................. VII
       STATEMENT OF PROCEDURAL HISTORY ................................. VIII
       QUESTIONS PRESENTED FOR REVIEW.......................................... X
       I.          Whether the Waco Court of Appeals may deny standing under
                   the First Amendment, and Equal Protection Clause when it does
                   not address standing under First Amendment law, and does not
                   mention equal protection.
       II.         Whether the Waco Court of Appeals may find pretrial habeas
                   constitutional challenges noncognizable when that finding
                   violates well-established precedent of Texas and the United
                   States Supreme Court.
       STATEMENT OF THE FACTS .............................................................. 1
       I. QUESTION ONE RESTATED: ........................................................... 2
              The Waco Court failed to address all issues, applied incorrect
              legal standards, and ignored well-established law. ............................. 2
       A. Reasons for Granting Review: ............................................................ 2
       B. Summary of Facts & Basis for Argument. .......................................... 3
       C. Argument. ........................................................................................... 4
       1. The Waco Court did not use First Amendment law to decide the
          cognizability of First Amendment claims ........................................... 4
       2. The Waco Court completely ignored Equal Protection claims. .......... 5
       II. QUESTION TWO RESTATED: ........................................................ 7
              The Waco Court of Appeals’ reasoning and conclusion are
              contrary to established law. ................................................................. 7
       A. Reasons for Granting Review: ............................................................ 7
       B. Summary of Facts & Basis for Argument. .......................................... 8

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       C. Argument. ......................................................................................... 10
       1. Statutory applications, meanings, and justifications must be
           addressed when First Amendment or other fundamental rights
           are implicated. ................................................................................... 10
        a. First Amendment attacks always analyze applications,
           meanings, and justifications. ............................................................. 10
         b. Claims based on fundamental rights and equal protection also
            analyze applications, meanings, and justifications. .......................... 13
         c. Mr. Huddleston’s challenges are cognizable. ................................... 14
          1) Statutory Complaints .................................................................... 14
          2) The underlying facts do not matter. .............................................. 18
       2. The Waco Court of Appeals disposed of this case in a manner
          that threatens the reliability of our justice system............................. 20
       PRAYER ................................................................................................ 21
      CERTIFICATE OF SERVICE .............................................................. 21
      CERTIFICATE OF COMPLIANCE.......................................................23
      APPENDICES........................................................................................ 24
        Ex parte Huddleston,
            No. 10-14-00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—
            Waco [10th Dist.] Sept. 18, 2014) (mem. op., not designated for
            publication) ............................................................................... A-1

              Order Denying Rehearing ................................................................ A-2




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                                                      INDEX OF AUTHORITIES


United States Supreme Court Cases
New York v. Ferber,
  458 U.S. 747 (1982) ............................................................................ 12, 14
Osborne v. Ohio,
  495 U.S. 103 (1990) ............................................................................ 12, 14
R.A.V. v. St. Paul,
  505 U.S. 377 (1992) .................................................................................... 6
Sandstrom v. Montana,
  442 U.S. 510 (1979). ................................................................................... 6
United States v. Williams,
  553 U.S. 285 (2008). ............................................................................. 5, 13
Zablocki v. Redhail,
  434 U.S. 374 (1978) .................................................................................... 6


Texas Court of Criminal Appeals Cases
Casarez v. State,
  913 S.W.2d 468 (Tex. Crim. App. 1994).................................................... 6
Coronado v. State,
  351 S.W.3d 315 (Tex. Crim. App. 2011)................................................ 3, 6
Ex parte Ellis,
  309 S.W.3d 71 (Tex. Crim. App. 2010).......................... 3, 4, 10, 11, 12, 17
Ex parte George,
  152 Tex. Crim. 465, 215 S.W.2d 170 (1948) ....................................... 5, 13
Ex parte Lo,
  424 S.W.3d 10 (Tex. Crim. App. 2013)...................................... 4, 5, 10, 11
Ex parte McIver,
  586 S.W.2d 851 (Tex. Crim. App. 1979).................................................. 15
Ex parte Thompson,
  442 S.W.3d 325 (Tex. Crim. App. 2014).................................. 4, 11, 12, 14
Ex parte Smith,
  185 S.W.3d 887 (Tex. Crim. App. 2006).................................................... 3
Ex parte Tigner,
  139 Tex. Crim. 452, 132 S.W.2d 885 (1939) ....................................... 5, 13
Ex parte Wiese,
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  55 S.W.3d 617 (Tex. Crim. App. 2001) ..................................................... 3
Long v. State,
  931 S.W.2d 285 (Tex. Crim. App. 1996),............................................. 5, 16
Wise v. State,
  364 S.W.3d 900 (Tex. Crim. App. 2012).................................................. 16


