No.

01-20-00858-CR
Court of Appeals of Texas

Ex parte Lowry
Decided Oct 26, 2021

01-20-00858-CR01-20-00859-CR Appellant filed an application for a pretrial writ of

habeas corpus, arguing that section 43.262 is
10-26-2021
unconstitutional on its face and violates the First
EX PARTE MICHAEL LOWRY, Appellant and Fourteenth Amendments to the U.S.
2 Constitution because it "(1) regulates a *2
Sherry Radack Chief Justice substantial amount of protected speech (speech
which is neither obscene nor child pornography),
On Appeal from the 230th District Court Harris
and (2) is unconstitutionally vague." Appellant
County, Texas Trial Court Case No. 1623191 &
further argued,
1685846
Fatal to § 43.262 is the fact that it outlaws
Panel consists of Chief Justice Radack and
speech which is neither child pornography
Justices Landau and Countiss.
nor obscene. For example, the law makes
OPINION criminals of most Instagram 'social
influencers' under the age of 18, who in
Sherry Radack Chief Justice reality do nothing more than post
Appellant, Michael Lowry, challenges the trial provocative, but clothed, pictures of
court's order denying his pretrial writ of habeas themselves online for their millions of
corpus application. In two issues on appeal, followers. Their promoters, from anyone
1 appellant *1 argues that section 43.262 of the establishing platforms for these images, to
Texas Penal Code is facially unconstitutional, people who possess or even access these
overbroad, and void for vagueness. We reverse images are also guilty under § 43.262. And
and remand. that is just one of many examples of the
overly-broad sweep.
Background
Appellant noted that section 43.262 would
Based on investigations by the Montgomery "punish, as a state jail felony" numerous Instagram
County District Attorney's Internet Crimes against "social influencers" and that that he could not visit
Children Task Force, the Department of Homeland the listed Instagram accounts for fear of "possibly
Security, and the Texas Department of Public committing a felony." Appellant broadly stated
Safety, law enforcement discovered child that "[t]he law potentially . . . outlaws . . . almost
pornography and child erotica on appellant's every teenage Instagram user in the United States
phone. On March 1, 2019, the State charged in spite of the fact that the children . . . are in no
appellant with possession of child pornography. way being harmed by posting their pictures on
Later, on July 11, 2019, the State charged Instagram."
appellant in trial court cause number 1623191
with possession of lewd visual material of a child.

1
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

Appellant asserted that section 43.262's regulation The State responded to appellant's application for
of "visual material" is a content-based regulation. writ of habeas corpus, arguing that "Section 43.26
Although appellant acknowledged that obscenity satisfies the State's compelling interest in
is unprotected by the First Amendment, he protecting all children from sexual exploitation
asserted that the "obscenity carve out should not and the long-lasting harm that results from their
apply to . . . § 43.262 because it outlaws non- depiction in child pornography."
pornographic images." Appellant maintained that
During a Zoom hearing on the writ, appellant
the "Texas legislature included the first and third
argued that section 43.262 regulates protected
limitations in § 43.262(b)(2)-(3), but completely
speech, it did not regulate obscenity because it
omitted the second limitation that 'the work
lacked the patently offensive prong, and the
depicts or describes, in a patently offensive way,
section did not apply to regulate child
3 sexual conduct *3 specifically defined by the
pornography. Appellant contended that because
applicable state law.'" Appellant noted that the
the statute regulates protected speech and is a
statute's omission conflicts with the supreme
content-based restriction, strict scrutiny would
court's requirement that prohibited obscene speech
apply. Appellant argued that the State had the
be patently offensive. Appellant continued, "By
burden to meet strict scrutiny and that it had failed
omitting the 'patently offensive' requirement from
to show that the statute was the least restrictive
[section] 43.262, the statute specifically permits
means to regulate speech. In arguing that the
prosecution for materials which certainly cannot
statute was not narrowly tailored, appellant
be considered 'hard core sexual conduct.'"
pointed out that the introductory version of the
To bolster his argument that the statute cannot be statute applied to obscenity and contained a
upheld, appellant asserted that the statute does not scienter requirement, but that upon the law's
include a scienter requirement and that the State enactment, the obscenity and scienter
could not show that the law employed the least requirements were removed. As an example of the
restrictive means to achieve its goals. Finally, 5 overbroad reach of the statute, *5 appellant
appellant argued that section 43.262 is void for informed the trial court of the prosecution of
vagueness "because a person of ordinary Netflix for showing a film "designed to actually
intelligence is not on notice of what, exactly, protect children and to protest the
subjects them to punishment." oversexualization of children in our society."
Appellant also argued that the statute was void for
On November 10, 2020, appellant filed a "Notice
vagueness and that the statute overly chilled
of Additional Evidence" to support his pretrial
speech and "leaves too many people open to
habeas application. Appellant asked the trial court
prosecution." By way of example, appellant
to take judicial notice of a pending suit in Tyler
argued that "anybody in Texas who watched that
County, Texas, in which a grand jury indicted
Cuties movie, would be open to prosecution
Netflix for the promotion of lewd visual material
including the DA of the county who brought the
depicting children and that the prosecution of
charges who admits he's watched that movie."
Netflix showed that section 43.262 is overbroad
4 and *4 unconstitutionally vague because "it overly The State responded that section 43.262 was an
chills protected speech and does not provide additional child pornography prohibition statute
ordinary citizens fair notice of what the statute that "works to prevent the sexual abuse or
proscribes." exploitation of children, which is a compelling
interest and permits the State to have more leeway
in drafting child porn statutes in order to protect
children." The State further argued that the

