The State of Texas v. Israel Calvo--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS, )

) No. 08-05-00002-CR

Appellant, )

) Appeal from the

v. )

) 210th District Court

ISRAEL CALVO, )

) of El Paso County, Texas

Appellee. )

) (TC# 20040D04118)

)

O P I N I O N

The State of Texas appeals from an order granting Appellee=s motion to quash the indictment on the grounds that Section 21.15 of the Texas Penal Code is unconstitutional. In its sole issue, the State contends the trial court erred in holding the statute at issue is unconstitutionally overbroad and vague. We find that we must reverse the trial court=s order and remand the cause to the trial court.

Appellee, a professional photographer, was charged by indictment with improper photography or visual recording under Section 21.15 of the Texas Penal Code. Facts in the record indicate that Appellee took numerous photographs of his friend=s seven-year-old daughter while she was asleep in her underwear. The majority of the photographs of the child were taken from an angle to show her clothed pubic and anal areas. In a statement, Appellee admitted that he lifted the child=s shirt and posed the child while photographing her. Neither the child nor her parents consented to the taking of the photographs. Appellee went to Wal-Mart to have the film developed, and Wal-Mart employees contacted the police because they believed the photographs were inappropriate. A subsequent search of Appellee=s house resulted in the discovery of several photographs of cheerleaders, the majority of which showed the cheerleader=s underwear as they performed kicks and cheers.

Appellee filed a motion to quash the indictment, arguing inter alia that Section 21.15 of the Penal Code was unconstitutional because it violated the First Amendment, was overbroad, and vague. After a hearing, the trial court granted the motion. The State now appeals.

Standard of Review

The constitutionality of a criminal statute is a question of law which we review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex.App.--Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.App.--Houston [1st Dist.] 1997, pet. ref=d). When reviewing the constitutionality of a statute, we presume the statute is valid and the Legislature has not acted unreasonably or arbitrarily in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. We are obliged to uphold the statute if we can determine a reasonable construction which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979).

Section 21.15(b) of the Texas Penal Code

Appellee was charged with violating Section 21.15(b)(1) of the Penal Code, which provides that:

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means visually records another:

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

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

Tex.Pen.Code Ann. ' 21.15(b)(Vernon Supp. 2006).

At the hearing and in his motion, Appellee challenged the validity of the statute on the basis that on its face it is overly broad, vague, and violates the First Amendment.1

A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, it sweeps within its coverage speech or conduct protected by the First Amendment. Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App. 1989), quoting Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App. 1984); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2917-18, 37 L. Ed. 2d 830 (1973). Our first task is to determine whether the statute reaches a substantial amount of constitutionally protected conduct. Villageof Hoffman Estates, 455 U.S. at 494, 102 S. Ct. at 1191. If it does not, the overbreadth challenge must fail. Id.

The First Amendment prohibits laws that abridge freedom of speech. U.S. Const. amend. I. Appellee asserts that the taking of photographs, even those of a sexual nature, is afforded First Amendment protection. He also argues that the statute has a substantial impact on free speech because there is no careful delimitation of criminal conduct, but rather anyone who takes photographs of non-consenting persons is at risk of being in violation of the law.

However, in order to commit the proscribed conduct, one must have the specific intent Ato arouse or gratify the sexual desire of any person.@ Tex.Pen.Code Ann. ' 21.15(b)(1)(B). A statute that prohibits intentional conduct is rarely subject to a facial overbreadth challenge. Sullivan v. State, 986 S.W.2d 708, 712 (Tex.App.--Dallas 1999, no pet.)(indecency with a child statute held not constitutionally overbroad where no constitutionally protected conduct is included). Further, the statute requires the lack of consent by the complainant. See Tex.Pen.Code Ann. ' 21.15(b)(1)(A). Thus, by its language, the statute proscribes only that conduct which is done with the requisite intent to arouse and gratify the sexual desire of any person and without the complainant=s consent. As the legislative history demonstrates, the Legislature=s intent in enacting Section 21.15 of the Penal Code was to create Aan offense prohibiting the covert photography or visual recording of another for an improper sexual purpose.@ [Emphasis added]. See Acts of 2001, 77th Leg., R.S., ch. 458, ' 1, 2001 Tex.Gen.Laws 893. See also House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 73, 77th Leg., R.S. (2001). In 2003, the Legislature amended the statute and clarified its intent to protect non-consenting individuals from an offensive invasion of their privacy. See Acts of 2003, 78th Leg., R.S., ch. 500, ' 1, 2003 Tex.Gen.Laws 1771; see also House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1060, 78th Leg., R .S. (2003).2

As we noted before, we must uphold the challenged statute if a reasonable construction can be ascertained which will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. 1979); see also Ex parte Granviel, 561 S.W.2d at 511 (A>before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.=@). The most reasonable interpretation of the statute and its legislative intent is that the proscribed conduct when committed with the requisite intent and without consent, constitutes an offensive invasion of the privacy rights of a non-consenting party being recorded. Under such restrictions, the statute cannot be said to criminalize a substantial amount of protected expressive activity. Rather, it proscribes only conduct that constitutes an invasive act, which has also been committed with the intent to arouse or gratify someone=s sexual desires. Despite Appellee=s assertions, the statute does not criminalize innocent picture-taking which may unexpectedly invoke sexual desire in others in spite of the actor=s intentions. Appellee=s facial overbreadth challenge must fail because he fails to show how the statute substantially reaches constitutionally protected activity.