Texas Appellate Court Cases
Ex parte Barnett,
  424 S.W.3d 809 (Tex. App.—Waco [10th Dist.] 2014, no pet.) ........... 6, 13
Ex parte Huddleston,
  No. 10-14-00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—Waco [10th
  Dist.] Sept. 18, 2014) (mem. op., not designated for publication)..... passim
Ex parte Morales,
  212 S.W.3d 483 (Tex. App.—Austin 2006, pet. ref’d) ........................ 6, 13
Ex parte Zavala,
  421 S.W.3d 227 (Tex. App.—San Antonio 2013, pet. ref’d) ................... 17
Goyzueta v. State,
  266 S.W.3d 126 (Tex. App.—Fort Worth 2008, no pet.) .......................... 5
In re Shaw,
  204 S.W.3d 9 (Tex. App.—Texarkana 2006, pet. ref’d) ............................ 6
Watson v. State,
  No. 10-02-163-CR, 2003 Tex. App. LEXIS 6711
  (Tex. App.—Waco [10th Dist.] July 30, 2003) (mem. op., not designated
  for publication).......................................................................................... 14
White v. State,
  50 S.W.3d 31 (Tex. App.—Waco [10th Dist.] 2001, pet. ref’d) .......... 5, 12


Texas Constitution
Tex. Const. art. I, §§ 3,8, 9, 10, 13, 15, 18, 19 & 27. .................................. VII

United States Constitution
U.S. Const. amend. I .............................................................................. passim
U.S. Const. amend. XIV .......................................................................... VII, 1
U.S. Const. amend. I, IV, V, VIII, & XIV .................................................. VII
Texas Statutes
Tex. Penal Code § 1.07(a)(39) ..................................................................... 16
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Tex. Penal Code § 6.01(b) ............................................................................ 16
Tex. Penal Code § 6.03(b) ............................................................................ 15
Tex. Penal Code § 37.09 .................................................................. 12, 17, 20
Tex. Penal Code § 43.26 (2011) ............................................................ passim
Tex. Penal Code § 43.26 (a)(1)(2013) ......................................... VII, 1, 17, 20
Tex. Penal Code § 43.261 ...................................................... 8, 15, 17, 18, 20
Tex. Code Crim. Proc. Ann. art. 1.04. ......................................................... VII
Tex. Code Crim. Proc. Ann. art. 45.0216(b)(2) ........................................... 13
Tex. Code Crim. Proc. Ann. arts. 62.001(5)(B) ........................................... 13

Texas Rules of Appellate Procedure
TEX. R. APP. P. 47.1. ....................................................................................... 2
TEX. R. APP. P. 66.3 (a) .............................................................................. 2, 6
TEX. R. APP. P. 66.3 (c). ............................................................................. 2, 6
TEX. R. APP. P. 66.3 (e) .................................................................................. 6
TEX. R. APP. P. 66.3 (f) ............................................................................... 2, 6


Texas Legislative History
House Res. Org., Bill Analysis, S.B. 407, 82nd Leg., R.S. 4, ¶ 6 (2011) ..... 14


Miscellaneous
George Orwell, 1984 bk. 1, ch. 8 ................................................................. 14




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                           STATEMENT REGARDING ORAL ARGUMENT

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

              Petitioner requests that oral arguments be granted. Arguments would

benefit the Court because a statute was challenged using several points of

law that are issues of first impression, and the question is whether the points

raise facial or as-applied challenges.



                                                   STATEMENT OF THE CASE

              This case primarily involves the issue of whether challenges to the

constitutionality of a statute are cognizable on pretrial writ of habeas corpus.

The writ challenges the constitutionality of the child pornography statute.

TEX. PENAL CODE § 43.26 (2011), amended by TEX. PENAL CODE § 43.26

(2013) (hereafter “43.26”).




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                                 STATEMENT OF PROCEDURAL HISTORY


              Mr. Huddleston was arrested and jailed on allegations of online

solicitation of a minor.1 On August 14, 2012, Mr. Huddleston was indicted

in cause number CR 14,220 for possession of child pornography.2

              Mr. Huddleston filed an Application for Writ of Habeas Corpus on

February 18, 2014, 3 and a supplement to the application on March 3, 2014.4

Mr. Huddleston’s application urged the trial court to declare the child

pornography statute, Texas Penal Code § 43.26 (hereafter “43.26”),

unconstitutional under vagueness, overbreadth, and equal protection, as

encompassed within the Texas Constitution, 5 similar portions of the United

States Constitution, 6 and Texas Code of Criminal Procedure.7

              Judge Reva Towslee-Corbett of the 335th Judicial District Court

issued the writ. At the writ hearing on March 3, 2014, the requested relief




1
    (I C.R. p. 8)
2
    (I. C.R. p. 6)
3
    (I C.R. 35-87)
4
    (I C.R. 90-105)
5
    Tex. Const. art. I, §§ 3,8, 9, 10, 13, 15, 18, 19 & 27.
6
    U.S. Const. amend. I, IV, V, VIII, & XIV.
7
    Tex. Code Crim. Proc. Ann. art. 1.04.
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was “denied in its entirety.” 8

              On March 3, 2014, Mr. Huddleston filed Notice of Appeal, 9 and

appeal was taken to the 10th District Court of Appeals.