2
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

"statute's scope is limited to the depictions "[P]retrial habeas, followed by an interlocutory

involving child sexual exploitation and/or abuse appeal, is an 'extraordinary remedy,' and 'appellate
and a legitimate application under the First courts have been careful to ensure that a pretrial
Amendment." In responding to appellant's writ is not misused to secure pretrial appellate
vagueness argument, the State explained that review of matters that in actual fact should not be
perfect clarity is not required and that the "statute put before appellate courts at the pretrial stage.'"
language is clear enough and sufficient to put Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim.
anyone on notice on what is prohibited." Finally, App. 2010) (quoting Ex parte Doster, 303 S.W.3d
the State argued that the statute is not overbroad 720, 724 (Tex. Crim. App. 2010)). "Pretrial habeas
and "is not protected by the First Amendment can be used to bring a facial challenge to the
6 because this is obscene material." *6 constitutionality of the statute that defines the
offense but may not be used to advance an 'as
Appellant responded by agreeing that "there's a
applied' challenge." Id.
compelling interest in protecting children" but "the
problem is that this law is not narrowly drawn" "Whether a statute is facially constitutional is a
and "it's not the least restrictive way to protect question of law that we review de novo." Ex parte
children." Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
When the constitutionality of a statute is attacked,
The trial court found that section 43.262 was a
we usually begin with the presumption that the
content-based regulation of speech requiring strict
statute is valid and that the legislature has not
scrutiny review. The trial court noted that the State
acted unreasonably or arbitrarily. Id. at 15. The
has a compelling interest in the protection of
burden normally rests upon the person challenging
minors from sexual exploitation and believed that,
the statute to establish its unconstitutionality. Id.
even though the statute did not specifically state
8 However, when the government *8 seeks to
that it applied to patently offensive conduct, the
restrict and punish speech based on its content, the
language used in the statute-imagery of the
usual presumption of constitutionality is reversed.
genitalia or pubic area, whether clothed, unclothed
Id. "Content-based regulations (those laws that
or partially clothed-lays out patently offensive
distinguish favored from disfavored speech based
conduct. The trial court also noted that the public
on the ideas expressed) are presumptively invalid,
debate seems to be on whether the imagery "lacks
and the government bears the burden to rebut that
serious literary, artistic or scientific value." The
presumption." Id. (citing Ashcroft v. Am. Civil
court also found that, taking the statute as a whole,
Liberties Union, 542 U.S. 656, 660 (2004)). We
the statute had a scienter requirement in
apply strict scrutiny to regulations that suppress,
subsection B that applied to the rest of the
disadvantage, or impose differential burdens upon
statutory text under B. Because the trial court
speech because of its content, and such regulations
found that the statute was narrowly construed and
may be upheld only if it is necessary to serve a
necessary to serve a compelling interest, the trial
compelling state interest and employs the least
7 court denied the requested habeas relief. *7
speech-restrictive means to achieve its goal. Ex
Appellant appealed "from the order denying the parte Flores, 483 S.W.3d 632, 639 (Tex. App.-
pre-trial writ of habeas corpus in cause number Houston [14th Dist.] 2015, pet. ref'd) (citing
1685846 challenging the constitutionality of the Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,
charge pending in cause number 1623191." 642 (1994) and Lo, 424 S.W.3d at 15).

Constitutionality of Section 43.262 "Other types of regulations receive intermediate

scrutiny, including content-neutral regulations of
A.Standard of Review
the time, place, and manner of speech, as well as

