Affirmed and Opinion filed March 30, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00549-CR

NO. 14-20-00550-CR

NO. 14-20-00551-CR

EX PARTE LEONARD WALTON FUSSELMAN

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 17-DCR-080374, 17-DCR-080375, & 17-DCR-080376

OPINION

Appellant Leonard Walton Fusselman appeals from the orders denying him 

the relief he requested in his pretrial applications for writ of habeas corpus. In five 

issues appellant contends that the Penal Code statute prohibiting the possession of 

child pornography is facially overbroad and violates the Free Speech Clause 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

Appellant was indicted for three counts of possession of child pornography in 

violation of section 43.26 of the Texas Penal Code. In each case appellant filed a 

Second Amended Application for Writ of Habeas Corpus1in which he asserted that 

section 43.26 was unconstitutional. The trial court held a hearing at which no 

evidence was taken. Following the hearing the trial court denied appellant’s 

requested relief of dismissal of the indictments. 

In appellant’s applications for writ of habeas corpus he asserted section 43.26 

was unconstitutionally broad in three respects:

• The statute forbids possession of images of people engaged in 

sexual conduct who are not children for purposes of engaging in 

sexual conduct;

• The statute’s inclusion of “lewd exhibition of . . . the anus, or any 

portion of the female breast below the top of the areola” 

unconstitutionally expands the definition of forbidden content; 

and

• the statute punishes simulated sexual conduct as child 

pornography.

In appellant’s first four issues on appeal he challenges the trial court’s rulings 

on his applications for writ of habeas corpus asserting the statute is facially 

unconstitutional (1) under the United States Constitution because it forbids as child 

pornography images of people who are not children for purposes of engaging in 

sexual conduct; (2) under the Texas Constitution because it forbids as child 

pornography images of people who are not children in Texas for purposes of 

engaging in sexual conduct; (3) under the United States Constitution because it 

punishes as child pornography images of body parts that the Supreme Court has not 

1 Appellant’s Second Amended Petition was the live pleading at the time of the trial court’s 

order.
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categorized as child pornography; and (4) 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 asserts that if any one of the abovereferenced “forms of overbreadth” did not individually render the statute 

unconstitutionally overbroad, “some combination of them would.”

ANALYSIS

I. Standard of review and applicable law

In general, we 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. Phuong Anh Thi Le v. State, 300 S.W.3d 324, 327 (Tex. App.—Houston 

[14th Dist.] 2009, no pet.).

Pretrial habeas corpus proceedings are separate criminal actions, and the 

applicant has the right to an immediate appeal before trial begins. Greenwell v. Court 

of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. 

App. 2005). A defendant may only seek pretrial habeas relief in limited 

circumstances. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). Those 

limited circumstances are (1) to challenge the State’s power to restrain the defendant; 

(2) to challenge the manner of pretrial restraint, i.e., the denial of bail or conditions 

of bail; and (3) to raise certain issues that would bar prosecution or conviction. Id.

In most cases, a facial challenge to the constitutionality of a statute can 

succeed only when the statute is shown to be unconstitutional in all of its 

applications. See State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013). 

Under the First Amendment’s overbreadth doctrine, a statute may be declared 

unconstitutional on its face, even if the statute has a legitimate application, and even 
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if the defendant was not engaged in activity protected by the First Amendment. State 

v. Johnson, 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015).

In the case of statutes that encroach upon activity protected by the First 

Amendment, the challenger may bring a “substantial overbreadth” challenge. Under 

such a facial challenge, a statute may be invalidated as overbroad if “a substantial 

number of its applications are unconstitutional, judged in relation to the statute’s 

plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010); see 

also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (holding overbreadth 

doctrine prohibits government from banning unprotected speech if substantial 

amount of protected speech prohibited or chilled in process). This type of facial 

challenge may be made when a statute restricts or punishes speech based upon its 

content. See Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2014).

