### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00481- CR

Ex parte Tallion Kyle Taylor

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT NO. 15- 2925 -K 368, TH E H ONO RAB LE LLOY D DOUGLAS S HAVER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Tall ion Kyle Tay lor stands char g ed by indictment with ten counts of possession of child pornography

. See Tex. Penal Code § 43.26(a)

. Appel lant filed a pretria l application for writ of habea s corpus, see Tex. Const. art. I , § 12; Tex. Code Crim. Proc. arts. 11.01, 11.05, seeking pretria l habea s corpus relief beca use the sear ch war

rant executed by law enfor ceme nt, which led to the ultimate discovery of the digital imag es forming the basis of the instant char g es of possession of child pornog raphy , was based on a probable ca u s e aff idavit that relied on an unconstitutional P enal Code statute. The trial c ourt denied ha beas r elief. 1
I n a single point of err or, appellant asser ts that the trial court abused its discretion by denying his a

pplication for writ of habea s corpus beca use the Twelfth Court of Appea ls ha s held a portion o f t h e s t at u te underlying the probable cause aff idavit in this case to be fac ially unconstitutional. W e af

firm the trial c ourt’s orde r deny ing ha beas r elief.

As we later discuss, this is appellant’ s second pretria l application for writ of habea s corpus 1 challeng ing the constitutionalit y of the statute upon which the probable cause aff idavit w as based.BACK GR OUND The rec ord ref

lects that appellant’ s ex-w i fe reported to police that appellant had threatened, via a cell phone text messag e, to disclose “an intimate photogr aph of her.” Ba sed on the information re ceive d from appe llant’s ex-wife and the evidenc e retrie ved fr om her c ell phone, the police obtained an evidentiar y sear ch war

rant for appellant’ s cell phone. I n the supporting probable

cause aff idavit, the office r aff

iant asser ted his belief that, based on the rec ited fac ts, probable cause exis ted to believe that appellant had committed the offe nse of unlawful disclosure or promotion of intimate visual materia l in violation of section 21.16 of the Texas Penal Code and that evidenc e of that crime w ould be found on appellant’ s cell phone. Appellant’s cell phone was seized pursuant 2

to that sear ch war

rant. Ultimately , as a result of subsequent sear ch war rants, a collection of

just over 300 digital imag es that p o l i ce b el ieved to be child pornog raphy was discovere d on multipl e

e le c tr o n ic device s belong ing to appellant, including appellant’ s cell phone, multipl e USB drives, and multipl e SD car ds. Appellant was arr ested and then char g ed by indictment with ten counts of

S ection 21.16 of the Texas Penal Code, intended to combat the prac tice commonly 2 ref err ed to as “reveng e p o rn o g raphy ,” see Senate Researc h Center, Bill Analy sis, Tex. S.B. 1135, 84th L eg . R.S. (2015), provides, as r eleva nt to this case : (c) A person commits an offe nse if the person intentionally threa tens to disclose, without the consent of the depicted person, visual materia l depicting another person with the person’ s intimate parts exposed or eng ag ed in sexual conduct and the a ctor make s the threat to obtain a benef it: (1) in return f

or not making the disclosure; or (2) in connec tion with the threatene d disclosure.
Tex. Penal Code § 21.16(c)

. During the course of the proce eding s below, appel l an t ’s counsel ref err ed to the statute a s “the re veng e porn statute.” 2possession of child pornog raphy pursuant to section 43.26(a) of the Texas Penal C o de, which

prohibits the possession of “visual materia l that visually depicts a child y oung er than 18 y ear s of ag e
at the time the i m age o f t h e child was made who is eng ag ing in sexual conduct.” See Tex. Penal Code § 43.26(a)

.