3
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

regulations of speech that can be justified without 10 to extra-textual *10 sources." Wagner, 539 S.W.3d
reference to its content." Id. (citing Turner Broad. at 306; Cary v. State, 507 S.W.3d 750, 756 (Tex.
Sys., 512 U.S. at 642 and Ward v. Rock Against Crim. App. 2016).
Racism, 491 U.S. 781, 791 (1989)). "These
We look beyond the statute's text and context to
regulations are permissible if they promote a
discern its meaning only if the text does not bear a
significant governmental interest and do not
plain contextual meaning or if the text's
burden substantially more speech than necessary
unambiguous meaning would lead to "'absurd
to further that interest." Id. (citing McCullen v.
consequences that the legislature could not
Coakley, 573 U.S. 464 (2014) and Ex parte
possibly have intended.'" Timmins v. State, 601
Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App.
S.W.3d 345, 348 (Tex. Crim. App. 2020) (quoting
9 2014)). *9
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.
As part of the constitutional analysis, we must first App. 1991)). In those events, a court may consider
construe section 43.262 to determine what type of extra-textual factors like (1) the object sought to
content it covers. See Thompson, 442 S.W.3d at be attained by the Legislature; (2) the
334; Martinez v. State, 323 S.W.3d 493, 504-05 circumstances under which the statute was
(Tex. Crim. App. 2010); see also Wagner v. State, enacted; (3) the legislative history; (4) the
539 S.W.3d 298, 306 (Tex. Crim. App. 2018) common law or former statutory provisions,
("The first step in overbreadth analysis is to including laws on the same or similar subjects; (5)
construe the challenged statute; it is impossible to the consequences of a particular construction; (6)
determine whether a statute reaches too far the administrative construction of the statute; and
without first knowing what the statute covers.") (7) the title or caption, preamble, and any
(citing United States v. Williams, 553 U.S. 285, emergency provision. Tex. Gov't Code § 311.023;
293 (2008)). Arteaga, 521 S.W.3d at 334. When construing a
statute in the face of a First Amendment
To determine the meaning of the statute, we apply
challenge, courts have a duty to employ a
rules of statutory construction to the statutory text.
reasonable, narrowing construction of a statute to
Wagner, 539 S.W.3d at 306. We interpret the
avoid a constitutional violation if the statute at
statute "in accordance with the plain meaning of
issue is readily susceptible to one. Ex parte Perry,
its language unless the language is ambiguous or
483 S.W.3d 884, 903 (Tex. Crim. App. 2016).
the plain meaning leads to absurd results that the
Statutory construction is a question of law that we
Legislature could not possibly have intended." Id.
review de novo. Ramos v. State, 303 S.W.3d 302,
(citing Sanchez v. State, 995 S.W.2d 677, 683
11 306 (Tex. Crim. App. 2009). *11
(Tex. Crim. App. 1999)). We must read words and
phrases in context and construe them according to B.Construction of Penal Code Section 43.262
the rules of grammar and usage. Id.; see Tex. Gov't
Enacted by the Texas Legislature in 2017, section
Code § 311.011(a) ("Words and phrases shall be
43.262, titled "Possession or Promotion of Lewd
read in context and construed according to the
Visual Material Depicting Child," provides:
rules of grammar and common usage."). "We
presume that every word has been used for a (a) In this section:
purpose and that each word, phrase, clause, and
(1) 'Promote' and 'sexual conduct' have the
sentence should be given effect if reasonably
meanings assigned by Section 43.25.
possible." Wagner, 539 S.W.3d at 306; Arteaga v.
State, 521 S.W.3d 329, 334 (Tex. Crim. App. (2) 'Visual material' has the meaning
2017). "If the language of the statute is plain, we assigned by Section 43.26.
will effectuate that plain language without resort

4
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

(b) A person commits an offense if the prurient interest in sex, and the visual material has
person knowingly possesses, accesses with no serious literary, artistic, political, or scientific
intent to view, or promotes visual material value." Thus, we confine our analysis to the
that: portion of section 43.262 that prohibits a person
from knowingly possessing visual material that
(1) depicts the lewd exhibition of the
depicts the "lewd exhibition of the . . . pubic area
genitals or pubic area of an unclothed,
of a[] . . . clothed child, who is younger than 18
partially clothed, or clothed child who is
years of age at the time the visual material was
younger than 18 years of age at the time
13 created," that appeals to the *13 prurient interest in
the visual material was created;
sex, and has no serious literary, artistic, political,
(2) appeals to the prurient interest in sex; or scientific value. See United States v. Grace, 461
and U.S. 171, 175 (1983) (limiting review of statute's
constitutionality under First Amendment to part of
(3) has no serious literary, artistic,
statute under which defendants were charged).
political, or scientific value.
C. Does the First Amendment Apply to Section
...
43.262?
12 *12
The First Amendment provides "Congress shall
(d) It is not a defense to prosecution under
make no law . . . abridging the freedom of
this section that the depicted child
speech." U.S. Const. amend. I. The First
consented to the creation of the visual
Amendment right to freedom of speech applies to
material.
the states by virtue of the Fourteenth Amendment.
Tex. Penal Code § 43.262(a)(b), (d). Board of Educ. v. Barnette, 319 U.S. 624, 638-39
(1943). "[A]s a general matter, the First
Visual material "means any film, photograph, Amendment means that government has no power
videotape, negative, or slide or any photographic to restrict expression because of its message, its
reproduction that contains or incorporates in any ideas, its subject matter, or its content." United
manner any film, photograph, videotape, negative, States v. Stevens, 559 U.S. 460, 468 (2010)
or slide; or any disk, diskette, or other physical (quoting Ashcroft v. Am. Civil Liberties Union,
medium that allows an image to be displayed on a 535 U.S. 564, 573, (2002)). However, there are
computer or other video screen and any image some "well-defined and narrowly limited classes
transmitted to a computer or other video screen by of speech" that have been recognized as falling
telephone line, cable, satellite transmission, or outside the protection of the First Amendment.
other method. Id. § 43.26(b)(3). "A person acts Stevens, 559 U.S. at 468-72. These include child
knowingly, or with knowledge, with respect to the pornography, obscenity, defamation, fighting
nature of his conduct or to circumstances words, incitement, true threats of violence, fraud,
surrounding his conduct when he is aware of the and speech integral to criminal conduct. See id.
nature of his conduct or that the circumstances Speech not within one of these narrowly defined
exist." Id. § 6.03(b). categories is protected under the First
Here, the State charged appellant with "knowingly Amendment, even if a legislature "concludes
possess[ing] visual material, namely, a certain speech is too harmful to be tolerated."
photograph, that depicts the lewd exhibition of the Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 791
pubic area of a clothed child who is younger than 14 (2011). *14
18 years of age at the time the visual material was
created, to wit: the visual material appeals to the