A law is “content-based” if it distinguishes between favored and disfavored 

speech on the basis of the views expressed or if it is necessary to review the content 

of the speech to determine whether the speaker violated the law. Ex parte Thompson, 

442 S.W.3d 325, 345 (Tex. Crim. App. 2014). A content-based regulation that 

distinguishes favored from disfavored speech based on the views expressed is 

presumptively invalid, and the government bears the burden to rebut the 

presumption. Lo, 424 S.W.3d at 15. We apply the “most exacting scrutiny to 

regulations that suppress, disadvantage, or impose differential burdens upon speech 

because of its content.” Id. (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 

622, 642, (1994)). To satisfy a strict scrutiny review, a statute that regulates speech 

must be necessary to serve a compelling state interest and be narrowly drawn. Id. To 

be considered narrowly drawn, a law must employ the least restrictive means to 

achieve its goal and there must be a close nexus between the state’s compelling 

interest and the restriction. Id. A statute may not be held overbroad merely because 
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it is possible to conceive of some impermissible applications. United States v. 

Williams, 553 U.S. 285, 303 (2008).

II. The challenged statute

As noted by our sister court, the first step in considering an overbreadth 

challenge “is to construe the challenged statute; it is impossible to determine whether 

a statute reaches too far without first knowing what the statute covers.” Ex parte 

Dehnert, 605 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d)

(holding section 43.26(a) constitutional under identical challenges to those asserted 

by appellant).

Section 43.26(a) of the Texas Penal Code provides that a person commits an 

offense if:

(1) the person knowingly or intentionally possesses, or knowingly or 

intentionally accesses with intent to view, 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) and

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

Subdivision (1).

Tex. Penal Code § 43.26(a).

“Sexual conduct” is defined as:

[S]exual contact, actual or simulated sexual intercourse, deviate sexual 

intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or 

lewd exhibition of the genitals, the anus, or any portion of the female 

breast below the top of the areola.

Tex. Penal Code §§ 43.26(b)(2), 43.25(a)(2).

“Simulated” is defined as:
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[T]he explicit depiction of sexual conduct that creates the appearance 

of actual sexual conduct and during which a person engaging in the 

conduct exhibits any uncovered portion of the breasts, genitals, or 

buttocks.

Tex. Penal Code § 43.25(a)(6).

III. Punishing the possession of child pornography involving 17-year-old 

minors is not unconstitutional under the United States Constitution.

In appellant’s first issue he contends that section 43.26 is unconstitutional 

under the First Amendment to the United States Constitution because it forbids as 

“child pornography” images of people who are not children for purposes of engaging 

in sexual conduct. Specifically, appellant asserts that because a seventeen-year-old 

can effectively consent to sex, Texas cannot invoke as its compelling interest for 

forbidding pornography of 17-year-olds protecting children under 18 from sexual 

seduction or exploitation. 

Appellant’s issue raises the question of the purpose of child pornography laws

vis-à-vis the First Amendment. Child pornography is not protected speech under the 

First Amendment. Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458 

U.S. 747 (1982). In 1977, Congress passed the first federal law aimed at child 

pornography. See Protection of Children Against Child Exploitation Act of 1977, 

Pub. L. No. 95-225, 92 Stat. 7 (1978). New York enacted one of the early child 

pornography laws, the subject of which was addressed by the Supreme Court in 

Ferber. 458 U.S. at 750. The Court rejected a First Amendment defense to New 

York’s law giving five reasons why “the States are entitled to greater leeway in the 

regulation of pornographic depictions of children.” Id. at 756. First, the government 

has a compelling interest in “safeguarding the physical and psychological well-being 

of a minor.” Id. at 756–57 (quoting Globe Newspaper Co. v. Superior Court, 457 

U.S. 596, 607 (1982)). Second, distribution of child pornography compounds the 
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sexual abuse of children by circulating a “permanent record” of the abuse. Id. at 759. 

