Sishir Pokhrel v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00123-CR
___________________________

SISHIR POKHREL, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1800039

Before Sudderth, C.J.; Kerr and Wallach, JJ.
Opinion by Justice Wallach
OPINION

I. Introduction

When D.B., the complainant, 1 decided to break up with Appellant Sishir Pokhrel,

he refused to accept her decision. Instead, he threatened to publish intimate photos of

her on a pornographic website and to send the photos to her parents if she did not

continue to date him. The State charged Pokhrel with one count of unlawful disclosure

or promotion of intimate visual material, a state-jail felony. See Tex. Penal Code Ann.

§ 21.16(c), (g). Although he pled not guilty, a jury found him guilty and assessed his

punishment at 20 months’ confinement in state jail and a $10,000 fine. See id. § 12.35(a)–

(b) (setting out state-jail felony punishment range).

In a single issue,2 Pokhrel raises a constitutional challenge to Subsection (c) of

Penal Code Section 21.16, the “revenge porn” statute. See Tex. Penal Code Ann.

1
We use initials to protect the complainant’s privacy. See Tex. R. App. P. 9.8 cmt.
(stating that Rule 9.8 “does not limit an appellate court’s authority to disguise parties’
identities in appropriate circumstances in other cases”); see also Tex. Const. art. I,
§ 30(a)(1) (stating that crime victims have the right “to be treated . . . with respect for
the victim’s dignity and privacy throughout the criminal justice process”).
2
In unrelated and un-numbered issues, characterized by Pokhrel on pages four
and five of his six-page brief as “Additional Points of Error” and without—in most
instances—any legal argument or citation to supporting authority, cf. Tex. R. App. P.
38.1, Pokhrel also complains that during the trial’s guilt–innocence phase, State’s
Exhibits 1–25 and extraneous-offense testimony were improperly admitted; that the
punishment charge failed to inform the jury that it could recommend probation; and
that the trial court ignored or ambiguously addressed his objections. To the extent the
record reflects that Pokhrel preserved any of these complaints, we overrule them as
inadequately briefed. See id.; see also Tex. R. App. P. 33.1 (setting out preservation
requirements); Tex. R. Evid. 901(b)(1) (explaining authentication through testimony of

2
§ 21.16(c); Ex parte Jones, No. PD-0552-18, 2021 WL 2126172, at *1 (Tex. Crim. App.

May 26, 2021) (not designated for publication) (describing the “classic ‘revenge porn’

scenario” as “two people take intimate sexual photographs, and one person decides to

post them on the Internet without the consent of the other”). We will affirm.

II. Discussion

Under Section 21.16(c), a person commits an offense if the person

intentionally threatens to disclose, without the consent of the depicted person,
visual material depicting another person with the person’s intimate parts
exposed or engaged in sexual conduct and the actor makes the threat to
obtain a benefit:

(1) in return for not making the disclosure; or

(2) in connection with the threatened disclosure.

Tex. Penal Code Ann. § 21.16(c) (emphasis added). Pokhrel’s indictment alleged that

on or about June 13, 2023, he “did without the consent of [D.B.], intentionally threaten

to disclose visual material depicting [D.B.] with [her] intimate parts exposed, namely

a witness with knowledge); Butler v. State, 459 S.W.3d 595, 605 (Tex. Crim. App. 2015)
(explaining that Rule 901 merely requires sufficient evidence to support authentication
and “does not ordinarily require the trial court to make a threshold determination of
the credibility of the evidence proffered by the proponent to establish authenticity”);
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (“Evidence may be
authenticated in a number of ways, including by direct testimony from a witness with
personal knowledge, by comparison with other authenticated evidence, or by
circumstantial evidence.”).

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her buttocks, or engaged in sexual conduct, and the threat was made to obtain a benefit

in connection with the threatened disclosure.” 3 See id.

During the trial’s guilt–innocence phase, after the State rested, the following

colloquy occurred between the trial court and the parties:

THE COURT: . . . Is there anything the Defense needs to put on
the record prior to the jury coming back in?

[Defense counsel]: Yes, Judge. Just want to make note for
preservation and appellate purposes about the statute that he’s being
charged under, consider it unconstitutional. It’s -- if I’m not mistaken, it
is missing some other culpable mind states as far as knowingly, recklessly,
and negligently, Your Honor. It only speaks to intentional, which may
consider that statute as a strict liability statute.