5
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

The State argues that the speech or conduct section 43.21 of the Texas Penal Code defines
prohibited by section 43.262 does not fall within obscene as material that the average person,
First Amendment protection. Instead, the State applying contemporary standards, would find that
contends that section 43.262 prohibits obscenity taken as a whole appeals to the prurient interest in
and child pornography, both of which are sex; taken as a whole, lacks serious literary,
unprotected by the First Amendment. See Stevens, artistic, political, and scientific value, and depicts
559 U.S. at 468-72. or describes (i) patently offensive representations
16 or descriptions of *16 ultimate sexual acts or (ii)
Generally, both the creation and dissemination of
patently offensive representations or descriptions
visual images are protected expression under the
of "lewd exhibition of the genitals." See Tex.
First Amendment. See Brown, 564 U.S. at 799-802
Penal Code § 43.21(1).
(holding law that imposed civil fines for the sale
or rental of violent video games to minors While it contains elements one and three of
impermissibly restricted protected speech); Miller's obscenity definition, section 43.262 omits
Stevens, 559 U.S. at 468-82 (holding statute element two-patently offensive conduct. See
criminalizing the knowing creation, selling, or Miller, 413 U.S. at 24; see also Free Speech
possession of certain depictions of animal cruelty Coalition, 535 U.S. at 249 (stating that Child
with intent to place it in commerce for commercial Pornography Prevention Act of 1996 ("CPPA")
gain punished protected speech); Ashcroft v. Free cannot be read to prohibit obscenity because it
Speech Coalition, 535 U.S. 234, 244-58 (2002) lacks required link between prohibitions and
15 (holding statutory prohibition on possessing or *15 affront to community standards prohibited by
distributing "virtual child pornography," non- definition of obscenity). Our conclusion that
obscene sexually explicit images that appear to section 43.262 does not prohibit obscenity is also
depict minors but which were produced using supported by the legislature's separate statutes that
youthful adults or computer imaging technology, already prohibit obscenity. See Tex. Penal Code §§
violated First Amendment); Thompson, 442 43.22 (prohibiting person from displaying or
S.W.3d at 336-37 (holding that photographs and distributing obscene photograph), 43.23
visual recordings, as well as purposeful creation of (prohibiting person from possessing with intent to
them, are inherently expressive and are protected wholesale promote any obscene material),
by First Amendment). Although section 43.262 is 43.21(a) (defining obscene, inter alia, to depict or
located in Chapter 43 titled "Public Indecency" describe patently offensive representations or
and specifically under subchapter B, titled depictions); see also Free Speech Coalition, 535
"Obscenity," we observe that section 43.262 does U.S. at 240 (noting that CPPA not directed at
not prohibit obscenity. In Miller v. California, the obscene speech because Congress proscribed
supreme court defined obscenity as "(a) whether those materials in separate statute). Had the
the average person, applying contemporary legislature wanted to prohibit obscene visual
community standards would find that the work, material depicting children, the legislature knew
taken as a whole, appeals to the prurient interest; how to accomplish that purpose. See Tex. Penal
(b) whether the work depicts or describes, in a Code § 43.24 (in statute for "Sale, Distribution, or
patently offensive way, sexual conduct specifically Display of Harmful Material to Minor," defining
defined by the applicable state law; and (c) harmful material when dominant theme appeals to
whether the work, taken as a whole, lacks serious 17 prurient interest of minor, in sex, nudity, or *17
literary, artistic, political, or scientific value. 413 excretion, is patently offensive, and is utterly
U.S. 15, 24 (1973) (internal quotation marks and without redeeming social value for minors).
citations omitted). In accordance with Miller,

6
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

We next determine whether the relevant language purposes of child pornography as found in section
in section 43.262 criminalizes child pornography. 43.26. Absent from the legislative history above is
Section 43.262 does not state anywhere within the any reference that the visual material constitutes
text that it prohibits child pornography. Compare child pornography. The statutory text of section
Tex. Penal Code § 43.262 (prohibiting possession 43.262 prohibits a (1) a person; (2) from
of visual material depicting lewd exhibition of knowingly possessing; (3) visual material; (4) that
pubic area of child), with Tex. Penal Code § 43.26 depicts the lewd exhibition; (5) of the pubic area
(prohibiting possession of child pornography). (6) of a clothed child; (6) which appeals to the
Instead, section 43.262 prohibits a person from prurient interest in sex; and (7) has no serious
possessing visual material that depicts the lewd literary, artistic, political, or scientific value. See
exhibition of the pubic area of a clothed child, that Tex. Penal Code § 43.262. Whereas, section 43.26
appeals to the prurient interest in sex and has no prohibits (1) a person; (2) from knowingly or
serious literary, artistic, politically, or scientific intentionally possessing; (3) visual material that;
value. Tex. Penal Code § 43.262. (4) visually depicts a child younger than 18 years
of age; (5) who is engaging in sexual conduct. For
Because the statutory text does not indicate
purposes of section 43.26, sexual conduct is
whether section 43.262 applies to child
defined as "sexual contact, actual or simulated
pornography, we turn to the legislative history.
sexual intercourse, deviate sexual intercourse,
House bill 1810's statement of intent provides,
sexual bestiality, masturbation, sado-masochistic
"Interested parties contend there is currently no
19 abuse, or lewd exhibition of the *19 genitals, the
disincentive for some criminals to possess or
anus, or any portion of the female breast below the
promote certain images portraying children
top of the areola." Tex. Penal Code § 43.25(a)(2).
depicted in a sexually suggestive manner." See
Notably, the definition of sexual conduct in
Senate Research Ctr., Bill Analysis, Tex. H.B.
section 43.25, as applied to child pornography in
1810, 85th Leg., R.S. (2017). The statement of
section 43.26, does not include the "lewd
18 intent further provides, *18
exhibition of the pubic area of a clothed child."
Current state law does not contain statutes
Before the passage of section 43.262, Texas laws
that criminalize the possession or
did not criminalize the possession of visual
promotion of child erotica images. Child
material depicting the lewd exhibition of the pubic
erotica images portray an unclothed,
area of a child, commonly referred to as child
partially[] clothed, or clothed child
erotica images. See Wise v. State, 364 S.W.3d 900,
depicted in a sexually explicit manner
907 n.6 (Tex. Crim. App. 2012) (noting that state's
indicating the child has a willingness to
expert defined child erotica as "a picture of a child
engage in sexual activity. Investigations of
either partially clothed or nude" that is not illegal);
child pornography cases have revealed
Bolles v. State, No. 07-08-0304-CR, 2010 WL
many child pornography collections also
539684, at *2 (Tex. App.- Amarillo Feb. 16, 2010,
include child erotica images. In some
pet. ref'd) (mem. op., not designated for
cases, only child erotica images are
publication) (noting that computer generated
discovered. In such instances, state charges
pictures depicting children in various sexual acts
cannot be pursued.
was termed "child erotica" and "child anime");
Id. Senate Research Ctr., Bill Analysis, Tex. H.B.
1810, 85th Leg., R.S. (2017) (stating that charges
As explained by the legislative history, the visual
for child erotica images could not be pursued).
material prohibited in section 43.262 does not fall
The legislative history, caselaw, and statutes
within the current definition of sexual conduct for