Third, outlawing the sale of child pornography reduces the economic incentive to 

create it. Id. at 761–62. Fourth, any value of child pornography is “exceedingly 

modest, if not de minimis.” Id. at 762. Fifth, categorically excluding child 

pornography from the First Amendment is consistent with the longstanding 

recognition that bans on certain types of speech escape First Amendment scrutiny 

when “the evil to be restricted so overwhelmingly outweighs the expressive interests, 

if any, at stake.” Id. at 763–64. 

Not long after Ferber, the Supreme Court concluded that states may also ban 

possession of child pornography. See Osborne, 495 U.S. at 111. Osborne, largely 

echoing Ferber, cited the following reasons for its holding: punishing possession 

reduces demand for the pornography; a ban on possession may limit the reputational 

damage to the child by encouraging destruction of the images; and “evidence 

suggests that pedophiles use child pornography to seduce other children into sexual 

activity.” Id. at 109–11.

Our sister court of appeals, in a case in which the Texas Court of Criminal 

Appeals refused discretionary review, considered and rejected an identical 

argument. Dehnert, 605 S.W.3d at 890–92. The First Court held that the fact that a 

17-year-old child can consent to sex does not compel the conclusion that the same 

child can consent to participate in pornography. Id. at 891. In arriving at this 

conclusion, the First Court considered Texas cases that had addressed challenges to 

section 43.25 of the Penal Code (the sexual-performance-by-a-child statute) as 

overbroad. See Ex parte Fujisaka, 472 S.W.3d 792, 800 (Tex. App.—Dallas 2015, 

pet. ref’d) and Dornbusch v. State, 156 S.W.3d 850, 867 (Tex. App.—Corpus Christi 

2005, pet. ref’d).

The courts in Fujisaka and Dornbusch addressed challenges that the sexual-
8

performance-by-a-child statute was unconstitutional because the statute applied to 

children under 18 years old, but the sexual-assault statute applied to children under 

17. Compare Tex. Penal Code § 43.25 (sexual performance by a child) with Tex. 

Penal Code § 22.011 (sexual assault). Addressing this issue, the Fujisaka court 

noted:

Although there is some overlap between the offenses set forth in Title 

Five of the penal code, addressing offenses against persons, and the 

offenses set forth in Title Nine of the penal code, addressing offenses 

against public order and decency, we see no necessary inconsistency 

between the provisions of these titles and no reason why the age of 

consent to sexual relations in the Title Five offenses need be the same 

as the threshold age for prosecutions of conduct violative of public 

order and decency in Title Nine. Compare §§ 21.11(a), 22.011(a)(2), 

(c)(1), and 22.021(a)(1)(B), (b)(1) (criminalizing sexual conduct with 

persons younger than seventeen years of age), with §§ 43.02(c)(3), 

43.03(b)(2), 43.04(b), 43.251(a)(1), and 43.26(a)(1) (criminalizing or 

enhancing punishment for offenses involving persons younger than 

eighteen years of age). Appellant has not provided any authority 

mandating an age limit on regulations aimed at protecting children and 

society from adults exploiting children for sexual purposes. We do not 

find the argument persuasive that the age restriction cannot be set by 

the legislature at seventeen years for some purposes and eighteen years 

for others. See, e.g., 18 U.S.C.A. § 2256(1) (West 2015) (defining 

“minor” as “any person under the age of eighteen years” for purposes 

of federal law prohibiting the sexual exploitation and other abuse of 

children). Appellant’s suggestion that we interpret the statute to 

encompass only sexual conduct or sexual performances that are 

otherwise proscribed by Title Five offenses does not fully grasp the 

significance of the government’s compelling interest in protecting 

children from sexual exploitation. See New York v. Ferber, 458 U.S. 

747, 757, 102 S. Ct. 3348, 73 L.Ed.2d 1113 (1982) (recognizing “[t]he 

prevention of sexual exploitation and abuse of children constitutes a 

government objective of surpassing importance”).