Approxim ately five months afte r indictment, appellant filed sever al pretria l motions, including two challengi n g t h e lawfulne ss of the initial sear ch war rant and ensuing seizure of appellant’ s cell phone: Applicant’s Pre-Trial Motion for W rit of Habeas Cor

pus and a Motion to Suppress Evidenc e Obtained Pursuant to Insufficient/Invalid W arrant W hi ch Lacked Probable
Ca u s e . I n these two motions (and at the evidentiar y hear ing) , appellant asser ted that the initial

s ea rc h war

rant was invalid beca

use the probable cause aff idavit—alleg ing the commission of t h e offe nse of unlawful discl o s u re or promotion of intimate visual materia l—relied on an unconstitutional statute. He argued that Penal Code section 21.16(c) is unconstitutional beca use it
g overns speec h-base d conduct p rot ecte d by the First Amendment. Be cause the statute is unconstitutional, appellant further maintained, the conduc t al leg ed in the probable cause aff idavit did not constitute a crime and there was no probable cause to establish a crime. There fore , acc ording
to appellant, the initial sear ch and seizure of appellant’ s cell phone, based on the evidentiar y sear ch

war rant issued upon that a ffidavit, wa s unlawful and he is entitled to pretrial habe as cor pus relief

. After conducting an evidentiar y hear ing, the trial court denied a ppellant’s application for writ of habea s corpus and motion to suppress. Appellant appea led the trial court’s order denying habea s relief to this Court. W e af fi rmed the trial court’s order , concluding that appellant’ s claim

was not cog nizable in a pret ri al application for writ of habea s corpus. See Ex parte Taylor ,

3No. 03-16-00689- CR, 2 0 1 7 W L 4 8 98989, at *4–5 (Tex. App.—Austin Oct. 26, 2017, pet. ref ’d) (mem. op., not desig nated f or publication).
Seven months afte r we issued our opinion, appellant ag ain challeng ed the lawfulne ss

o f the initial sear ch war

rant and ensuing seizure of appellant’ s cell phone by filing a subseque n t pretria l motion for writ of habea s corpus and a second motion to s uppress evidenc e. I n these
two motions, appellant ag ain argued that the initial sear ch war rant was invalid beca

use the probable

cause aff idavit relied on Penal Code section 21.16(c) , which he ag ain asser ted is unconstitutional beca use it g overns speec h-base d conduct protec ted by the First Amendment. Appellant re- urg ed his claim that “the reve ng e porn statute” is unconstitutional based on an opinion issued by the Twelfth
Court of Appea ls, in which the Tyler Court held that “Te x as Penal Code, S ec t i on 21.16(b), to the extent it proscr ibes the disclosure of visual materia l, is unconstitutional on its fa ce in violation of the Fr ee Speech clause of the First Amendment.” Ex parte Jones , No. 12-17-0 0 3 46-CR, 3

The opinion from the Ty ler Court discussed the c onstitut ionality of subsec tion (b) of the 3 statute, which provide s: (b) A per son commits an offense if: (1) without the eff

ective consent of the depicted person, the p erson intentionally discloses visual materia l depicting another person with the per son’s intimate parts exposed or eng ag ed in sexual conduct; (2) the visual materia l was obtained by the person or cre ated under circumstances in which the depicted person had a rea sonable expectation that the visual materia l would remain private; (3) the disclosur e o f t h e visual materia l cause s harm to the depicted person; and

42018 WL 2228888, at *8 (Tex. App.—Tyler May 16, 20 1 8 , p et

. g rante d). Appellant once ag ain 4
argued that, beca

use the statute is unconstitutional, the conduct al l eged in the probable cause aff idavit did not constitute a crime and there was no probable cause to establish a crime. There fore , appellant onc e ag ain claimed, the initial search a nd seizure of appellant’ s cell phone, base d on the evidentiar y s ea rc h wa rr ant i ssued upon that defe ctive affidavit, was unlawful and he is entitled to pretria l habea s corpus re lief.

The trial court co n s i d er ed appellant’ s second motion to suppress and subsequent h abeas application at a pretria l hear ing. Neither party prese nted evidenc e. Appellant’s co u n s el declined t o p re s en t arg

ument, instead rely

ing on the pleading s, maintaining that “what’s in the motion is what’s in the motion.” The prosec utor observ ed that the fac tual basis underly ing the motions had not chang ed since the prior habea s application and motion to suppress and indicated that “the only thing that’s chang ed” is the opinion from the Tyler Court of Appea ls, which is “unbinding
prec edent” that should not impact the trial court’s decision. The prosec utor asser ted that the issue
(4) the disclosure of the visual materia l reve als the identity of the depicted pe rson in any

