Affirmed and Memorandum Opinion filed October 4, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00575-CR

EX PARTE MEDGER CHAUNCY DUCKENS

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1688384

M E M O R A N D U M O P I N I O N

In this appeal from a judgment denying a pretrial application for writ of habeas 

corpus, appellant Medger Chauncy Duckens contends that Penal Code section 43.26, 

which criminalizes certain conduct pertaining to child pornography, is facially 

overbroad and violates the free speech clauses of the United States and Texas 

Constitutions. See Tex. Penal Code § 43.26; U.S. Const. amend. I; Tex. Const. art. I, 

§ 8. We affirm.
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Background

Penal Code section 43.26 is entitled “Possession or Promotion of Child 

Pornography.” Under subsection 43.26(e), a person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with 

intent to promote material described by Subsection (a)(1); and

(2) the person knows that the material depicts the child as described by 

Subsection (a)(1).

Tex. Penal Code § 43.26(e). The material described in subsection (a)(1) is “visual 

material that visually depicts a child younger than 18 years of age at the time the 

image of the child was made who is engaging in sexual conduct, including a child 

who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), 

(6), (7), or (8).” Id. § 43.26(a)(1). To “promote” the described material includes its 

manufacture. Id. § 43.25(5) (defining “promote”). 

A Harris County grand jury indicted appellant on one count of promotion of 

child pornography in violation of section 43.26(e). The indictment alleged that 

appellant:

unlawfully, intentionally and knowingly manufacture[d] visual 

material, namely manufacture[d] a digital image that visually depicts a 

child younger than eighteen years of age at the time the image was 

made, who is engaging in sexual conduct, to wit: LEWD EXHIBITION 

OF THE GENITALS, and [appellant] knew that the visual material 

depicted the child engaging in said sexual conduct.

Appellant sought pretrial dismissal of the charge in an application for writ of 

habeas corpus. In his Second Amended Application for Writ of Habeas Corpus,

appellant asserted that section 43.26 is facially unconstitutional as overbroad for 

three reasons:

• it punishes as “child pornography” the possession of images of 

people who may effectively consent to sexual conduct;
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• it punishes as “child pornography” the possession of images of 

“lewd exhibitions of . . . the anus, or any portion of the female 

breast below the top of the areola,” which is speech that the 

United States has never recognized as child pornography; and

• it punishes as “child pornography” the possession of images of 

“simulated” sexual conduct, which does not implicate the 

purposes of the child pornography exception to free speech.

The trial court held a hearing at which no evidence was taken. Following the 

hearing, the trial court denied appellant’s request to dismiss the indictment. 

Appellant timely appealed.

Analysis

In appellant’s first four issues on appeal, he contends that section 43.26 is 

facially unconstitutional: under the United States and Texas Constitutions because 

it forbids as child pornography images of people who are not children for purposes 

of engaging in sexual conduct, i.e., seventeen-year-olds; under the United States 

Constitution because it punishes as child pornography images of body parts that the 

Supreme Court has not categorized as child pornography; and under the First 

Amendment to the United States Constitution because it punishes as child 

pornography images of simulated sexual conduct. In appellant’s fifth issue, he 

contends that the statute is facially unconstitutional under the First Amendment to 

the United States Constitution because it restricts possession by a person under 

eighteen years of age of images of himself or herself. And in his sixth issue, he 

asserts that if any one of the above-referenced “forms of overbreadth” did not 

individually render the statute unconstitutionally overbroad, “some combination of 

them would.” 
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A. Standard of Review and Applicable Law

We generally review a trial court’s ruling on an application for writ of habeas 

corpus using an abuse-of-discretion standard, and we view any evidence in the light 

most favorable to that ruling and defer to implied factual findings supported by the 

record. Ex parte Fusselman, 621 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 

2021, pet. ref’d). Pretrial habeas corpus proceedings are separate criminal actions, 

and the applicant has the right to an immediate appeal before trial begins. Id. (citing 

Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 

649-50 (Tex. Crim. App. 2005)). Pretrial habeas, followed by an interlocutory 

appeal, is an extraordinary remedy, reserved for situations when the protection of 

the applicant’s substantive rights or the conservation of judicial resources are better 

served by interlocutory review. Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex. 

