Court of Appeals of Texas, Second District, Fort Worth
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, KERR, and PITTMAN, JJ.
MEMORANDUM OPINION 
T. PITTMAN JUSTICE
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.
Standard of Review
review the issue of a statute's facial constitutionality
de novo. Ex parte Lo, 424 S.W.3d 10, 14
(Tex. Crim. App. 2014).
The Burden of Proof and Level of Scrutiny Depend on Whether
the Statute Is Content-Based.
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.
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).
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
The Texas Court of Criminal Appeals Has Already Determined
That the Statute Survives Strict Scrutiny.
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 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
• "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 ...