              On September 18, 2014, Justice Scoggins authored a memorandum

opinion affirming the trial court’s decision. Ex parte Huddleston, No. 10-14-

00073, 2014 Tex. App. LEXIS 10396 (Tex. App.—Waco [10th Dist.] Sept.

18, 2014) (mem. op., not designated for publication). (Appendix A-1)

              Petitioner filed a Motion for Rehearing on September 29, 2014. On

November 12, 2014, the Waco Court of Appeals denied Petitioner’s

Motion for Rehearing. See Order Denying Rehearing. (App. A-2.)

              Chief Justice Gray dissented from the majority’s denial of

rehearing. Id.

              Appellant a filed Motion to Extend Time for Filing Petition for

Discretionary Review on December 15, 2014. Appellant now files Petition

for Discretionary Review asking this Court to remand.




8
    (II R.R. 19, ll. 15, 21). See also (I C.R. 106)
9
    (I C.R. 108, 109, and 112)
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                                    QUESTIONS PRESENTED FOR REVIEW




   I.         Whether the Waco Court of Appeals may deny standing under the
              First Amendment, and Equal Protection Clause when it does not
              address standing under First Amendment law, and does not
              mention equal protection.

  II.         Whether the Waco Court of Appeals may find pretrial habeas
              constitutional challenges noncognizable when that finding violates
              well-established precedent of Texas and the United States Supreme
              Court.




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                                                 STATEMENT OF THE FACTS

              By pretrial writ of habeas corpus, Mr. Huddleston attacked the

constitutionality of the child pornography statute (hereafter “43.26”)10 under

the First Amendment, and Due Process and Equal Protection Clauses of the

Fourteenth Amendment.

              The Waco Court of Appeals said Mr. Huddleston did not have

standing because his claims were noncognizable on pretrial habeas review.

Ex parte Huddleston, 2014 Tex. App. LEXIS 10396 at *3-4. (App. A-1)

              Rehearing was summarily denied. Order Denying Rehearing. (App.

A-2) Chief Justice Gray dissented because he was inclined to rehear the case

on the merits. Id.




10
     TEX. PENAL CODE § 43.26 (2011), amended by TEX. PENAL CODE § 43.26(a)(1) (2013).


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I. QUESTION ONE RESTATED:
The Waco Court of Appeals did not address all issues, applied incorrect
legal standards, and ignored well-established law.


A. REASONS FOR GRANTING REVIEW:

              The Waco Court of Appeals failed to address “every issue raised and

necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1.

              The Waco Court’s holding conflicts with important decisions of the

United States Supreme Court, this Court, and other Texas appellate courts.

TEX. R. APP. P. 66.3 (a), (c).

              The Waco Court has so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of this Court’s power

of supervision. TEX. R. APP. P. 66.3 (f).




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B. SUMMARY OF FACTS & BASIS FOR ARGUMENT.

              Mr. Huddleston attacked 43.26 based on the First Amendment and

equal protection. He alleged strict scrutiny, vagueness, overbreadth, and

claims of infringement, discrimination, and disparate treatment of

fundamental rights. (For Appellant’s claims, see, infra, at 14-19.)

              The Waco Court used four opinions11 to support its decision to deny

Mr. Huddleston standing.12 Only half of one opinion involves the First

Amendment, but that half was not used, nor was it cited.13 Equal protection

was not mentioned.

              Because the cognizability issue requires a different analysis when the

First Amendment is involved, that issue could not have been decided based

on non-First Amendment law. Because equal protection was not mentioned,

there could not have been a final disposition.

              Because all of these challenges arise out of important constitutional

doctrines defined by higher courts, the Waco Court “[did] not have the

luxury or the liberty to ignore binding precedent.” Coronado v. State, 351

S.W.3d 315, 317 n.5 (Tex. Crim. App. 2011).


11
  Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010); Ex parte Smith, 185 S.W.3d
887 (Tex. Crim. App. 2006); Ex parte Wiese, 55 S.W.3d 617 (Tex. Crim. App. 2001); Ex
parte Barnett, 424 S.W.3d 809 (Tex. App.—Waco [10th Dist.] 2014, no pet.).
12
     Huddleston, 2014 Tex. App. LEXIS 10396 at *2-4.
13
     Id. at *1-3 (citing Ex parte Ellis, 309 S.W.3d at 79, 80).