7
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

demonstrate that the visual material-child erotica product of sexual abuse, it does not fall outside the
images-prohibited by section 43.262 is distinct protection of the First Amendment"); Kaplan v.
from child pornography and that the legislature California, 413 U.S. 115, 119-20 (1973) ("As with
sought to create a new statute to prohibit child pictures, films, paintings, drawings, and
erotica-visual material depicting the lewd engravings, both oral utterance and the printed
exhibition of the pubic area of a clothed child. word have First Amendment protection until they
Because section 43.262 prohibits visual material collide with the long-settled position of this Court
that is distinct from the sexual conduct defined in that obscenity is not protected by the
20 section 43.25 and *20 prohibited in section 43.26, Constitution."); Erznoznik v. City of Jacksonville,
and the legislative history indicates that the 422 U.S. 205, 213-14 (1975) (stating that "
legislature wanted to prohibit child erotica, which [s]peech that is neither obscene as to youths nor
was previously not illegal, we conclude that the subject to some other legitimate proscription
visual material prohibited in section 43.262 is not cannot be suppressed solely to protect the young
child pornography and is therefore subject to First from ideas or images that a legislative body thinks
Amendment protection. unsuitable for them").

Were we to agree with the State that section D. Is the Statute Content Based?
43.262 regulates child pornography, we would
Because section 43.262 regulates expressive
thus have to ignore the specific legislative history
content protected by the First Amendment, we
indicating that the present statute attempts to
must next determine whether the statutory
prohibit material that did not otherwise fall within
restrictions are content based or content neutral. A
existing statutes, i.e. section 43.26 prohibiting
law is content-based if it "targets speech based on
possession of child pornography. Furthermore, the
its communicative content." Reed v. Town of
State has not provided any authority that section
22 Gilbert, Ariz., 576 U.S. 155, 163 *22 (2015). "If it
43.262 prohibits child pornography or obscenity.
is necessary to look at the content of the speech in
In sum, the legislature created a new statute to question to decide if the speaker violated the law,
prohibit the knowing possession of visual material the regulation is content-based." Lo, 424 S.W.3d at
depicting the lewd exhibition of the pubic area of 15 n.12. Laws that confer benefits or impose
a clothed child that is neither obscene nor child burdens on speech without reference to the ideas
pornography. Because the visual material or views expressed are content neutral. See Turner
prohibited by section 43.262 includes visual Broad. Sys., 512 U.S. at 642.
material that may be lewd but not within Miller's
Here, the statute in question prohibits a person
definition of obscenity or considered child
from knowingly possessing visual material that
21 pornography, we *21 therefore conclude that
depicts the lewd exhibition of the pubic area of a
section 43.262 attempts to regulate visual material
clothed child that appeals to the prurient interest in
that is inherently expressive and that is protected
sex and has no serious literary, artistic, political, or
by the First Amendment. See
scientific value. See Tex. Penal Code § 43.262(b).
Thompson, 442 S.W.3d at 336-37 (holding that It is the sexually-related nature and subject matter
photographs and visual recordings, as well as of the visual material sought to be proscribed that
purposeful creation of them, are inherently renders the statute content based. See Thompson,
expressive and are protected by First 442 S.W.3d at 348 (former subsection (b)(1)
Amendment); see also Free Speech Coalition, 535 sought to prevent sexual content); see also Lo, 424
U.S. at 251 (noting that Ferber "reaffirmed that S.W.3d at 22- 24 (discussing First Amendment
where the speech is neither obscene nor the protection of indecent sexual expression) (citing