THE COURT: Okay. Thank you. The Court has -- well, State, do
you have any comment on that?

[Prosecutor]: No, Your Honor. I don’t. We would argue that -- I
mean, if this is for preservation of an appellate issue later, I understand. I
believe the statute is constitutional, but yeah. That’s all I have to say.

THE COURT: There is limited preceden[t] on this case, but there
is a case out of Houston that comments on that, so the Court is going to
follow that precedential value and overrule the Defendant’s objection; but
it is preserved for your review later on, for appellate review later on if you
so wish, and if that becomes necessary.

The charge contained most of the statutory definition of “intentionally.”4 It

defined “consent” as “assent in fact, whether express or apparent.”

Because Pokhrel does not challenge the sufficiency of the evidence to support
3

his conviction, we will not discuss the underlying facts except where necessary to
address his arguments. See Tex. R. App. P. 47.1.
4
The charge excluded the italicized portion: “A person acts intentionally, or with
intent, with respect to the nature of his conduct or to a result of his conduct when it is his

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A. The parties’ arguments

Pokhrel argues in his “Issue Presented” that Section 21.16(c), “[a]s applied to

[him], violates constitutional due process principles because it imposes criminal liability

without proof of intent, effectively rendering it a strict liability offense,” and he asks in

his prayer for the court to hold that Section 21.16(c) “is unconstitutional as applied.”

He further argues that Section 21.16(c) “is unconstitutional because it fails to require

proof of mens rea” in that it “does not clearly require that the accused knows or believes

that the depicted person did not consent” and that it “criminalizes threats to disclose

intimate material but fails to require a culpable mental state regarding consent or harm

. . . open[ing] the door to criminalizing innocent conduct and chilling free speech.”

The State responds that Section 21.16(c) is not an unconstitutional strict-liability

offense because the lack-of-consent element has an implied culpable mental state. See

Tex. Penal Code Ann. § 6.02(c) (“If the definition of an offense does not prescribe a

culpable mental state, but one is nevertheless required under Subsection (b), intent,

knowledge, or recklessness suffices to establish criminal responsibility.”).

B. Facial and as-applied constitutional challenges

In a facial constitutional challenge, the claimant asserts that the complained-of

law is unconstitutional “on its face,” meaning that it operates unconstitutionally in all

conscious objective or desire to engage in the conduct or cause the result.” Tex. Penal
Code Ann. § 6.03(a) (emphasis added). Pokhrel does not complain about this omission.

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of its potential applications. Estes v. State, 546 S.W.3d 691, 697–98 (Tex. Crim. App.

2018). Conversely, in an as-applied challenge, the claimant “concedes the general

constitutionality of the statute[] but asserts that the statute is unconstitutional as applied

to his particular facts and circumstances.” Id. at 698. Resolving an as-applied challenge

“requires a recourse to evidence.” Id. Further, a litigant raising an as-applied challenge

“must show that, in its operation, the challenged statute was unconstitutionally applied

to him; that it may be unconstitutional as to others is not sufficient (or even relevant).”

State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (orig. proceeding);

see Owens v. State, No. PD-0075-24, 2025 WL 1587690, at *1 (Tex. Crim. App. June 4,

2025) (explaining that the merits of an as-applied challenge depend on the evidence—

the challenger must show that the statute was unconstitutionally applied to him).

Further, an as-applied constitutional challenge is a forfeitable right and must be

preserved in the trial court during or after trial. Ibenyenwa v. State, 367 S.W.3d 420,

422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g).

Although Pokhrel characterizes his appellate issue in his brief’s “Issue

Presented” and prayer as an as-applied constitutional challenge, he did not raise an as-

applied complaint in the trial court, cf. Tex. R. App. P. 33.1, 5 or show in his brief that,

based on the evidence at trial, the statute was unconstitutionally applied to him, cf. Tex.

Neither party addresses preservation, cf. Tex. R. App. P. 33.1, but because it is a
5

systemic requirement, we must independently do so, Dixon v. State, 595 S.W.3d 216,
223 (Tex. Crim. App. 2020).

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R. App. P. 38.1. Accordingly, we overrule this portion of Pokhrel’s sole issue as both

unpreserved and inadequately briefed.