manner , including thr oug h: (A) any acc ompanying or subsequent information or m aterial related to the visual materia l; or (B ) information or materia l provided by a third party in response to the disclosure of the visual material.
Tex. P enal Code § 21.16( b). We observe that in his motions and in his brief on appea l, appellant cites to Ex parte Jones , 4 No. 12-17-00346- CR, 2018 WL 1835925, at *1 (Te x . App.—Tyler Apr . 18, 2018). Howeve r, the Tyl er C o u rt withdrew that opinion and repla ced it with Ex parte Jones , No. 12-17-00346- CR, 2018 WL 2228888, at *8 (Tex. A pp.—Tyler May 16, 2018, pet. g rante d) on rehe aring

. The Court of Criminal Appea ls has g rante d discretionar y revie w of the Ty

ler Court’s opinion on rehe aring

. 5of the unconstitutionalit y of the statute had been previousl y raised in the prior habea s appea l and

“[a]ll of that was denied by the 3rd Court.” The trial court denied both motions. Appellant appea ls 5
the denial of

his pretrial a

pplication for wr it of habea s corpus.

DISCUSSIO N
I n a single point of err or, appellant argues, as he did befor e, that the trial court should have g rante d his pretria l application for writ of habea s corpus beca use Penal Code section 21.16(c) , the statute on which the police based their evidentiar y sear ch war

rant to seize appellant’ s cell phone, is unconstituti onal bec ause it violates the F irst Amendment.

I n revie wing a trial court’s de c ision on a pretria l application for writ of habea s corpus,

we revie w the fac ts in t h e l ight most favor able to the trial court’s ruling and, absent an abuse of discretion, uphol d the ruling

. Ex parte W heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006);
Ex parte Ali , 368 S.W .3 d 8 2 7 , 830 (Tex. App.—Austin 2012, pet. ref ’d). An abuse of discretion does not oc cur unless the trial court acts “ar bitrarily or unrea sonably ” or “without ref ere nce to any
g uiding rules and principles,” State v. Hill , 499 S.W .3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State , 810 S.W .2d 3 7 2 , 3 8 0 (T ex . Crim. App. 1990)), or unless the trial court’s decision “fa lls outside the zone of rea sonable disag ree ment,” Johnson v. State , 490 S.W .3d 895, 908 (Tex. Crim. App. 2016).

To clar ify , in our prior opinion, we concluded that appellant’ s claim was not cog nizable 5 in a pretria l habea s corpus writ. See Ex parte Taylor , No. 03-16-00689- CR, 2017 WL 4898989, at *4–5 (Tex. App.—Austin Oct. 26, 2017, pet. ref ’d) (mem. op., not desig nated for publication). There fore , we did not addre ss the m er i t s of his claim conce rning the unconstitutionalit y of Penal Code section 21.16(c ). See id. 6Pretrial habea s, followed by an interlocutory appea l, is an extraordi n ar y re medy

.

Ex parte Ingram , 533 S.W .3d 887, 891 (Tex. Crim. App. 2017) ; Ex parte Pe rry , 483 S.W .3d 884,
895 (Tex. Crim. App. 2016). “This reme dy is rese rved ‘for situations in which the protec tion of the
ap p licant’s substantive rig hts or the conser vation of judicial resour ces would be better serve d b y interlocutory

revie w.’” Ingram , 533 S.W .3d at 892 (quoting Ex parte W eise , 55 S.W .3d 617, 620 (Tex. Crim. App. 2001)); see Perry , 483 S.W .3d at 895. Whether a claim is cog nizable on pretria l habea s is a threshold issue that should be addre ssed befor e the merits of the claim may be resolved.
Ex parte Ellis , 309 S.W .3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton , 493 S.W .3d 292, 297 (Tex. App.—Dallas 2016, pet. ref ’d); see, e.g. , Perry , 483 S.W .3d at 895 (addr essing cognizabili ty of “as applied” challeng e to constitutionalit y of statute); Ex parte Doster , 303 S.W .3d 720, 724–27 (Tex. Crim. App. 2010) (addr essing cog nizabili ty of claim under I nterstate Ag ree ment on Detaine rs Act). When deter