Fujisaka, 472 S.W.3d at 800–01.

The Dornbusch court, also considering a challenge to section 43.25, noted:
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Furthermore, section 21.11 [the indecency-with-a-child statute] is in the 

part of the penal code that criminalizes offenses against persons, 

whereas section 43.25 is in the part of the code that criminalizes 

offenses against the public decency and order. See §§ 21.11, 43.25(b). 

A helpful analogy can be drawn between inducement of sexual conduct 

by a child and prostitution. Both are offenses against the public decency 

and order. Prostitution is not a crime against the prostitute; it is an 

offense against the “public decency and order” because it violates the 

moral values of society. See Tex. Pen. Code Ann. § 43.02 (Vernon 

2003). Consequently, a prostitute’s consent to sex in exchange for 

money does not make the conduct legal. It still amounts to prostitution. 

Similarly, although an adult’s consensual sexual contact with a 

seventeen-year-old cannot be prosecuted as indecency with a child, the 

teenager’s consent to sex does not de-criminalize the adult’s conduct 

under section 43.25(b) because the adult’s conduct is a crime against 

the public, not against the teenager. See §§ 21.11, 43.25(b).

Dornbusch, 156 S.W.3d at 871.

Fujisaka and Dornbusch decided whether section 43.25 of the Penal Code was 

overbroad. Appellant here challenges section 43.26 of the Penal Code, but we find 

the reasoning of Fujisaka and Dornbusch persuasive as did our sister court. Dehnert, 

605 S.W.3d at 891.

That the State does not permit sex with a child under the age of 17 for purposes 

of the sexual-assault statute or the indecency-with-a-child statute does not compel 

the conclusion that the age must be the same for the child-pornography statute. Id.

Similarly, that a 17-year-old child can consent to sex does not compel the conclusion 

that the same child can consent to participate in pornography. Id. The sexual-assault 

statute is in the portion of the Penal Code prohibiting offenses against persons, while 

the child-pornography statute is in the section of the Penal Code prohibiting offenses 

against public order and decency. Given the different purposes of the statutes, the 

Legislature could have believed that public order and decency would be best served 

by prohibiting pornography involving all minors, even those who might be able to 
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consent to sex. Dehnert, 605 S.W.3d at 891. See also United States v. Bach, 400 F.3d 

622, 629 (8th Cir.), cert. denied, 546 U.S. 901 (2005) (“the congressional choice to 

regulate child pornography by defining minor as an individual under eighteen is 

rationally related to the government’s legitimate interest in enforcing child 

pornography laws[.]”).

Based on this authority, the First Court rejected Dehnert’s argument that 

section 43.26 was overbroad because it does not require the depiction of a crime, i.e. 

that the child be below the age of consent. Id. at 892. In light of Dehnert and the 

cases cited therein, we similarly reject appellant’s argument that section 43.26 is 

overbroad because it prohibits possession of pornography that depicts 17-year-olds. 

We therefore overrule appellant’s first issue.

IV. The Texas Constitution does not provide greater protection of speech 

than the First Amendment in this case.

In appellant’s second issue he asserts section 43.26 is facially unconstitutional 

under article I, section 8 of the Texas Constitution2for the same reason raised in his 

first issue. Relying on Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex. 1992), appellant 

contends that the Texas Constitution provides broader protection, not in the sense 

that article I, section 8 can be read more broadly than the First Amendment, but “in 

the narrower context of Texas, rather than the republic.” In this regard, appellant 

relies again on the age of consent in Texas, a proposition we rejected in disposing of 

appellant’s first issue.