1. Implied mens rea

In the remainder of his first issue, Pokhrel contends that the statute fails to

require proof of mens rea. Pokhrel preserved this portion of his complaint at trial when

he asserted that the statute was unconstitutional because “it is missing some other

culpable mind states as far as knowingly, recklessly, and negligently,” and “only speaks

to intentional, which may consider that statute as a strict liability statute.”

A statute’s constitutionality is a question of law that we review de novo. Ex parte

Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). The Court of Criminal Appeals has

addressed the same implied mens rea issue in discussing the constitutionality of

Subsection (b) of Section 21.16. Jones, 2021 WL 2126172, at *1; see Ex parte Mora,

634 S.W.3d 255, 256 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d) (adopting Jones’s

reasoning, even though not precedential due to its unpublished status, because “as a

practical matter its reasoning calls for the same result in this materially indistinguishable

appeal”).

In Jones, responding to a constitutional challenge to the statute’s terms and to a

facial challenge alleging overbreadth, the court reviewed an earlier version of Subsection

(b), which provided that a person commits an offense if—as pertinent here—“without

the effective consent of the depicted person, the person intentionally discloses visual material

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depicting [her] with [her] intimate parts exposed or engaged in sexual conduct.”

2021 WL 2126172, at *3, *5 (emphasis added).

The court identified Subsection (b) as setting out a content-based restriction on

its face—thus making it subject to strict scrutiny—because it did not penalize all

intentional disclosure but rather “penalizes only a subset of disclosed images—those

which depict another person with the person’s intimate parts exposed or engaged in

sexual conduct.” Id. at *6 (“The sexually explicit nature of the images is inextricable

from the regulation; the harm results from the intimate nature of the content.”). The

court then determined that privacy set forth a compelling government interest because

“the interest in sexual privacy is substantial” as the “most private human conduct.” Id.

at *7 (“Violations of sexual privacy are intrinsically harmful because sex is inherently

private. The consequences of violations of sexual privacy can be serious and include

harassment, job loss, and suicide.”). Additionally, “disclosing visual material when the

depicted person reasonably expected it would remain private is an intolerable invasion

of privacy, especially when the visual material shows the depicted person’s intimate

parts or sexual conduct.” Id. The court stated, “[T]here is no way to adequately prevent

the harm from disclosure of intimate material without restricting the disclosure of

intimate material.” Id. at *15.

The court observed that Penal Code Section 6.03, which defines culpable mental

states, specifically limits the application of the “intentional” mens rea to a conduct’s

nature and result, while the “knowing” and “reckless” mens reas can apply to a

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circumstance surrounding conduct, such as a lack of effective consent. Id. at *9.6 That is,

“[s]ome form of culpability must apply” to the non-consent element because “[i]f the

culpable mental state only attaches to the act of disclosure, the lack of a culpable mental

state for the non-consent element effectively results in a constitutionally impermissible

strict-liability offense.” Id. Because the court can infer a requisite culpable mental state

to avoid a statute’s becoming an unconstitutional strict-liability crime, the court “can

presume the attachment of a culpable mental state to the character of the material to be

disseminated” because the statute “is susceptible to a narrowing construction as a

matter of statutory interpretation that allows it to survive a constitutional challenge.”

Id. at *10 (“[W]e can presume our Legislature intended the existence of the requisite

culpable mental state of knowledge or recklessness (but not intentional) to the lack-of-

consent element.”).

The Penal Code defines “knowing” as acting “with respect to the nature of his
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conduct or to circumstances surrounding his conduct when he is aware of the nature
of his conduct or that the circumstances exist” and “with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the result.”
Tex. Penal Code Ann. § 6.03(b). The Penal Code defines “reckless” as acting “with
respect to circumstances surrounding his conduct or the result of his conduct when he
is aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur,” and the risk “must be of such a nature and
degree that its disregard constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from the actor’s
standpoint.” Id. § 6.03(c). Proof of a higher degree of culpability than that charged
constitutes proof of the culpability charged. Id. § 6.02(e).

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The court then read into Section 21.16(b) a mens rea as to effective consent:

“Section 21.16(b) criminalizes the disclosure of intimate visual material when the

defendant (1) knowing or being aware of a substantial and unjustifiable risk that he lacked the

depicted person’s effective consent . . . .” Id. at *13 (emphasis added). The court reasoned as

follows,

[T]he lack-of-consent element narrows that statute’s reach to an actor who
intentionally discloses visual material despite knowing or being aware of a
substantial and unjustifiable risk that the depicted person did not
effectively consent to the disclosure. In those cases, the actor has, at the
very least, some objective fair warning that the sensitive and potentially
harmful speech he is about to utter is contrary to the wishes of the person
who might be harmed by it. Providing criminal penalties for speech made
in disregard of this fair warning is a narrowly tailored means to deter that
speech—and only that speech—thereby vindicating, to the greatest extent
constitutionally permissible, the depicted person’s expectation of privacy.