8
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

Reno v. Am. Civil Liberties Union, 521 U.S. 844, the State has a compelling interest and has
874 (1997)). The statute neither applies to visual narrowly tailored its statute, the statute will be
material that depicts only a person's arm, foot, invalidated for overbreadth only if the challenger
neck or face, nor does it apply if the visual can show the statute continues to reach a real and
material does not appeal to the prurient interest in substantial amount of protected speech, "judged in
sex or has serious literary, artistic, political, or relation to its legitimate sweep." New York v.
scientific value. Ex parte Metzger, 610 S.W.3d 86, Ferber, 458 U.S. 747, 769 (1982).
96 (Tex. App.-San Antonio 2020, pet. ref'd). By
In its response to appellant's application for writ of
limiting the statute's prohibition to visual material
habeas corpus, the State argued that it has a
depicting the lewd exhibition of the pubic area of
compelling interest "in protecting all children
a clothed child, appealing to the prurient interest
from sexual exploitation and the long-lasting harm
23 in sex and not having *23 serious literary, artistic,
that results from their depiction in child
political, or scientific value, we conclude the
pornography." In its appellate brief, the State
statute is a content-based restriction. See
asserts the problem it is seeking to address is
Thompson, 442 S.W.3d at 344-48.
"protecting children from sexual abuse and
E. Does the Statute Satisfy Strict Scrutiny? exploitation" and that "Section 43.262 is necessary
to close a loophole of child sexual exploitation
Because section 43.262 is a content-based
that is currently left open by the existing child
restriction on protected speech, it is subject to
pornography statute."
strict-scrutiny review to determine if the State has
overcome the presumption of invalidity. See id. at No rational person will disagree that protecting
344 (citing Entm't Merchs. Ass'n, 564 U.S. at children from sexual exploitation and their
799); United States v. Playboy Entm't Grp., Inc., depiction in child pornography is a compelling
529 U.S. 803, 813 (2000) ("a content-based government interest. See Lo, 424 S.W.3d at 20-21
speech restriction" may stand "only if it satisfies ("The prevention of sexual exploitation and abuse
strict scrutiny"). of children constitutes a government objection of
surpassing importance."). But, we observe that the
To satisfy strict scrutiny, content-based laws that
State's compelling interest of protecting sexual
regulate expression "are presumptively
abuse and exploitation is not supported by the
unconstitutional and may be justified only if the
25 statute's legislative history. The legislative *25
government proves that they are narrowly tailored
history of section 43.262 provides, "there is
to serve compelling state interests." Reed, 576
currently no disincentive for some criminals to
U.S. at 163. In this context, a regulation is
possess or promote certain images portraying
"narrowly drawn" if it uses the least restrictive
children depicted in a sexually suggestive manner"
means of achieving the government interest.
and the bill "seeks to address this issue by creating
Playboy Entm't Grp., 529 U.S. at 813. "If a less
the offense of possession or promotion of lewd
restrictive means of meeting the compelling
visual material depicting a child." House Crim.
interest could be at least as effective in achieving
Jurisprudence Comm., Bill Analysis, Tex. H.B.
the legitimate purpose that the statute was enacted
1810, 85th Leg., R.S. (2017). From the senate
to serve, then the law in question does not satisfy
research center, the bill analysis states,
24 strict scrutiny." Lo, 424 *24 S.W.3d at 15-16. The
strict scrutiny analysis requires the State to
identify "an actual problem in need of solving,"
and to show that it is important enough to justify
suppressing speech. See Brown, 564 U.S. at 799. If

9
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

Current state law does not contain statutes 800. Although the state submitted studies of
that criminalize the possession or research psychologists "purport[ing] to show a
promotion of child erotica images. Child connection between exposure to violent video
erotica images portray an unclothed, games and harmful effects on children," the Court
partially[] clothed, or clothed child held that the studies did not satisfy strict scrutiny
depicted in a sexually explicit manner because the studies had "been rejected by every
indicating the child has a willingness to court to consider them" and did not "prove that
engage in sexual activity. Investigations of violent video games cause minors to act
child pornography cases have revealed aggressively." Id. at 800.
many child pornography collections also
Here, unlike in Brown, the State did not present
include child erotica images. In some
any evidence or studies to show that the prohibited
cases, only child erotica images are
visual material in section 43.262, which neither
discovered. In such instances, state charges
encompasses obscenity, nor child pornography,
cannot be pursued.
has a direct causal link to the State's compelling
Senate Research Ctr., Bill Analysis, Tex. H.B. interest of preventing the sexual abuse or sexual
1810, 85th Leg., R.S. (2017). 27 exploitation of *27 children. If Brown's rejection
of competing psychological studies did not
While the legislative history shows that
suffice, the State's proffer of no evidence to show
investigations of criminals with child pornography
how child erotica images cause sexual exploitation
collections also reveals collections of child
and sexual abuse of children does not rebut the
erotica, the history is silent as to whether child
presumption of the statute's invalidity and thus,
erotica images, and specifically, visual material
the relevant language of the statute at issue here
depicting the lewd exhibition of the pubic area of
does not meet strict scrutiny. See id. at 800;
a clothed child-not child pornography-is an actual
Alvarez, 567 U.S. at 725 (stating that "First
problem causing the sexual abuse or exploitation
Amendment requires that the Government's
of children, thus necessitating the prohibition. See
chosen restriction on the speech at issue be
Brown, 564 U.S. at 799; Lo, 424 S.W.3d at 19
'actually necessary' to achieve its interest" and "
(stating that "the State may not punish speech
[t]here must be a direct causal link between the
26 simply because that *26 speech increases the
restriction imposed and the injury to be
chance that a 'pervert' might commit an illegal act
prevented"); see also Playboy Entm't Grp., 529
'at some indefinite future time.'").
U.S. at 819 (concluding that the "First
In Brown, the Supreme Court held that California's Amendment requires a more careful assessment
law banning the sale of violent video games to and characterization of an evil in order to justify a
minors without parental consent did not pass strict [sweeping] regulation" and emphasizing that
scrutiny. Id. at 805. The state recognized that it government was required to present more than
could not "show a direct causal link between "anecdote and supposition" to prove an "actual
violent video games and harm to minors," but problem"); cf. Free Speech Coalition, 535 U.S. at
argued that strict scrutiny could be satisfied based 250 ("Virtual child pornography is not
on the Legislature's "predictive judgment that such 'intrinsically related' to the sexual abuse of
a link exists, based on competing psychological children, as were the materials in Ferber."). We
studies." Id. at 799. The Supreme Court rejected hold that the portion of section 43.262 at issue in
this argument, explaining that, under strict this habeas appeal is an unconstitutional restriction
scrutiny, the state "bears the risk of uncertainty"
and "ambiguous proof will not suffice." Id. at 799-