As noted by our sister court in Dehnert and this court, The Supreme Court of 

Texas has not interpreted article I, section 8 of the Texas Constitution more broadly 

2

“Every person shall be at liberty to speak, write or publish his opinions on any subject, 

being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the 

liberty of speech or of the press.”
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than the First Amendment in any case that does not involve an issue of a prior 

restraint on free speech. Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 

2003); Sanchez v. Striever, 614 S.W.3d 233, 244 (Tex. App.—Houston [14th Dist.] 

2020, no pet.); Dehnert, 605 S.W.3d at 895–96. This case does not involve an issue 

of a prior restraint on free speech, and appellant has shown no reason, based on “the 

text, history, or purpose of Article I, Section 8,” for us to expand the protections 

afforded beyond those provided by the First Amendment. Barber, 111 S.W.3d at 

106 (quoting Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., 

Inc., 975 S.W.2d 546, 559 (Tex. 1998)). We therefore overrule appellant’s second 

issue asserting state constitutional grounds.

V. Punishing the possession of child pornography involving “exhibition of 

. . . the anus, or any portion of the female breast below the top of the 

areola” is not unconstitutional under the United States Constitution.

In appellant’s third issue he contends that section 43.26 is overbroad because 

its definition of “sexual conduct” forbids the “lewd exhibition of . . . the anus, or any 

portion of the female breast below the top of the areola.” See Tex. Penal Code 

§ 43.25(a)(2). Appellant, relying on Miller v. California and New York v. Ferber, 

contends that, while there can be lewd exhibition of the genitals, there can be no 

lewd exhibition of the anus or female breast below the top of the areola. See Miller, 

413 U.S. 15, 25 (1973) (interpreting statute prohibiting lewd exhibition of genitals); 

Ferber, 458 U.S. at 751 (same). Because the statutes interpreted in Miller and Ferber

both prohibited lewd exhibition of the genitals, and did not include other body parts, 

appellant argues that the Texas statute is unconstitutionally overbroad because “the 

Supreme Court has never included in its definition of ‘child pornography’ anything 

resembling” the Texas statute’s prohibition of the lewd exhibition of body parts other 

than genitalia.

We agree with our sister court. See Dehnert, 605 S.W.3d at 892–93. The 
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Dehnert court noted that the Supreme Court’s prohibition against child pornography 

cannot be read as narrowly as appellant suggests. Id. at 892. Relying on the Supreme 

Court’s decision in Osborne, 495 U.S. at 106 and dicta in the Texas Court of 

Criminal Appeals’ opinion in Savery v. State, 819 S.W.2d 837, 838 n.1 (Tex. Crim. 

App. 1991), the Dehnert court held that section 43.26 was not unconstitutionally 

overbroad because it prohibits the lewd exhibition of body parts other than genitalia. 

Id. at 893. 

Under the Supreme Court’s reasoning in Osborne, “the crucial question is on 

whether the depiction is lewd, not whether the depiction happens to focus on the 

genitals or the buttocks.” 495 U.S. at 114, n.11. As noted in Osborne, depictions of 

nudity, without more, constitute protected expression. Id. at 112. The Ohio statute

reviewed in Osborne, and the Texas statute, survive overbreadth scrutiny because 

both statutes avoid penalizing individuals for viewing or possessing innocuous 

photographs of naked children. The Texas statute also focuses on the lewd exhibition 

of, among other things, the anus or the female breast below the top of the areola. See

Tex. Penal Code § 43.25(a)(2). Thus, section 43.26(a) is not unconstitutionally 

overbroad because it includes more body parts than genitalia. See Dehnert, 605 

S.W.3d at 892–93. We overrule appellant’s third issue.

VI. Punishing the possession of child pornography involving “simulated”

sexual conduct is not unconstitutional under the United States 

Constitution.

Appellant next argues that section 43.26 is overbroad because it forbids the 

possession of images involving children involved in “simulated” sexual contact.