Id.

Based on the court’s 2021 interpretation of the lack-of-consent element in

Subsection (b), 7 then, we will imply the same mens rea to prevent Subsection (c) from

7
The issues in Jones were raised in a pretrial application for writ of habeas corpus
in which the trial court denied relief and the Tyler court reversed, concluding that
Subsection (b) was a content-based restriction that failed strict scrutiny and was
overbroad under the First Amendment. 2021 WL 2126172, at *1. The Court of Criminal
Appeals reversed the Tyler court’s judgment and remanded the case “for consideration
of [Jones’s] remaining point of error on appeal,” id. at *17, which was whether
Subsection (b) was unconstitutionally vague on its face, Ex parte Jones, No. 12-17-00346-
CR, 2022 WL 400827, at *1 (Tex. App.—Tyler Feb. 9, 2022, no pet.) (mem. op. on
reh’g, not designated for publication). The Tyler court affirmed the trial court’s denial
of his habeas application, id. at *2–3, and later affirmed his conviction, Jones v. State,
No. 12-22-00306-CR, 2023 WL 5663233, at *2–4 (Tex. App.—Tyler Aug. 31, 2023, no
pet.) (mem. op., not designated for publication).

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becoming an unconstitutional strict-liability crime: “A person commits an offense if

[he] intentionally threatens to disclose, [knowing or being aware of a substantial and

unjustifiable risk that he lack[s] the depicted person’s consent,] visual material depicting [that

person] with the person’s intimate parts exposed . . . .” See Tex. Penal Code Ann.

§ 21.16(c) (emphasis added); Jones, 2021 WL 2126172, at *13.

2. Supreme Court authority

Although Pokhrel argues that the failure to require proof of mens rea makes the

statute “constitutionally infirm under the holdings of Lambert v. California[, 355 U.S. 225,

78 S. Ct. 240 (1957),] and Elonis v. United States[, 575 U.S. 723, 135 S. Ct. 2001 (2015)],”

these cases are inapposite. Pokhrel cites Lambert for the proposition that due process

prohibits punishing individuals without fair notice and proof of culpability, but in

Lambert, the defendant challenged the constitutionality of a municipal ordinance that

was “wholly passive.” 355 U.S. at 228, 78 S. Ct. at 243. The ordinance required a

convicted person to register if staying in Los Angeles more than five days. Id. at 226,

78 S. Ct. at 242. During the seven years that the defendant lived there, she had been

convicted of a felony. Id., 78 S. Ct. at 242. After her arrest on suspicion of another

offense, she was charged with violating the registration ordinance, and a jury found her

guilty despite her constitutional objection. Id. at 226–27, 78 S. Ct. at 242.

In holding the ordinance unconstitutional, the Court observed the conduct at

issue was unlike the commission of acts or the failure to act under circumstances that

should “alert the doer to the consequences of his deed.” Id. at 228, 78 S. Ct. at 243. The

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Court stated that “[w]here a person did not know of the duty to register and where

there was no proof of the probability of such knowledge, he may not be convicted

consistently with due process.” Id. at 229–30, 78 S. Ct. 243–44. In contrast, in one of

Pokhrel’s texts to D.B., he stated, “[W]hat [I] am about to do is wrong, but remember

that you left me no choice.” Unlike the defendant in Lambert, then, the record reflects

that Pokhrel knew he was committing wrongdoing at the time of the offense.

Pokhrel cites Elonis as an example of a threat statute struck down for lack of

subjective intent. In Elonis, the Court reversed the defendant’s conviction under

18 U.S.C. § 875(c), a statute making it a crime to transmit in interstate commerce “any

communication containing any threat . . . to injure the person of another,” when the

jury was not charged with a mental state but rather was charged that the government

need prove only that a reasonable person would regard the communications as threats.

575 U.S. at 726, 740, 135 S. Ct. at 2004, 2012. During trial, the defendant asked for but

did not receive a jury instruction that the government had to prove that he intended to

communicate a true threat. Id. at 732, 135 S. Ct. at 2007.

