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In re D.Y.

Court of Appeals of Texas, Second District, Fort Worth

May 18, 2017

IN THE MATTER OF D.Y.

         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-102941-16.

          PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          MARK T. PITTMAN JUSTICE

         Juvenile Appellant D.Y. and the State stipulated to the evidence supporting the State's allegation that she had violated penal code section 21.15(b)(2) by intentionally or knowingly "photograph[ing] or by videotape or other electronic means, namely a cell phone, record[ing], broadcast[ing] or transmit[ting], at a location that is a bathroom or private dressing room, a visual image of [another female minor] without [that minor's] consent and with the intent to invade [her] privacy." The trial court found the allegations true, adjudicated Appellant delinquent, and placed Appellant on probation for one year. In her sole issue, Appellant contends that the statute is "void for overbreadth" under the Free Speech Clause of the First Amendment. Because we uphold the statute's constitutionality, we affirm the trial court's judgment.

         I. Standard of Review

         We review the issue of a statute's facial constitutionality de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2014).

         II. The Burden of Proof and Level of Scrutiny Depend on Whether the Statute Is Content-Based.

         Generally, we presume that the statute is valid, and the challenger has the burden to prove that the statute is unconstitutional. Id. at 15. However, when a law criminalizes speech or expression based on its content, we presume that the law is unconstitutional, and the State then has the burden to prove that the statute is valid. Id.

         We apply intermediate scrutiny to content-neutral statutes, but content-based statutes receive strict scrutiny. Ex parte Thompson, 442 S.W.3d 325, 345 (Tex. Crim. App. 2014).

         The statute at issue provides that "[a] person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person . . . photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room." Tex. Penal Code Ann. § 21.15(b)(2) (West Supp. 2016). While the parties agree that photographs and visual recordings, as well as the acts of creating them, are inherently expressive and protected by the First Amendment, see Thompson, 442 S.W.3d at 336-37, they disagree about which level of scrutiny we should apply to determine whether the statute is facially constitutional. Appellant argues that strict scrutiny applies because section 21.15(b)(2) is content-based; the State argues that intermediate scrutiny applies because the statute is content-neutral.

         III. The Texas Court of Criminal Appeals Has Already Determined That the Statute Survives Strict Scrutiny.

         We do not need to resolve the parties' disagreement about the appropriate level of scrutiny to apply because the Texas Court of Criminal Appeals has already concluded that the statute satisfies the strict scrutiny test. See id. at 348-49. When strict scrutiny applies, we may uphold a statute against a First Amendment challenge "only if it is narrowly drawn to serve a compelling government interest. In this context, a regulation is narrowly drawn if it uses the least restrictive means of achieving the government interest." Id. at 344 (citations and internal quotation marks omitted). In analyzing and ultimately striking down the former improper photography and visual recordings statute[2] because it failed the strict scrutiny test, the Texas Court of Criminal Appeals pointed to the statute at issue before us as an example of a statute that would satisfy that test. Id. The Thompson court stated,

• "Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner",
• "[Substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private ...

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