Specifically, appellant argues that, “images involving simulated sexual conduct, 

which have no proximate link to any valid crime, do not fall into the narrow category 

of child pornography, and so are protected speech.” (emphasis in original) 
13

As noted above, real child pornography is not protected speech under the First 

Amendment. Osborne, 495 U.S. at 110; Ferber, 458 U.S. at 747. But virtual child 

pornography—sexually explicit images “created by using adults who look like 

minors or by using computer imaging”—is protected speech. United States v. 

Mecham, 950 F.3d 257, 260 (5th Cir. 2020), cert. denied, 141 S. Ct. 139, 207 L. Ed. 

2d 1082 (2020) (quoting Free Speech Coalition, 535 U.S. at 239). 

In Porath v. State, 148 S.W.3d 402, 414–15 (Tex. App.—Houston [14th Dist.] 

2004, pet. denied), this court considered and rejected the argument that appellant 

asserts today. In Porath, the defendant argued that section 43.26 was overbroad and 

violated the First Amendment because “it draws no distinction between possession 

of actual child pornography and child pornography created by digital or computer 

imaging,” i.e., simulated sexual conduct. In rejecting this argument, we stated:

[A]ppellant relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 

122 S. Ct. 1389, 152 L.Ed.2d 403 (2002). In Free Speech Coalition, the 

United States Supreme Court considered a challenge to the Child 

Pornography Prevention Act of 1996 (“CPPA”). Id. at 239, 122 S. Ct. 

1389. The CPPA extended the federal prohibition of child pornography 

to sexually explicit images that “appear to” depict minors engaging in 

sexual conduct, but are produced without using any real children. Id. 

Because the statute prohibited both protected and unprotected speech, 

the Court held that the statute was unconstitutional to the extent it 

regulated virtual images or images that merely appeared to depict 

children engaged in sexual conduct. Id. at 256, 122 S.Ct. 1389. In so 

holding, however, the Court also observed, “[t]he freedom of speech 

has its limits; it does not embrace certain categories of speech, 

including defamation, incitement, obscenity, and pornography 

produced with real children.” Id. at 246, 122 S. Ct. 1389.

In Texas, it is an offense to knowingly or intentionally possess “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” if the person “knows that the material depicts the child” 

engaging in sexual conduct. Tex. Pen. Code Ann. § 43.26(a) (Vernon 

2003). Unlike the federal statute, the plain language of the Texas statute 
14

indicates that it prohibits only possession of material that depicts an 

actual child, not material that merely “appears” to depict a child. Id.

Because section 43.26(a) only prohibits pornography depicting actual 

children, the statute is not vague or overbroad. Webb v. State, 109 

S.W.3d 580, 583 (Tex. App.—Fort Worth 2003, no pet.). Further, 

because pornography produced with actual children is not a category of 

speech protected by the First Amendment, the statute’s prohibition of 

these materials does not violate the First Amendment. Id.; see also Free 

Speech Coalition, 535 U.S. at 246, 122 S. Ct. 1389.

Porath, 148 S.W.3d at 414–15.

Appellant has not cited authority, nor have we found any, that overrules or 

undermines our holding in Porath. Under the binding authority of Porath, we reject 

appellant’s contention that section 43.26 unconstitutionally criminalizes simulated 

sexual conduct. We overrule appellant’s fourth issue.

VII. Appellant waived his claim that a combination of “forms of overbreadth” 

render the statute unconstitutional.

In appellant’s fifth issue he contends that, “If any of the three reasons that the 

statute applies to constitutionally protected speech were not sufficient to render the 

statute substantially overbroad, then the combination of ways that the statute applies 

to constitutionally overbroad speech would be.” (emphasis in original) Appellant 

waived this issue by failing to raise it in the trial court. See Tex. R. App. P. 33.1; See 

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 issue because it was not preserved for review.
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CONCLUSION

Having considered and rejected all reasons advanced by appellant for holding 

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

issues and affirm the trial court’s judgments denying appellant’s applicationsfor writ 

of habeas corpus.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

Publish — Tex. R. App. P. 47.2(b).