mining whether an issue is cognizable by pretria l habea s, courts consider a varie ty of fac tors, including whether the rig hts underly ing the claims would be eff ectively undermined if not vindi ca ted befor e trial and whether the alleg ed defe ct would bring into question the trial court’s
power to proce ed. Perry , 483 S.W .3d at 895–96; W eise , 55 S.W .3d at 619. Appellate courts should be car eful to e nsure that a pretria l writ is not misused to secur e pretria l a ppellate revie w of matters that should not be put bef ore the appellate court a

t the pretria l stag e. See Ellis , 309 S.W .3d at 79;
Doster , 303 S.W .3d at 724; Ex parte Smith , 178 S.W .3d 797, 801 (Tex. Crim. App. 2005). “Ne ither

a trial court nor an appellate court should enter tain an application for writ of habea s corpus when there is an ad equate reme dy by appea l.” W eise , 55 S.W .3d at 619; see Ex parte Carter , 514 S.W .3d 776, 785 (Tex. App.—Austin 2017, pet. ref ’d); Paxton , 493 S.W .3d at 297.

7Gene rally , a claim is cog nizable in a pretria l writ of habea s corpus if, resolved in the

applicant’ s favor , it would deprive the trial court of the power to proce ed and result in the applicant’ s immediate rele ase. Ex parte Smith , 185 S.W .3d 887, 892 (Tex

. Crim. App. 2006) (citing W eise , 55 S.W .3d at 619); see Smith , 178 S.W .3d at 801 (explaining that defe ndant m ay use pretrial writ of habea s corpus “only in very limit ed circ umstances” : (1) to challeng e State’s power to restra in him
at all; ( 2) to challeng e manne r of his pr etrial restra int, suc h as denial of bail or conditions attached
to bail; and (3) to raise cer tain issues that, if meritorious, would bar prosec ution or conviction); see

a l s o P erry , 483 S.W .3d at 895 (discussing ty pes of claims that are cog nizable in pretria l wr i t o f habea s corpus); W

eise , 55 S.W .3d at 619–20 (same ). Appellant ag ain argues that he is entitled to pretria l habea s corpus relief beca use the initial sear ch war

rant in this case , which led to the ultimate discovery of the digital imag es of child
p o rn o graphy on appellant’ s elec tronic device s, was rende red invalid beca use Penal Code section 21.16(c) , “the reve ng e porn statute,” is uncon s t i t u t i o n al. He ag ain contends that his claim challeng ing the constitutionalit y of the statute un d er l y i n g the sear ch war rant can be raised in a pretria l writ, citing Siller v. State , No. 11-15-000 1 6-CR, 2016 WL 4386107, at *2 (Tex. App.—Eastland Aug

. 11, 2016) (mem. o p . , not desig nated for publicaiton), judgment vacate d , No. PD-1052-16, 2017 WL 4401901 (Tex. Crim. App. Oct. 4, 2017), as support for his contention.

I n Siller , police obtained a s e arc h war rant for Sill er’ s residenc e based on an alleg ation that Sill er committed the offe nse of improper photogr aphy or visual rec ording in violation of Texas Penal Code § 21.15(b)( 1). See Siller , 2016 WL 4386107, at *1. I n sear ching Sill er’ s home, police found methamphetamine in addition to evidenc e of the alleg ed improper- photogr aphy offe nse.

8See id. Sill er was indicted for both improper pho t o gra p h y and possession of methamphetamine.

See id. Whil e the case s wer e pending , th e C o u rt of Criminal Appea ls held that the improper- photogr aphy statute, Penal Code section 21.15(b)( 1), is fac ially u n co n s t itutional to the
extent that it proscr ibed the taking of photogr aphs and the rec ording of visual imag es. See id. (citing
Ex parte Thompson , 442 S.W .3d 325, 350–51 (Tex. Crim. App. 2014)). Following the decla ration that the statute was unconstitutional, the State dismiss ed the improper- photogr aphy char g e. See id. Sill er then filed a motion to suppress in the methamphetamine case , arguing that the sear ch war rant was void bec ause the improper- photogr aphy statute upon which the sea rch w arr ant was ba sed had been decla

red unconstitutional. See id. The court of appea ls conclude d that the sear ch war rant was
not supported by probable cause beca use the Penal Code section upon which it was based was later decla red unconstitutio n al and that the absenc e of probable cause prec luded the application of the
g ood-fa ith ex ception conta ined in Article 38.23( b). Id. at *4.

