Opinion
01-21-00532-CR
03-28-2023
EX PARTE DONALD K. LIMBERGER, Appellant
Do Not Publish.
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1717019
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
MEMORANDUM OPINION
PER CURIAM
Appellant Donald K. Limberger appeals from the trial court's denial of his application for writ of habeas corpus. We affirm.
Background
Appellant was charged by indictment with violation of section 21.16(b), the offense of unlawful disclosure or promotion of intimate visual material. See Tex. Penal Code § 21.16(b). This statute is "commonly known as the 'revenge porn' statute." Ex parte Jones, No. PD-0552-18, 2021 WL 2126172, at *1 (Tex. Crim. App. May 26, 2021) (per curiam) (not designated for publication).
The indictment against appellant provides:
DONALD K LIMBERGER, hereafter styled the Defendant, heretofore on or about June 1, 2020, did then and there unlawfully, without the effective consent of Jami Wright, hereinafter called the Complainant, and with the intent to harm the Complainant, disclose visual material, namely, photographs of the Complainant which depicted the Complainant with the Complainant's female nipple exposed, and at the time of the disclosure, the Defendant knew and had reason to believe that said visual material was obtained by the Defendant under circumstances in which the Complainant had a reasonable expectation that said visual material would remain private and the disclosure of said visual material caused harm to the Complainant, namely by the Defendant sending these photographs to the Complainant and her mother Carol Wright, and the disclosure of said visual material revealed the identity of the Complainant, namely by clearly showing the Complainant's face.
Appellant filed a pretrial application for writ of habeas corpus challenging the constitutionality of the statute and the trial court denied habeas relief by order signed on September 17, 2021, expressly declining to find section 21.16(b) unconstitutional.
After the State challenged jurisdiction, appellant filed an amended application for writ of habeas corpus and brief in support of the application, arguing that the trial court had jurisdiction to hear his application because he was in constructive custody under Article 11.21 of the Texas Code of Criminal Procedure and because he was challenging the constitutionality of a statute. Appellant argued that section 21.16(b) violated his First and Fourteenth Amendment rights, as well as article 1, sections 7 and 10 of the Texas Constitution. Appellant claimed that section 21.16(b) is overbroad, or alternatively, vague under the First Amendment.
Jurisdiction
Although the State complained that the trial court lacked jurisdiction, this was raised before appellant amended his application. The trial court did not mention the jurisdictional issue in its order, but instead addressed the merits, indicating that the trial court determined it had jurisdiction.
To be entitled to habeas corpus relief, an applicant must show that he was "confined" or "restrained" unlawfully at the time he filed the application. See Tex. Code Crim. Proc. art. 11.01 (writ of habeas corpus may be used when any person is restrained in his liberty); State v. Collazo, 264 S.W.3d 121, 125-26 (Tex. App.- Houston [1st Dist.] 2007, pet. ref'd) (stating that, to be entitled to relief, habeas applicant must show he or she is illegally restrained or, if no longer confined, he or she is subject to collateral consequences). In his amended application, appellant alleged that he was in constructive custody and was restrained unlawfully. Section 11.21 defines constructive custody as detention by threat, menace, fear or the exercise of control and detention of an individual within certain limits. See Tex. Code Crim. Proc. art. 11.21. Appellant was restrained of his liberty within the meaning of the Code of Criminal Procedure articles 11.01 and 11.21 when he was charged with the offense of unlawful disclosure or promotion of intimate visual material and released on bond. See Ex parte Wiese, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (holding that Wiese was illegally restrained of liberty when charged with offense and released on bond to await trial). Accordingly, the trial court had jurisdiction to entertain appellant's application.
Constitutionality of Section 21.16(b)
The statute appellant is charged with violating is section 21.16(b) of the Texas Penal Code. See Tex. Penal Code § 21.16(b). This section provides that a person commits an offense if:
(1) without the effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;
(2) at the time of the disclosure, the person knows or has reason to believe that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.Id.
Appellant asserted that section 21.16(b) was facially overbroad and vague and was a content-based restriction on speech and thus was presumptively invalid under the First Amendment. The First Amendment protects the freedom of speech and this right to freedom of speech applies to the states by virtue of the Fourteenth Amendment. See State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015).
The Court of Criminal Appeals has addressed the issue raised in this appeal and upheld the constitutionality of this statute. Jones, 2021 WL 2126172, at *1, 17. Although Jones resolves the sole issue in this appeal, the opinion is unpublished, which means that it has "no precedential value and must not be cited as authority by counsel or by a court." See Tex. R. App. P. 77.3.
This Court has faced this same conundrum in two previous cases: Ex parte Mora, 634 S.W.3d 255, 255 (Tex. App.-Houston [1st Dist.] 2021, pet. ref'd), and Ex parte McGregor, No. 01-18-00346-CR, 2021 WL 6067349, at *4 (Tex. App.- Houston [1st Dist.] Dec. 23, 2021). In both Mora and McGregor, this Court adopted the Jones reasoning. See Mora, 634 S.W.3d at 256; McGregor, 2021 WL 6067349, at *4.
In Jones, the Court of Criminal Appeals specifically held that section 21.16(b) does not violate the First Amendment, and although Jones is not binding authority on this Court, "as a practical matter its reasoning calls for the same result in this materially indistinguishable appeal." Mora, 634 S.W.3d at 256 (adopting reasoning of Jones and citing to Jones, 2021 WL 2126172, at *17). Accordingly, we adopt the Court of Criminal Appeals' reasoning in Jones and hold that section 21.16(b) does not violate the First Amendment to the United States Constitution. See Jones, 2021 WL 2126172, at *17.
In his amended application for writ of habeas corpus, appellant asserts that section 21.16(b) violates not only the First Amendment, but also article 1, sections 7 and 10 of the Texas Constitution. However, appellant presented no argument concerning any constitutional violations other than those concerning the First Amendment. Because appellant failed to present any argument to the trial court explaining how section 21.16(b) violated sections 7 and 10 of article 1 of the Texas Constitution, we may not consider this on appeal. See State v. Romero, 962 S.W.2d 143, 144 (Tex. App.-Houston [1st Dist.] 1997, no pet.).
We affirm the trial court's order. Any pending motions are dismissed as moot.