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C. ARGUMENT.

1.            The Waco Court did not use First Amendment law to decide the
              cognizability of First Amendment claims.

              The First Amendment often demands courts apply the “most exacting

scrutiny…” Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2013). There

is no way the Waco Court honestly judged—much less strictly scrutinized—

this case when it failed to even start off with the correct rule of law.

              The only opinion referenced by the Waco Court that involves the First

Amendment is Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010). Ellis

first deals with money laundering, which has nothing to do with the First

Amendment. 309 S.W.3d at 79-82. Ellis then discusses campaign

contributions, which do implicate the First Amendment. Id. at 82-92.

               The Waco Court based its decision only on the money-laundering

portion; thus, the legal standards supporting its decision are only based on

non-First Amendment law. Huddleston, 2014 Tex. App. LEXIS 10396 at *1-

3 (citing Ellis, 309 S.W.3d at 79-80).

              First Amendment vagueness and overbreadth claims are analyzed

differently than non-First Amendment attacks, and are unquestionably

cognizable on pretrial habeas. Id. at 80, 82-92. See Ex parte Thompson, 442

S.W.3d 325, 333, 349-351 (Tex. Crim. App. 2014) (finding improper




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photography statute overbroad on pretrial habeas); Ex parte Lo, 424 S.W.3d

at 14 (finding online solicitation of minor law overbroad on pretrial habeas).

              Further, overbreadth is generally recognized only in the First

Amendment context. Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—

Fort Worth 2008, no pet.). Thus, overbreadth claims cannot be finally

disposed of by ignoring First Amendment law.

               Moreover, the First Amendment vagueness doctrine “demands

a greater degree of specificity than in other contexts,” Long v. State,

931 S.W.2d 285, 287 (Tex. Crim. App. 1996), utilizes the same

overbreadth standard, White v. State, 50 S.W.3d 31, 44 & n.13 (Tex.

App.—Waco [10th Dist.] 2001, pet. ref’d), and is often entwined with

overbreadth. United States v. Williams, 553 U.S. 285, 304 (2008).

Therefore, the vagueness issue also could not have been properly

disposed of by ignoring First Amendment law.



2.            The Waco Court completely ignored claims based on equal
              protection and fundamental rights.

              Equal protection challenges are reviewable by pretrial writ of habeas

corpus. See Ex parte George, 152 Tex. Crim. 465, 215 S.W.2d 170 (1948)

(criminal licensing law); Ex parte Tigner, 139 Tex. Crim. 452, 132 S.W.2d

885 (1939) (criminal anti-trust law).

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              Pretrial habeas equal protection claims fall under strict scrutiny when

they implicate fundamental rights. Ex parte Morales, 212 S.W.3d 483, 500

(Tex. App.—Austin 2006, pet. ref’d).14 But see In re Shaw, 204 S.W.3d 9,

17 (Tex. App.—Texarkana 2006, pet. ref’d) (questioning cognizability, yet,

deciding anyway).

              None of these claims were mentioned. If the 10th Court thought none

were cognizable, it at least had to say that (and explain why) because that

was necessary to dispose of the claims, and it “[did] not have the luxury or

the liberty to ignore binding precedent.” Coronado, 351 S.W.3d at 317 n.5.




14
  See Casarez v. State, 913 S.W.2d 468, 473, 477 n.13 (Tex. Crim. App. 1994)
(discussing strict scrutiny in fundamental right context of equal protection); R.A.V. v. St.
Paul, 505 U.S. 377, 384 n.4 (1992) (in relation to First Amendment); Zablocki v. Redhail
434 U.S. 374 (1978) (right to marry); Sandstrom v. Montana, 442 U.S. 510, 512 (1979)
(burden of proof).

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II. QUESTION TWO RESTATED:
The Waco Court of Appeals’ reasoning and conclusion are contrary to
established law.


A. REASONS FOR GRANTING REVIEW:

              The Waco Court’s reason for finding important constitutional claims

noncognizable completely contravenes well-established law pronounced by

the United States Supreme Court, this Court, and other Texas appellate

courts. TEX. R. APP. P. 66.3 (a), (c).

              The Waco Court’s ill-formulated reasoning, contradictory

conclusions, stubborn indifference, and hastily presumptive denial of

rehearing all scream out for this Court to exercise its full powers of

supervision. TEX. R. APP. P. 66.3 (f).

              The justices also disagree on a material point necessary to the court’s

decision. TEX. R. APP. P. 66.3 (e).




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B. SUMMARY OF FACTS & BASIS FOR ARGUMENT.