10
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

on speech protected by the First Amendment and We have already concluded that section 43.262
that the State has failed to rebut the presumption does not prohibit obscenity or child pornography.
28 of the statute's invalidity. *28 Instead, the statute applies to a person who
knowingly possesses visual material depicting the
Overbreadth
lewd exhibition of the pubic area of a clothed
Despite our conclusion that the statute is an child, otherwise known as child erotica, that
invalid content-based restriction, we further previously was not prohibited and is not
address the unconstitutional reach of the statute. recognized as unprotected speech. See Tex. Penal
See Thompson, 442 S.W.3d at 349. As we Code § 43.262(b); Senate Research Ctr., Bill
explained above, section 43.262 prohibits a person Analysis, Tex. H.B. 1810, 85th Leg., R.S. (2017).
from possessing visual material depicting the lewd
A statute is likely to be found overbroad if the
exhibition of the pubic area of a clothed child, that
criminal prohibition it creates is of "alarming
appeals to the prurient interests in sex, and has no
breadth." See Stevens, 559 U.S. at 474. Such is the
serious literary, artistic, political, or scientific
case with the current statute. Even assuming that
value. See Tex. Penal Code § 43.262.
the visual material prohibited in section 43.262
The overbreadth doctrine is "strong medicine" to 30 *30 has a direct causal link to the sexual abuse and
be employed with hesitation and only as a last sexual exploitation of children, it is not difficult to
resort. See Thompson, 442 S.W.3d at 349 (citing imagine the overbreadth of this statute.
Ferber, 458 U.S. at 769). The overbreadth of a
The statute applies to any person-man, woman,
statute not only must "be real, but substantial as
teenager, law enforcement, judiciary, or school
well, judged in relation to the statute's plainly
administrator-as long as the person knowingly
legitimate sweep." Ferber, 458 U.S. at 770. To be
possesses visual material depicting the lewd
held unconstitutional under the overbreadth
exhibition of the pubic area of a clothed child
doctrine, a statute must be found to "prohibit[ ] a
younger than 18. The statute does not differentiate
substantial amount of protected expression." Free
if a teenager takes the offending photo of
Speech Coalition, 535 U.S. at 244. The danger
themselves, commonly referred to as a "selfie,"
29 that the statute *29 will be unconstitutionally
and posts it publicly for anyone to see. See Tex.
applied must be "realistic." Regan v. Time, Inc.,
Penal Code § 43.262(d) (stating that it is no
468 U.S. 641, 651 n.8 (1984). A statute is not
defense if depicted child consented to creation of
rendered overbroad merely because it is possible
visual material). In that instance, and based on the
to conceive of some impermissible applications.
State's proffered compelling interest, if the visual
Williams, 553 U.S. at 303.
material violates the statute, the teenager is both
Appellant contends that a number of child the victim (of sexual exploitation and sexual
Instagram "influencers" are in violation of section abuse) and the offender. And, any other person,
43.262 and that the State is attempting to whether that person is a collector of child erotica,
prosecute Netflix for exhibiting a movie that parent, law enforcement, or educator, who
depicted children performing gymnastics. During knowingly possesses the visual material posted by
the writ hearing, the State acknowledged the the teenager, could also violate the statute.
charges against Netflix, expressed that it could not
As pointed out by appellant, at least one
explain another county's decision to prosecute, and
prosecutor has indicted Netflix for showing a film
believed Netflix's movie had political, literary, and
that violated the statute. As currently written, the
artistic value.