We make two observations about the Siller opinion. First, the court of appea ls addre ssed Sill er’ s constitutional c laim when revie wing his challeng e to the denial of his motion to suppress in a post-conviction appea l, not in a pretrial habeas writ. There fore , appellant’ s relianc e

on Siller as support for his contenti o n t h at h i s claim is cog nizable in a pretria l writ is misplaced. Second, the Court of Criminal Appe als reve rsed the court of a ppeals on discr etionary

revie w. See Siller v. State , No. PD-1052-16, 2017 WL 4401901, at *1 (Tex. Crim. App. Oct. 4, 2017). The court

vacated the appe llate cour t’s judgme nt, based on the c ourt’s holding in McClintock v . State that

the g ood-fa ith exception of Article 38.23(b) wi l l ap ply when “the prior law enfor ceme nt conduct that uncover ed evidenc e used in the aff idavit fo r t h e war

rant [was] ‘close enoug h to the l i n e of validity ’ that an objectively rea sonable office r
9prepa ring the af

fidavit or executingthe war rant would believe that the i nformation supporting the war

rant wa s not tainted by

unconstitutional conduct[.] ”

541 S.W .3d 63, 73 (Tex. Crim. App. 2017) (quoting United States v. Massi , 761 F.3d 512, 528 (5 th Cir. 2014)). In light of McClintock, the Court of Criminal Appea ls rema nded the ca s e fo r consideration of the applica bility of the statutory

g ood-fa ith ex ception. See id. Siller does not support appellant’ s asser tion that his constitutional challeng e to Penal Code section 21.16(c) —the statute upon which the probable cause aff idavi t i n this case was based—ma

y be ra ised in a pre trial application for writ of ha beas c orpus. Habe as corpus is an extraordinary writ u s e d to c h a ll e n g e th e le g a lity of one’s restra int.
See Tex. Code Crim. Proc. arts. 11. 0 1 (p ro v i d i ng habea s corpus is “re medy to be used when any
person is restra ined in his liberty ”), 11.22 (def ining “re straint”). “The purpose of an application for writ of habeas corpus is to remove an il l ega l re s t ra i n t on an applicant’s l iberty .” Ex parte W alsh , 5 3 0 S

. W

. 3d 774, 778 (Tex. App.—For t Worth 2017, no pet.); see Ex par te K err , 64 S.W .3d 414,
419 (Tex. Crim. App. 2002) (“The purpose of a writ o f habea s corpus is to obtain a speedy and eff ective adjudication of a person’ s rig ht to liberation from illega l restra int.”). I n the pretria l context,

a person is “re strained” as require d for pretria l habea s relief by pending criminal char g es ag ainst him.
See W eise , 55 S.W .3d at 619 (obser ving that pretria l habea s applicant “wa s restra ined of his liberty

. . . when he was char g ed with [an offe nse] and rele ased on bond to awa it trial”); Ex parte Robinson , 641 S.W .2d 552, 553 (Tex. Crim. App. 1982) (“A perso n wh o is subject to the conditions of a bond is restra ined in his liberty within the meaning of Article 11.01.”); see also Geor g e E. Dix

10& J ohn M. Schmolesky , 43 Texas Practice: Criminal Practice and Procedure § 35:4 (3d ed. 2016)

(“In the pretria l context, the exis tence of pending char g es is g ener ally sufficie nt to show restra int.”).