We next turn to Appellee=s challenge to the validity of the statute based on vagueness. A statute is void for vagueness when it fails to give a person of ordinary intelligence fair notice of the conduct prohibited and is so indefinite that it encourages arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 99, 33 L. Ed. 2d 222 (1972); Kolender, 461 U.S. at 357, 103 S. Ct. at 1858; Clark, 665 S.W.2d at 482. A defendant who engages in some conduct that is clearly proscribed by the statute cannot complain of its vagueness as applied to the conduct of others. Village of Hoffman Estates, 455 U.S. at 495, 102 S. Ct. at 1191. Therefore, when asserting a facial vagueness challenge to a statute which implicates no constitutionally protected conduct, the individual asserting a facial vagueness challenge must establish that the statute is vague as applied to his conduct as well as demonstrate that the enactment is impermissibly vague in all of its applications. Id.; see also Bynum, 767 S.W.2d at 773-74. Thus, where no First Amendment rights are involved, as in this case, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party=s specific conduct. Bynum, 767 S.W.2d at 774.

In examining a criminal statute for vagueness, we employ a two-pronged inquiry: (1) whether the statutes gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) whether the statute provides sufficient notice to law enforcement to prevent arbitrary or discriminatory enforcement. See Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App. 1996); Long v. State, 931 S.W.2d 285, 287 (Tex.Crim.App. 1996).

We now consider whether the statute is impermissibly vague as applied to Appellee=s conduct in this case. First, we note that in Appellee=s motion and at the hearing, Appellee raised no argument that the statute was unconstitutionally vague as applied to him. In his appellate brief, Appellee now argues that A[d]ue to the emunerated statute=s defects, Appellee could not have been aware of any prospective infringement of [the statute].@ Appellee also argues that under the statute, he could be considered committing a crime by taking photographs of either the sleeping child in her underwear or the photographs of the cheerleaders that appear in the record. However, Appellee=s argument belies the few facts introduced at the motion hearing. Appellee was charged with improper photography under Section 21.15, by indictment which alleged that:

[O]n or about the 9th day of March, 2004 . . . ISRAEL CALVO, hereinafter referred to as Defendant,

did then and there with the intent to arouse and gratify the sexual desire of said defendant intentionally and knowingly, visually record [B.R.] by photograph without the consent of [B.R.] . . . .

Facts at the hearing indicated that Appellee took numerous photographs of the sleeping child, B.R., admitted in his statement that he lifted up the child=s shirt and re-positioned the child in order to photograph her anal and vaginal areas. Indeed, Appellee took several of the photographs in such close proximity to the child=s buttocks and vagina that only these areas of her body are visible. The specific intent to gratify the sexual desire of any person may be inferred from a person=s conduct, a person=s remarks, and all surrounding circumstances. Santos v. State, 961 S.W.2d 304, 308 (Tex.App.--Houston [1st Dist.] 1997, pet. ref=d).

It appears that the statute clearly proscribes Appellee=s conduct and adequately details the prohibited conduct to a degree that law enforcement authorities will not resort to arbitrary or discriminatory enforcement of the statute. We conclude that Appellee had sufficient notice that his conduct was prohibited by the statute and was not arbitrarily arrested and thus, his argument that the statute is unconstitutionally vague as applied to him must fail. Because the statute is not unconstitutional as applied to Appellee, he cannot establish that the statute operates unconstitutionally in all its applications. Appellee failed to met his burden to establish that Section 21.15 is unconstitutional, therefore the trial court erred in granting his motion to quash the indictment on that ground. The State=s sole issue for review is sustained.

Accordingly, we reverse the trial court=s order and remand the cause to the trial court for further proceedings.

September 14, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)

[1] Appellee did not challenge the portion of Section 21.15 which makes it an offense to Apromote@ improper photographs or visual recordings. See Tex.Pen.Code Ann. ' 21.15(b)(2).

2 We note that in its bill analysis, the Legislature reasoned that it was necessary to expand the offensive conduct to include promotion of such photography or visual recording under Section 21.15 because of Athe recent epidemic of video recordings being produced via hidden broadcast cameras in locker rooms, bathrooms and other various places, that are then being promoted on the web and other places, without the consent of the person recorded . . .,@ thereby prohibiting the promotion of electronic recordings Ain regards to the rights of those persons recorded.@ House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1060, 78th Leg., R .S. (2003).