Crim. App. 2017). Unless double jeopardy is involved, pretrial habeas is not 

available unless the question presented, if resolved in the defendant’s favor, would 

result in an immediate release from custody. Id.

A defendant may seek pretrial habeas relief only in limited circumstances.

Greenwell, 159 S.W.3d at 649-50 (citing Ex parte Smith, 178 S.W.3d 797, 801 (Tex. 

Crim. App. 2005)). Those limited circumstances include a facial challenge to the 

constitutionality of a statute. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 

2010). A party raising a facial challenge to the constitutionality of a statute must 

demonstrate that the statute operates unconstitutionally in all of its applications. 

State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013); State ex rel. Lykos 

v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). In such a facial challenge, 

courts consider the statute only as it is written, rather than how it operates in practice. 

Fine, 330 S.W.3d at 908. A facial constitutional challenge to a statute is extremely 

difficult to prove, as all courts presume that the Legislature enacted a constitutional 
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law and all courts must seek to uphold the facial constitutionality of legislative 

enactments. Id. at 909. 

B. Jurisdiction

We first address the trial court’s jurisdiction. To attack the facial 

constitutionality of a penal statute, the defendant must show that the challenged 

statute is “being invoked against him,” Ingram, 533 S.W.3d at 892, which generally 

means that the challenger “was convicted or charged under that portion of the statute 

the constitutionality of which he questions.” Fine, 330 S.W.3d at 909; see Ex parte 

Usener, 391 S.W.2d 735, 736 (Tex. Crim. App. 1965); Boas v. State, 604 S.W.3d 

488, 493 (Tex. App.—Houston [14th Dist.] 2020, no pet.). A party generally lacks 

standing to challenge the constitutionality of a statute under which he has not been 

charged. E.g., Fine, 330 S.W.3d at 909 (explaining that accused must show that he 

was convicted or charged under “portion of the statute the constitutionality of which 

he questions”).

In his third issue, appellant complains that section 43.26 is facially 

unconstitutional because the statute’s inclusion of “lewd exhibition of ... the anus, 

or any portion of the female breast below the top of the areola” “expands the

definition of the content of the forbidden pornography beyond that which the 

Supreme Court has allowed to be restricted.” Additionally, in his fourth issue, 

appellant urges that the statute is facially overbroad because it punishes as child 

pornography images of “simulated” sexual conduct. 

Appellant has not shown that the portions of section 43.26 about which he 

complains in his third and fourth issues have been invoked against him. He was not 

charged with the promotion of visual material depicting the “lewd exhibition of ... 

the anus, or any portion of the female breast below the top of the areola” of a child 

younger than eighteen, or with the promotion of visual material depicting simulated 
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sexual conduct of a child younger than eighteen. He was charged only with 

manufacturing a digital image visually depicting a child younger than eighteen at the 

time the image was made, who is engaging in “lewd exhibition of the genitals.” 

Thus, the trial court lacked jurisdiction to address the purported facial challenges 

asserted in appellant’s third and fourth issues. E.g., State v. Stubbs, 502 S.W.3d 218, 

223 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (trial court lacked 

jurisdiction to declare entire online impersonation statute unconstitutional when 

appellant was only indicted under subsection (a) of the statute); see also Ex parte 

Maddison, 518 S.W.3d 630, 635 (Tex. App.—Waco 2017, pet. ref’d) (same); Boas, 

604 S.W.3d at 494-95. Even a favorable resolution of these issues would not deprive 

the trial court of power to proceed on appellant’s current charge or result in his 

immediate release and addressing these issues would result in a prohibited advisory 

opinion. See Ingram, 533 S.W.3d at 891-92; Smith, 185 S.W.3d at 892 (explaining 

that, generally, “a claim is cognizable in a pretrial writ of habeas corpus if, resolved 

in the defendant’s favor, it would deprive the trial court of the power to proceed and 

result in the appellant’s immediate release”); cf. Salinas v. State, 464 S.W.3d 363, 

366 (Tex. Crim. App. 2015) (explaining that it is well-settled that a statute’s 

constitutionality should not be determined in any case unless that determination is 

“absolutely necessary to decide the case in which the issue is raised”); Fine, 330 

S.W.3d at 909. 