The Court observed that criminal statutes are generally interpreted to include

broadly applicable scienter requirements, even where the statute by its terms does not

contain them, but the defendant generally must know the facts that make his conduct

fit the offense’s definition. Id. at 734–36, 135 S. Ct. at 2009–10 (stating that when

interpreting federal criminal statutes that are silent on the required mental state, the

court reads into the statute “only that mens rea which is necessary to separate wrongful

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conduct from ‘otherwise innocent conduct’”). Under 18 U.S.C. § 875(c), the defendant

had to know not only that he was transmitting a communication but also that it was

threatening. Id. at 737, 135 S. Ct. at 2011 (stating that the crucial element separating

legal innocence from wrongful conduct is the communication’s threatening nature and

that therefore the mental state requirement must “apply to the fact that the

communication contains a threat”).

Because the defendant had been charged under a negligence standard, the Court

reversed his conviction. Id. at 737–38, 742, 135 S. Ct. at 2011, 2013. The Court further

held that the mental-state requirement would be satisfied if the defendant had

transmitted the communication “for the purpose of issuing a threat, or with knowledge

that the communication will be viewed as a threat.” Id. at 740, 135 S. Ct. at 2012. Unlike

the Elonis defendant, Pokhrel’s texts to D.B. showed that he knew his conduct was not

innocent, including his message in which he stated to her, “[I]f you don’t reach out to

me tomorrow, I am going to mess up your whole life. [Y]ou will regret that you ever

met me.” He also texted her parents’ names to her and then a text stating, “I will send

the pornhub link tomorrow.” We overrule this portion of Pokhrel’s sole issue.

3. Overbreadth

To the extent Pokhrel has raised an overbreadth challenge, 8 the Court of

Criminal Appeals also addressed that issue in Jones. 2021 WL 2126172 at *15. The

“An overbreadth challenge is a First-Amendment-based facial challenge
8

contending that a statute substantially prohibits or chills protected activity in relation to

13
purpose of the overbreadth doctrine is to prevent the chilling of future speech, but the

court will only strike a law as overbroad if no limiting construction can be placed on

the statute. Id. The person challenging the statute must demonstrate from its text and

from actual fact that a substantial number of instances exist in which the law cannot be

applied constitutionally. Id. at *16. The appellant failed to do so in Jones, see id. at *17,

and Pokhrel has likewise failed to do so. See Tex. R. App. P. 33.1, 38.1. Accordingly, we

overrule the remainder of his sole issue.9

III. Conclusion

Having overruled Pokhrel’s sole issue, we affirm the trial court’s judgment.

its ‘plainly legitimate sweep.’” Ex parte Couch, 651 S.W.3d 523, 526 n.1 (Tex. App.—
Fort Worth 2022), aff’d, 678 S.W.3d 1 (Tex. Crim. App. 2023).
9
Like our sister courts, we rely on Jones because, as a practical matter, its reasoning
applies to the challenge before us. See Mora, 634 S.W.3d at 256 (adopting Jones reasoning
as its own); see also Ex parte Limberger, No. 01-21-00532-CR, 2023 WL 2655749, at
*2 (Tex. App.—Houston [1st Dist.] Mar. 28, 2023, no pet.) (mem. op., not designated
for publication) (noting that in Mora and another case, the court had adopted the Jones
reasoning); Jones, 2023 WL 5663233, at *2 (same); Ex parte Mills, No. 05-22-00814-CR,
2023 WL 3220939, at *2 n.1 (Tex. App.—Dallas May 3, 2023, no pet.) (mem. op., not
designated for publication) (counting cases). Compare Ex parte Fairchild-Porche,
638 S.W.3d 770, 791 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (using the Jones
reasoning but stating, with reference to Rule of Appellate Procedure 77.3, “We do not
use the high court’s opinion in Ex parte Jones as authority”), with id. at 793–94 (Spain, J.,
concurring) (observing that the court essentially followed the Jones opinion and
complaining that the court had no choice “when the high court writes 43 pages that
effectively rewrite Penal Code section 21.16(b) to avoid constitutional infirmities
created by another department of government, then takes no long-term responsibility
for the rationale that supports the high court’s judgment”).

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/s/ Mike Wallach
Mike Wallach
Justice

Publish

Delivered: November 6, 2025

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