              Mr. Huddleston attacked intent and conduct features of 43.26(a)(1)-

(2), and their intensification due to §§ 37.09(c-1) (tampering with evidence

defense for minors), 43.26(h) (law enforcement defense), and 43.261(f)

(minor deletion defense). He attacked age definitions in 43.26(a)(1) and (c).

              He discussed legislative intent and history for 43.26 and 43.261;

confronted the lack of necessary protections in 43.26 provided for in other

laws; and considered 43.26’s lack of underlying justifications.

              The State argued that the attacks do not apply to the facts of this case.

(See, infra, at 18.)

              Yet, the 10th Court found the attacks to be noncognizable, as-applied

challenges. Huddleston, 2014 Tex. App. LEXIS 10396 at *4. It also refused

to address legislative history, definitional inconsistency, and underlying

justifications because it felt “[p]retrial 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.” Id. at 2.

            After receiving notice that incorrect legal standards were employed to

reach an incorrect conclusion, the 10th Court claimed (in one sentence) that

it does not matter since similar statutes were found facially constitutional in

other cases. See Order Denying Rehearing. (App. A-2).


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              Chief Justice Gray dissented, however, and was inclined to rehear the

case on the merits as a facial challenge to the statute’s constitutionality. Id.




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C. ARGUMENT.

1.            The Waco Court wrongly determined that statutory applications,
              meanings, and justifications could not be considered when First
              Amendment or other fundamental rights are implicated.

              The Waco Court clearly erred by deciding that Mr. Huddleston did not

have the right to challenge applications, meanings, or underlying

justifications of a statute on pretrial habeas review. One, First Amendment

attacks under strict scrutiny, overbreadth, and vagueness always assess

statutory meanings, justifications, and applications. Two, strict scrutiny

requires the same analysis when fundamental rights are implicated, and

equal protection necessarily requires assessment of treatment toward other

classes and the justification(s) for such treatment.


       a. First Amendment attacks must address applications, meanings, and
          justifications.
              Both Ex parte Lo15 and the second half of Ex parte Ellis16determine

First Amendment overbreadth and vagueness challenges on pretrial habeas.

Both consider intent and scienter elements.17 Both consider the bearing other

statutory provisions have on the provisions at issue.18 Neither considers First

Amendment vagueness or overbreadth in a vacuum.



15
     424 S.W.3d at 14 (finding online solicitation of minor statute overbroad).
16
     309 S.W.3d at 82-92 (deciding election code provisions not vague or overbroad).
17
     Lo, 424 S.W.3d at 23; Ellis, 309 S.W.3d at 89-90.

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              Ex parte Lo thoroughly discusses statutory justifications, objectives,

and applications based on strict scrutiny, confirming that speech laws “must

be (1) necessary to serve a (2) compelling state interest and (3) narrowly

drawn.” 424 S.W.3d at 15. It also defines the stringent demands of being

“narrowly drawn.” Id.

              Ex Parte Thompson follows the same framework on a pretrial habeas

First Amendment challenge. 442 S.W.3d 325 (Tex. Crim. App. 2014). In

Thompson, this Court assesses the “meaning of consent in other contexts and

the wide applicability of the Penal Code definition of ‘consent’ to statutes in

the Code and to statutes outside the Code”19; analyzes how any “narrowing

construction” might be applied; 20 considers quantity of expressive acts and

subsets of expression penalized; 21 looks at possible “secondary effects”

underlying the law; 22 and notes that the State’s meaning “could have any

number of unanticipated and unwelcome consequences when applied in

other contexts.” Id. at 341.




18
  Lo, 424 S.W.3d at 14-18, 19-20 & nn.40-42, 23-24 (discussing numerous provisions);
Ellis, 309 S.W.3d at 86 (“several provisions of the Election Code.”).
19
     442 S.W.3d at 342.
20
     Id. at 339-342.
21
     Id. at 347.
22
     Id. at 345-346.

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              Thompson also requires courts to consider whether a law “seeks to

restrict and punish speech based on its content…” Id. at 15. Further,

Thompson teaches that the First Amendment protects visual images because

they are “inherently expressive,” and applies just the same to their

“purposeful creation…” Id. at 336-37. It even recognizes the need for

scrutinizing child pornography laws. Id. at 335 (quoting New York v. Ferber,

458 U.S. 747, 756 (1982)).

              In fact, all First Amendment overbreadth challenges look at how

statutory language is applied—even to unknown third parties. Ex parte Ellis,

309 S.W.3d at 91. Because overbreadth requires courts to analyze how

statutory language is applied, one commentator declares, “There is no such

thing as an as-applied overbreadth challenge…” 23 “[A]n overbreadth facial

challenge peers beyond the four corners of the statute’s face in order to

assess the validity of the applications authorized by the statutory terms.” 24

              The same is true under First Amendment vagueness. Id. at 86. See

White, 50 S.W.3d at 44 & n.13 (describing same standard as overbreadth).

