Summary
affirming constitutionality of statute criminalizing “improper photography or visual recording” that required specific intent to arouse or gratify sexual desire of any person; concluding that plain language of statute narrowed prescribed conduct
Summary of this case from Lo v. StateOpinion
No. 05-06-00486-CR
Opinion filed April 10, 2007.
On Appeal from the 416th District Court, Collin County, Texas, Trial Court Cause No. 416-81095-04.
Before Justices LANG, LANG-MIERS, and MAZZANT.
OPINION
Appellant was convicted by a jury of "improper photography or visual recording" and the trial court assessed his punishment at two years' confinement and a $1,000 fine. In two issues, appellant argues the trial court erred when it: (1) overruled his motion to declare section 21.15 of the Texas Penal Code unconstitutionally overbroad, and (2) overruled his motion to suppress the evidence of the contents of the videotape seized without a warrant. For the following reasons, we affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2003, about 12:45 AM, Officer Pfahning of the Plano Police Department arrived at 1521 Belgrade Street in Plano, Texas in response to a phone call reporting a prowler. Upon arrival at that address, Officer Pfahning observed appellant, dressed in dark clothing, "leaning over, looking in the front window" of the house. He shined his flashlight on appellant and asked him what he was doing. Appellant stood up and tried to run. Officer Pfahning caught appellant and noticed "a silver object," later identified as a videocamera, in appellant's hand. Officer Pfahning detained appellant, placed him in handcuffs, and arrested him for disorderly conduct. Also, he seized appellant's video camera which contained a videotape inside. Appellant made statements to Officer Pfahning that "the camera contained other instances of him videotaping girls, just like he had done that night or was going to do that night, and he began to kind of sob and cry and state that, you know, he needed help." Further, he explained to Officer Pfahning that he became aroused during the videotaping process and he masturbated at home while he viewed the tape. Officer Pfahning stated he seized the camera as a search incident to arrest and because he "believed that it would give evidence to other instances of disorderly conduct or other offenses." Detective Epperson testified that when he arrived at work on the morning of November 4, 2003, he found Officer Pfahning's arrest report and a videocamera with a videotape inside on his desk. After reading the arrest report, without obtaining a warrant, he viewed the entire videotape, which was labeled "private shows." The defendant was in custody when Detective Epperson viewed the videotape. Detective Epperson stated the videotape contained numerous scenes of girls videotaped through their bedroom windows in various states of nudity. Then, Detective Epperson read appellant the Miranda warnings and interviewed him. Appellant voluntarily waived his Miranda rights and admitted videotaping multiple females through their bedroom windows. Later, appellant admitted to another Detective, Luke Grant, that he videotaped the females for the purpose of sexual gratification. Prior to trial, appellant filed a motion to suppress the contents of the videotape and a motion to declare section 21.15(b)(1) of the Texas Penal Code unconstitutional for overbreadth. The trial court denied both of his motions, stating in pertinent part:"The Court is overruling the objection to the contents of the tape seized from the defendant. The Court finds it was lawfully seized and that the officers had the ability to view the contents of the tape without obtaining a warrant first, as it was in the lawful custody of the police authority and that there was no violation of the State or Federal Constitution in viewing that tape."At trial, the videotape was played for the jury. The jury found appellant guilty of the offense of improper photography or visual recording under section 21.15(b)(1) of the Texas Penal Code. He now appeals.
II. CONSTITUTIONALITY OF STATUTE
In his first issue, appellant contends section 21.15(b)(1) of the Texas Penal Code is unconstitutional under the First Amendment to the United States Constitution because it is overbroad. First, he argues section 21.15(b)(1) is overbroad because it fails to narrow the prohibited conduct to "visually recording another person's genitalia or those areas of the body wherein a person would have a reasonable expectation of privacy." Second, he argues the statute, "fails to state that for such covert recording to be unlawful, the person being recorded must be in a place where that person would have a reasonable expectation of privacy." The State responds appellant has not met his burden in proving the statute is overbroad because he has not shown the statute reaches a "substantial" amount of constitutionally protected conduct or speech. We decide this issue against appellant.A. Standard of Review and Applicable Law
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 a statute if we determine a reasonable construction which will render it constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979). An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge. See generally Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Before a statute will be held unconstitutional on its face, the overbreadth must be substantial. See Members of City Council of City of Los Angeles, 466 U.S. at 800. "The concept of `substantial overbreadth' is not readily reduced to an exact definition." Id. However, a statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. See Id. Rather, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Id. at 801. 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.).C. Application of Law to Facts
Appellant was charged with violating Section 21.15(b)(1) of the Texas Penal Code, entitled "Improper Photography or Visual Recording," which provides in pertinent part:(b) 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. See Tex. Pen. Code Ann. § 21.15(b) (Vernon Supp. 2006).Appellant argues section 21.15(b)(1) is unconstitutionally overbroad because it "embraces a substantial amount of protected activity and expression." He argues the "commonness of cameras and videocameras" and the fact that the conduct is in public "makes it reach a substantial amount of potentially protected conduct." We disagree. In attempting to meet his burden of showing the statute is unconstitutionally overbroad on its face, appellant identifies in his appellate brief various examples of "conduct that modern society tolerates" to which he asserts the statute could be applied unconstitutionally. He offers the examples of a person with a recognized "fetish," or someone "videotaping unknown people at one of Texas' many public beaches or lakes" to demonstrate the statute's overbreadth. The State responds appellant's arguments are without merit because the statute "would cover such recordings only if they were made with the non-constitutionally protected intent of gaining sexual arousal or gratification." The examples appellant cites in his brief do not appear in the record as having been presented to the trial court for consideration. Nevertheless, even had appellant presented these examples to the trial court, the examples are insufficient to meet appellant's burden to show the statute reaches a substantial amount of constitutionally protected conduct because, at best, these examples merely reflect instances where it is possible to imagine some unconstitutional applications. See Members of City Council of City of Los Angeles, 466 U.S. at 800. Further, and pivotal is that the statute requires both specific "intent" and "lack of consent" by the complainant. In order for one to commit the proscribed conduct under section 21.15(b)(1), one must have the specific intent to 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, 986 S.W.2d at 712. Further, the statute requires the lack of consent by the complainant. See Tex. Pen. Code. Ann § 21.15(b)(1)(A). The plain language of the statute narrows the proscribed conduct, and therefore, does not reach a substantial amount of protected conduct. We are obliged to uphold a statute if we can determine a reasonable construction which will render it constitutional. See Ely, 582 S.W.2d at 419. Accordingly, we conclude appellant has not met his burden regarding his claim of unconstitutional overbreadth of section 21.15(b)(1). Appellant's first issue is decided against him.