For that rea son, pretr ial habea s may be used to asser t a claim that the statute under which the applicant is being prosec uted is unconstitut i o n al o n its fac e. See Ingram , 533 S.W .3d at 892; Ellis , 309 S.W .3d at 7 9 ; W ei s e , 5 5 S .W.3d at 620. I f the statute is unconstitutional on its fac e, the statute is not valid and, thus, the char g ing instrument is void. W eise , 55 S.W .3d at 620; see Ex parte Flores , 483 S.W .3d 632, 638 (Tex. App.—Ho u s t o n [14t h Dist.] 2015, pet. ref

’d) (“A claim that a statute is unconstitutional on its fac e may be raised by pretria l writ of habea s corpus beca

use the invalidity of the statute would rende r the char g ing instrument void.”).
A claim asser

ting that the statute defining the char g ed offe nse (and thus underly ing the prosec ution) is fac ially unconstitu t i o n al ch all eng es the trial court’s power to proce ed. See W eise , 55 S.W .3d
at 620.
We observe that appellant still does not alleg e that Penal Code section 43.26(a) , the possession of child pornog raphy statute, is fac ially unconstitutional. I nstead, he ag ain challeng es the fac ial constitutionalit y of Penal Code section 21.16(c) , “the reve ng e porn statute.” But appellant is being prosec uted under Penal Code section 43.26(a) , not Penal Code section 21.16(c)

. Thus, appellant’ s constitutional challenge d o es not challeng e the statute under which he is being
prosec uted, which is the statute imposing the restra int on his liberty

. Even if appellant preva iled on the m erits of his constitutional claim and “the r eveng e porn statute” was found to be defec tive for the rea sons appellant asser ts, the trial court would, never theless, have the power to proce ed with the
prosec ution ag ainst appellant. The alleg ed unconstitutionalit y of Penal Code section 21.16(c) does

11not rende r the char g ing instrument aga inst appellant—ba sed on violations of Penal Code section

43.26(a) —void. Thus, a ruling in appellant’ s favor would not result in his rele ase from the restra int imposed by

the pendingchar g es of possession of c hild pornog raphy

. I n his brief, app e ll a

n t d is p ute s our statement in our previous opinion that “[a]ppellant, in eff ect, sought an evidentiar

y ruli n g v ia pretrial habea s.” See Taylor , 2017 WL 4898989, at *4.
He maintains that he “see ks only revie w of whether the war rant in this case i s v al i d b ec ause it is based on a statute that has since been held to be unconstitutional.” Ho we v er , under these circ umstances, such a revie w seeks an evidentiar y ruling

. Appellant does not in any way challeng e

6
the constitutionalit y of the Penal Code statute subjecting him to rest ra i nt. Rather, he seeks a decla ration that “the reve ng e porn statut e” i s unconstitutional, which, appellant maintains, would

We ag ain observe that t h e cl aim appellant raised in his pretria l application for writ of 6 habea s corpus simply re- urg ed his moti on to suppress. We note that, as befor e, the section setting forth “App li c a

nt’s Claim” in his habea s corpus application incorporates, verbatim, the first argument raised in his motion to suppress, except that it substitut es the term “Applica nt” for “De fenda

nt” and conclude s that appellant “is entitled to pre- trial habea s corpus relief ” rathe r than concluding that “all evidenc e obtained in this ca se . . . should be suppre ssed.” A pretrial application for writ of habeas corpus may not be used to challeng e the denial of a pretria l motion to suppress. Ex parte Conner , 439 S.W

. 2 d 350 (Tex. Crim. App. 1969); see Ex parte King , 134 S.W .3d 500, 502 (Tex. App.—Austin 2004, pet. re f’ d ). Fu rther, a defe ndant “ca nnot use pretria l habea s corpus as a substitut e for a motion to suppress and there afte r pursue an interlocutory appea l of the c ourt’s pre trial ruling .” McKeand v . State , 430 S.W .3d 572, 573 (Tex. App.—Houston [14th Dis t.] 2014, no pet.). Appellant ac knowledg es in his brief that a motion to s uppress evidenc e and an a pplication for pretria l habea s corpus relie f ar e “t wo s eparate avenue s.” He asser ts that he “should not be penalized for se ekingto exhaust bot h reme dies.” We do not construe our holding that appellant’ s claim is not cog nizable in a pretria l habea s corpus writ as penalizing appellant. I t simply rec og nizes that pretria l habea s is not an available reme dy for the evidentiary rul ing that appellant seeks to review