First Amendment vagueness also confers standing to argue “a statute is




23
     Luke Meier, A Broad Attack on Overbreadth, 40 Val. U.L. Rev. 113, 129-130 (2005).
24
  Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule
Requirement, 48 Am. U. L. Rev. 359, 365-66 (1998).

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overbroad because it is unclear whether it regulates a substantial amount of

protected speech.” Williams, 553 U.S. at 304.


       b. Claims based on fundamental rights and equal protection must also
          analyze applications, meanings, and justifications.
              If fundamental rights are involved, strict scrutiny and principles of

equal protection require the same analysis used in First Amendment claims.

The Austin Court of Appeals stresses—on pretrial habeas—that an equal

protection claim, like due process and vagueness, falls “under strict scrutiny

if it implicates a fundamental right.” Ex parte Morales, 212 S.W.3d 483, 500

(Tex. App.—Austin 2006, pet. ref’d); see id. at 490-94, 498.

              Some equal protection claims require a similar analysis regardless. In

Ex parte George, this Court—on pretrial habeas—gives in-depth discussion

of underlying justifications for a criminal law mandating licensing

requirements for plumbers. 152 Tex. Crim. 465, 215 S.W.2d 170 (1948). In

Ex part Tigner, this Court—on pretrial habeas—again provides in-depth

discussion of an entire criminal anti-trust regulation, and the economic

conditions justifying special agricultural exemptions. 139 Tex. Crim. 452,

454-55, 132 S.W.2d 885, 886 (1939).




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       c. Mr. Huddleston’s challenges are cognizable.
              In Watson v. State, the Waco Court finds First Amendment

vagueness, overbreadth, and free speech attacks against child

pornography laws to constitute “facial challenges.” 25 Why find them

non-facial in this case?

       1) Statutory Complaints

              The age requirement of 43.26(a)(1) outlaws expressive material

depicting persons 17 years of age; yet, sexual conduct is completely

legal at that age. TEX. PENAL CODE §§ 21.11(a), 22.011(c)(1).

              The distance in age defense of 43.26(c) only protects

expression between those within 2 years of age; yet, sexual conduct is

permitted for those within 3 years. Id. §§ 21.11(b), 22.011(e).

              Facially, subsections (a)(1) and (c) unconstitutionally prohibit

expressive components of legal conduct. Ex parte Thompson, 442

S.W.3d at 348 & n.135. There is also no underlying justification of

child abuse when the conduct is legal. Ferber, 458 U.S. at 759.

              Furthermore, 43.26(h) provides a deletion defense to law

enforcement and school personnel who in good faith, pursuant to



25
  No. 10-02-163-CR, 2003 Tex. App. LEXIS 6711, at *3-4 (Tex. App.—Waco [10th
Dist.] July 30, 2003) (mem. op., not designated for publication).

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lawful duties, possess child pornographic material under § 43.261.

              Also, minors who receive the same material are specifically

granted a defense to prosecution under § 43.261(f) if they destroy.

              And, minors who destroy under § 43.261(f) are specifically

exempted from prosecution for tampering with evidence by § 37.09(c-

1).

              Resorting only to statutory language, the Legislature included

defenses for one class (e.g., minors), and excluded those defenses from

another class of adults. The State claims Petitioner is wrong, but cannot

explain why the Legislature even needed to express added defenses or

protections. The State forgets the “well-known rule of statutory construction

in this State and elsewhere that the express mention or enumeration of one

person, thing, consequence, or class is tantamount to an express exclusion of

all others.” 26

              Further, by its language, 43.26(a) is met as soon as one opens a

magazine or multi-media message, and realizes it contains child

pornography, because the person is “aware . . . that the circumstances

exists,” 27 has “care, custody, control,” 28 and cannot terminate possession.29



26
     Ex parte McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. 1979) (on State’s mot. reh’g).
27
     TEX. PENAL CODE § 6.03(b).

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Any act of destruction to terminate one’s control will be proof of tampering

with evidence or consciousness of guilt,30 or will not be considered at all. 31

              Whether intentionally sought out or accidentally received, it makes no

difference, First Amendment rights are still held “forever hostage” because

adults cannot get rid of the information. Long , 931 S.W.2d at 294.