11
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

statute could apply not only to Netflix, but to and not section 43.262. The response erroneously
those persons who viewed the offending visual refers to (1) a different indictment, (2) section
material. 43.26 in support of its argument that section
43.262 is constitutional, and (3) arguments that
Although the savings clause exempts visual
appellant did not assert in his habeas application.
material having serious literary, artistic, political, 8910[11]
The United States Supreme Court has
or scientific value, such exemptions matter little
explained that "[c]hild pornography harms and
31 when a *31 substantial amount of protected speech
debases the most defenseless of our citizens"
is still chilled in the process. See Free Speech
United States v Williams, 553 U.S. 285, 307
Coalition, 535 U.S. at 255 (stating that the
(2008) "[T]he materials produced are a permanent
"overbreadth doctrine prohibits the Government
record of the children's participation and the harm
from banning unprotected speech if a substantial
to the child is exacerbated by their circulation"
amount of protected speech is prohibited or chilled
New York v Ferber, 458 U.S. 747, 759 (1982)
in the process"); Lo, 424 S.W.3d at 22 (noting that
Other courts have noted that "[t]he existence of
supreme court upholds statutes prohibiting
and traffic in child pornography creates the
dissemination of material that is obscene for
potential for many types of harm in the
children, but will strike down, as overbroad,
community" and "presents a clear and present
statutes that prohibit communication or
danger to all children" United States v White, 506
dissemination of material that is indecent or
F.3d 635, 649 (8th Cir 2007) (Riley, J, concurring
sexually explicit).
in part, dissenting in part) (quoting Child
Accordingly, we conclude that the criminal Pornography Prevention Act of 1996, Pub. L. No.
prohibition in section 43.262 is of "alarming 104-208, § 21, 110 Stat. 3009, 3009-26 (1996)).
breadth" that is "real" and "substantial." See And, the Texas Court of Criminal Appeals has
Stevens, 559 U.S. at 474; Ferber, 458 U.S. at 770. found that the "integral part of the offense of
possession of child pornography" is the harm to
Conclusion
each individual child. Vineyard v. State, 958
We hold that the portion of section 43.262 of the S.W.2d 834, 840 (Tex. Crim. App. 1998) (quoting
Texas Penal Code addressed herein is void on its Ex parte Crosby, 703 S.W.2d 683, 685 (Tex. Crim.
face as it fails strict scrutiny and violates the First App. 1986) (orig. proceeding), overruled on other
Amendment to the U.S. Constitution because it is grounds by Ex parte Hawkins, 6 S.W.3d 554 (Tex.
overbroad. Thus, in appellate cause number 01-20- Crim. App. 1999) (orig. proceeding)). [12]
00859-CR, trial court cause number 1685846, we "Whether an image falls within the statutorily
reverse the trial court's order denying appellant's defined category of child pornography under
requested habeas corpus relief and remand the Texas state law is a question that must be
case to the trial court to dismiss the indictment in answered on a case by case basis." State v. Bolles,
32 trial court cause number 1623191. *32 541 S.W.3d 128, 143 (Tex. Crim. App. 2017). [13]
At the hearing on the writ of habeas corpus, the
In appellate cause number 01-20-00858-CR, trial State argued that section 43.262 was "an
court cause number 1623191, we grant the State's additional child porn prohibition statute" which
motion to dismiss for lack of jurisdiction because "works to prevent the sexual abuse or exploitation
the record does not contain an appealable order in of children, which is a compelling interest. . . ."
the underlying proceeding. See Greenwell v. Court The State argued that the elements of the statute
of Appeals for the Thirteenth Judicial Dist., 159 "show that the statute's scope is limited to the
S.W.3d 645, 649-50 (Tex. Crim. App. 2005); depictions involving child sexual exploitation
33 Tex.R.App.P. 25.2(a)(2), 26.2(a). *33 1234567 43.26 and/or abuse and a legitimate application under

12
 Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

the First Amendment." The State further argued (contrasting technical "overbreadth" claim-that
that "this is not protected speech because it is an regulation violated rights of too many third
obscenity and First Amendment does not protect parties- with claim that statute restricted more
against obscenity. . . ." In closing, the State argued speech than the constitution permits, even as to the
that the statute is not overbroad and not protected defendant, because it was content based)). [17]
by the First Amendment because "this is obscene Before submission, the State filed a motion to
material." [14]Citing Snyder v. Phelps, 562 U.S. dismiss, arguing that this Court should dismiss
443, 452 (2011), the State argues that we should appellate cause number 01-20-00858-CR, trial
apply intermediate scrutiny to section 43.262 cause number 1623191, which is the underlying
because it does not apply to matters of public criminal prosecution of section 43.262, because
concern. The State raises its argument that appellant's application for writ of habeas corpus
intermediate scrutiny should apply, here, on was assigned to trial cause number 1685846,
appeal, in the first instance. Notwithstanding that appellate cause number 01-20-00859-CR.
the State has waived this argument, we decline the Appellant did not respond to the motion to
State's invitation because Synder addressed dismiss.
whether the First Amendment could prohibit
holding the defendant liable from claims of
intentional infliction of emotional distress. Snyder
made no pronouncement that content-based
statutes, such as section 43.262, receive
intermediate scrutiny. [15]See Brown v. Entm't
Merchs. Ass'n, 564 U.S. 786, 792 (2011) ("But
without persuasive evidence that a novel
restriction on content is part of a long (if
heretofore unrecognized) tradition of proscription,
a legislature may not revise the 'judgment [of] the
American people,' embodied in the First
Amendment, 'that the benefits of its restrictions on
the Government outweigh the costs.'"). [16] The
State argues that appellant did not preserve an
overbreadth challenge. We disagree. Appellant's
application for writ of habeas argued that the
statute restricts more speech than the constitution
permits and that it violated the rights of too many
third parties. Likewise, at the hearing on the writ
application, appellant argued that section 43.262
was overbroad. At the hearing, the State
recognized appellant's overbreadth challenge in
closing when it argued that the statute was not
overbroad. We conclude that appellant raised both
an overbreadth challenge that the statute restricted
more speech than the constitution permits and that
it violated the rights of too many third parties. See
Thompson, 443 S.W.3d at 348 (citing R.A.V. v.
City of St. Paul, 505 U.S. 377, 381 n.3

13
Ex parte Lowry No. 01-20-00858-CR (Tex. App. Oct. 26, 2021)

14