. 12result in the invalidation of the probable cause aff idavit, which, acc ording to appellant, would, in turn, result in the suppression o f ev i d en ce obtained pursuant to the sear ch war rant based on that aff idavit. But see McClintock, 541 S.W .3d at 72 (conc luding that statutory “g ood faith” exception of article 38.23(b) applies where searc h war rant, though l ater found t o be b as ed o n illega lity , was obtained by law enfor ceme nt in g ood faith and on objectively rea sonable belief that it was valid and relied on appropr iately obtained evidenc e); Siller , 2017 WL 4401901, at *1 (re manding to court of
appea ls for consideration of whether g ood-fa ith exception of article 38.23(b) applied when probable

cause aff idavit underlying se arc h war rant wa s based on Pena l Code section subsequently decla red unconstitutional). Thus, appellant seeks a ruling reg arding the validity (or alleg ed invalidity) of the initi al sear ch war

rant—a ruling that forms the basis for the evidentiar y suppression that he seeks.
At the very least, he seeks an implicit evidentiar y ruling

. Once ag ain, we express no opinion about the suppression issue but observe that an evidentiar y ruling—even in appellant’ s favor —would not result in appellant’ s immediate rele ase from the restr ai n t on his liberty imposed by the pending criminal cha

rg es under

the child pornog raphy

statute. 7
The writ of habea s corpus is not available wher e judicial deter minati o n of the question prese nted, even if resolved in favor of the applicant, would not result in immediate rele ase.

Appellant aver s that our prior holding that the resolution of the evidentiar y issue in his 7 favor would not result i n his rele ase is “ar g uable” beca use “every piece of evidence sei z ed i n t his case is a result of the war

rant in question.” He maintains that “if Appellant preva iled on this issue, and the war

rant was held i nvalid, the practical result would be that there would be n o evidenc e to prese nt ag ainst Appellant.” Howeve r, rele ase pursuant to the g ranting of pretria l habea s relief is based on a leg al conclusion that the restra int is unlawful, not d u e t o t h e “pra ctical result” of an evidentiar y ruling

. The “pra ctical result” of suppre ssed evidenc e is not a leg al conc lusion that the pending restra int of criminal char g es is unlawful. Moreove r, this “pra ctical result” argument demonstrates that appellant is, in fac t, seekingan evide ntiary ruling via pre trial habe as. 13See I

ngram , 533 S.W .3d at 892 (“Except when double j eopar dy is involved, pretria l habea s is not available when t h e question prese nted, even if resolved in the defendant’s favor, would not result in imm ediate rele ase.” ); accord Perry , 483 S.W .3d at 895; Doster , 303 S.W .3d at 724; W eise , 55 S.W .3d at 619. Acc ording ly , beca use a ruling in appellant’ s favor on t h e m er its of hi s pretria l habea s claim would not result in his immediate rele ase from restra int, we once ag ain conclude that appellant’ s claim—cha lleng ing the constitutionali t y o f the Penal Code statute underly ing the probable cause aff

idavit supporting the sear ch war rant that led to the ultimate discovery of the digital imag es of child pornog raphy o n ap p ell ant’s elec tronic device s—is not cog nizable on a pretria l application for habea s corpus relief

. There fore , we hold that the tr ial court did not abuse its discretion by

denying a

ppellant’s subseque nt pretrial a pplication for wr it of habea s corpus.

CONCLUSION The function of a writ of habea s corpus is to secur e rele ase from unlawful confine ment or re straint. Her e, appe llant ag ain soug ht an evidentiar y ruling reg ardingthe leg ality (o r alleg ed illega lity) of the initial sear ch war rant that led to the ultimate discovery of the digi t al imag es of child pornog raphy on appellant’ s elec tronic device s. Although he raises a fac ial constitutional challeng e to a Penal Code statute, it is not the statu t e u nder which he is being
prosec uted and, thus, is not the statute subjecting him to restra int. There fore , the question prese nted in appellant’ s pretria l habea s claim, even if resolved in his favor , would not result in his immediate rele ase. For that rea son, we ag ain conclude that appellant’ s claim i s not cog nizable on a pretria l application for writ of habea s corpus. Consequently , we cannot conclude that the trial court abused

14its discretion in denying appellant’ s application for writ of habea s corpus. We aff irm the trial court’s order denying ha

beas r elief.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Nove mber 14, 2018 Do Not Publish

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