              The State claims one might still avoid prosecution by promptly

turning an item over to the authorities. State’s Br. at 17. Doubtful, since

authorities even need special protection under 43.26(h). Regardless, the

State’s reading holds citizens’ rights of privacy and expression for naught;

burdens citizens to provide adequate explanation; naively ignores

consequences of such an arrangement; and fails to reference the date Texas

became a kind of police state requiring citizens to promptly turn themselves

over to the patrols. 32

              The recent amendment to 43.26(a)(1) (“knowingly or intentionally

possesses, or knowingly or intentionally accesses with intent to view, [child

pornography]”), further muddles meanings, as to both before and after the

28
     Id. § 1.07(a)(39).
29
  Id. § 6.01(b)(possession is voluntary by being aware of control for sufficient time to
permit termination of control, or by knowingly receiving the thing possessed).
30
     See Appellant’s Reply Br. at 16 & n.62-63 (discussing cases).
31
   Wise v. State, 364 S.W.3d 900, 905 (Tex. Crim. App. 2012) (stating deletion irrelevant
to “legal analysis of knowing possession.”).
32
     GEORGE ORWELL, 1984 bk. 1, ch. 8.

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amendment. TEX. PENAL CODE § 43.26(a)(1) (2013). Although this point

cannot be fully developed due to word limits, it was urged that the specific

intent—with intent to view—should modify possesses the same as accesses.

              Thus, if a challenge to “internal inconsistency within the statutory

language . . . is a facial challenge to the constitutionality of the statute rather

than an as-applied challenge...”33, why did the Waco Court find otherwise?

              Adults face sex offender registration. 34 Minors face the equivalent of

an expugnable traffic ticket.35 Thus, why do adults receive significantly less

protection? This applies even to an 18 year old senior who receives an

unwanted, unsolicited sext-message from his 15 year old sophomore

girlfriend—who cannot be prosecuted because she has not “promote[d] to

another minor.” TEX. PENAL CODE § 43.261(b)(1).

              The primary justification for outlawing private possession of child

pornography is to “encourage[] the possessors of these materials to destroy

them.” Osborne v. Ohio, 495 U.S. 103, 111 (1990) (emphasis added). But,

adults are penalized for destroying. And, some minors may continue




33
   Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref’d)
(citing Ex parte Ellis, 309 S.W.3d at 79-80)).
34
     TEX. CODE CRIM. Proc. ANN. art. 62.001(5)(B).
35
     Id. art. 45.0216(b)(2).

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possession under § 43.261(e) (minors in dating relationship), even though

harm may increase by circulation 36 and bullying and harassment. 37

              The Legislature also realized the harsh, “life-altering,” 38 “long-term

negative consequences” 39 inherent in 43.26. The Legislature’s discussion

surrounding 43.261’s creation also shows it recognized already occurring

instances of discrimination and “selective enforcement”; 40 provided a

deletion defense for minors as a necessity for alleviating fears about

innocent reception; 41 appreciated the “free speech” and fundamental rights

involved; 42 and understood people must “abandon their privacy rights and

share their phones just to prove their innocence.” 43

               The Waco Court ignores all of this.

       2) The underlying facts do not matter.

              The challenges do not deal with underlying facts of this particular

case. Even the State contended that these claims are “ignoring the actual

facts of this case.” (R.R. at 14:14) It asserted, “[Mr. Huddleston] has not

36
     Appellant’s Br. at 66-67 (discussing statistics).
37
     House Res. Org., Bill Analysis, S.B. 407, 82nd Leg., R.S. 3, 6 (2011).
38
     Id. 4, ¶ 6.
39
     Id. 5, ¶ 3.
40
     Id. 6, ¶ 1.
41
     Id.
42
     Id. 6, ¶ 2.
43
     Id.

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shown . . . his age-based complaint even applies to this prosecution.” State’s

Br. at 22. It admitted this case does not involve an indictment for tampering

with evidence (R.R. at 15:18), and again urged that Mr. Huddleston’s

arguments about “this, that, and the other… just ignores the facts in this

particular case.” (R.R. at 14:6)

              The Waco Court does not once state how Appellant’s challenges

center on particular facts of this case, but then finds they are as-applied.

              The statutory language is as troublesome for members of this Court

and most other Texans as for Mr. Huddleston. Any illustration using Mr.

Huddleston merely emphasizes dangerous points where “application of the

statute is the same in every case.” Appellant’s Br. at 55.




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2.            The Waco Court of Appeals disposed of this case in a manner that
              threatens the reliability of our justice system.

              After noting Chief Justice Gray’s dissent, the order denying

rehearing wrongly tried to justify the opinion “[on] the merits” when

it already denied standing to even consider the merits. Order Denying

Reh’g. This decision cannot be assumed proper merely because other

cases upheld “similar statutes.” Id. The complete failure to provide a

single ounce of First Amendment law leaves this Court no way to

review such a conclusory statement that other cases concerning

“similar statutes” make the decision(s) here appropriate.

              Besides, many (if not all) claims are of first impression. For age

definitions, the State claims there is not “any reported Texas appellate

court decision.” State’s Reply Br. at 20. Similar past attacks are also

unlikely since statutes attacked here (like §§ 43.26(a)(1), (h), 43.261,

37.09(c-1)) were amended and or created in 2011 and 2013.