Accordingly, we overrule appellant’s third and fourth issues.

C. Constitutional Overbreadth Analysis

The trial court had jurisdiction, however, over the contentions raised in 

appellant’s first and second issues because those arguments concern facial 

challenges to portions of the statute appellant stands accused of violating. In those 

issues, appellant argues that the statute punishes the promotion of visual material 
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visually depicting a seventeen-year-old engaging in sexual conduct. As appellant 

contends, a seventeen-year-old person in Texas can “effectively consent to sexual 

contact with a person of any age.” According to appellant, the person depicted in 

the visual image that is the subject of the indictment was seventeen years old when 

the image was made. For these reasons, appellant says the statute is facially 

overbroad under both the U.S. and Texas Constitutions.

This court has recently addressed and rejected identical arguments, as have

the First and Ninth Courts of Appeals. Fusselman, 621 S.W.3d at 117-22; Ex parte 

Fusselman, Nos. 09-21-00129-CR, 09-21-00130-CR, 09-21-0131-CR, 09-21-

00132-CR, 09-21-00133-CR, 09-21-00134-CR, 09-21-00135-CR, 09-21-00136-

CR, 09-21-00137-CR, 09-21-00138-CR, 2022 WL 1395316, at *2 (Tex. App.—

Beaumont May 4, 2022, no pet. h.) (mem. op., not designated for publication); Ex 

parte Dehnert, 605 S.W.3d 885, 890-96 (Tex. App.—Houston [1st Dist.] 2020, pet. 

ref’d).

Appellant acknowledges this court’s binding precedent in Fusselman, and he 

does not seek to distinguish it. For the reasons stated in Fusselman, we hold here 

that section 43.26 is not unconstitutionally overbroad because it prohibits possession 

of pornography that depicts seventeen-year-olds, who, as appellant urges, “are not

children for purposes of engaging in sexual conduct.” Fusselman, 621 S.W.3d at 

117-20; see also Dehnert, 650 S.W.3d at 890-96. 

We overrule appellant’s first two issues.

D. Appellant’s Fifth and Sixth Issues are Unpreserved

In appellant’s fifth issue, he asserts that section 43.26 is unconstitutional 

because it restricts possession by a person under eighteen years of age of images of 

himself or herself. In his sixth issue, he contends that, even if none of the forms of 
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overbreadth alleged in his first five issues would render section 43.26 “substantially 

overbroad, . . . some combination of them would.” Appellant addressed neither issue 

in his live application—his second amended writ application filed February 25, 

2020.1 Accordingly, appellant did not preserve these issues for our review. See Tex. 

R. App. P. 33.1; Fusselman, 621 S.W.3d at 122-23; State v. Condran, 951 S.W.2d 

178 (Tex. App.—Dallas 1997), pet. dism’d as improv. granted, 977 S.W.2d 144 

(Tex. Crim. App. 1998); Galvan v. State, 869 S.W.2d 526, 528 (Tex. App.—Corpus 

Christi 1993, pet. ref’d) (when reviewing an appeal from the denial of a pretrial 

application for writ of habeas corpus, we review the record as it existed before the 

trial court at the time of the habeas hearing).

We overrule appellant’s fifth and sixth issues.

Conclusion

Having considered and rejected all reasons advanced by appellant for holding 

Penal Code section 43.26 unconstitutionally overbroad, we overrule appellant’s 

issues. We affirm the trial court’s judgment denying appellant’s second amended 

application for writ of habeas corpus.

/s/ Kevin Jewell

Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.

Do Not Publish — Tex. R. App. P. 47.2(b).

1 Appellant raised his fifth issue in his initial writ application and his first amended writ 

application. But he excluded this issue entirely from his second amended writ application, which 

was the live pleading at the time of the court’s hearing on his application.