              Having right to complain of government wrong is the

cornerstone of our justice system. Yet, the Waco Court very casually

eliminated an important vehicle for complaining of government

intrusion, and protesting unlawful restraint.

              Allowing such an inaccurate and indifferent opinion to stand

gives a false impression about what the law is, fuels future arguments

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contrary to this Court’s authority, misleads people about remedies

available for harm to important rights, and undermines confidence in

the entire judicial department.



                                                                          PRAYER


              Mr. Huddleston prays this Honorable Court grant the petition, and

order briefing to further consider remanding to the Waco Court of Appeals.

                                                                                      Respectfully submitted


                                                                                       Benton Ross Watson
                                                                                      _________________________
                                                                                      Benton Ross Watson
                                                                                      120 E. 1st Street / Box 1000
                                                                                      Cameron, Texas 76520
                                                                                      Tel: 1 (254) 307-8181
                                                                                      Fax: 1 (254) 231-0212
                                                                                      ross@texastopdefense.com
                                                                                      State Bar No. 24077591
                                                                                      Attorney for Curtis Huddleston



                                                 CERTIFICATE OF SERVICE


              This is to certify that on January 8, 2015, a true and correct copy of

the above and foregoing document was served on the District Attorney's

Office, Burleson County, Texas, by electronic transmission to



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jrenken@wacounty.com, and larry@brenhamlaw.com; and by certified

mail return receipt requested at 100 W. Buck, Ste. 407, Caldwell, Texas

77836.
                                                                                          Benton Ross Watson
                                                                                          _______________________
                                                                                          Benton Ross Watson




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        CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

                     Certificate of Compliance with Type-Volume Limitation,
                      Typeface Requirements, and Type Style Requirements

       1. This brief complies with the type-volume limitation of TEX. R. APP. P.
          9.4(i) because this brief contains 3,500 words, excluding the parts of
          the brief exempted by TEX. R. APP. P. 9.4(i)(1).

       2. This brief complies with the typeface requirements and the type style
          requirements of TEX. R. APP. P. 9.4(e) because this brief has been
          produced on a computer in conventional typeface using Microsoft
          Word in Times New Roman 14 point font in the body of the brief and
          Times New Roman 12 point font in the footnotes.

       3. The electronic file is virus and malware free.


  Benton Ross Watson
____________________________________________
(Signature of filing party)


  Benton Ross Watson
____________________________________________
(Printed name)


   Sole Practitioner
____________________________________________
(Firm)


    January 8, 2015
____________________________________________
(Date)




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                                                                    APPENDICES



                                                        TABLE OF CONTENTS

              I.            Waco Court of Appeals

                            Memorandum Opinion
                                                                                          App. A-1.
                            Order Denying Rehearing
                                                                                          App. A-2.




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APPENDIX A-1
                                  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
APPENDIX A-2
                                                                                               FILE COPY




                            TENTH COURT OF APPEALS
Chief Justice                            McLennan County Courthouse
  Tom Gray                             501 Washington Avenue, Rm. 415
                                                                                               Clerk
Justices
                                           Waco, Texas 76701-1373                                 Sharri Roessler
   Rex D. Davis                 Phone: (254) 757-5200     Fax: (254) 757-2822
   Al Scoggins
                                              November 12, 2014



       Clyde W. Chandler                                    Benton Ross Watson
       Attorney At Law                                      120 E 1st Street
       120 E. 1st St.                                       Box 1000
       Cameron, TX 76520                                    Cameron, TX 76520
       * DELIVERED VIA E-MAIL *                             * DELIVERED VIA E-MAIL *


       RE:         Court of Appeals Number: 10-14-00073-CR
                   Trial Court Case Number: 14,220

       STYLE: Ex parte Curtis Wayne Huddleston


       Relator’s Motion for Rehearing is denied today. Chief Justice Gray would request a response
       with a view toward granting the motion for rehearing and addressing the merits of the issue as a
       facial challenge to the validity of the statute. As to the merits of the issue, similar statutes
       regarding the possession of child pornography have been determined to not be unconstitutional
       on their face and, therefore, upon the basis of the analysis and rationale in those cases the trial
       court’s order denying the petition for writ of habeas corpus as well as this Court’s judgment
       affirming that order are proper. With these comments, Chief Justice Gray respectfully dissents to
       the summary denial of the motion for rehearing.

                                                            Sincerely,

                                                            SHARRI ROESSLER, CLERK

                                                            By: ___________________________
                                                                Nita Whitener, Deputy Clerk

       CC:      Julie L. Renken (DELIVERED VIA E-MAIL)
