541 S.W.3d 846
Tex. Crim. App.2017Background
- In 2010 Beck, a middle-school teacher, pled guilty to engaging in an improper relationship with a student (former Tex. Penal Code § 21.12(a)(2)) as part of a plea bargain; he did not object to the statute’s constitutionality and waived appeal.
- The improper-relationship statute criminalized school employees engaging in conduct described by the online-solicitation statute (former § 33.021), applied to students at the school where the employee worked, and reached students regardless of age.
- In 2013 this Court held former § 33.021(b) facially overbroad and unconstitutional in Ex parte Lo.
- In 2014 Beck filed a post-conviction habeas application (Art. 11.072) arguing § 21.12(a)(2) was facially unconstitutional because it incorporates the now-void § 33.021(b).
- The trial court denied relief; the court of appeals affirmed, holding Beck forfeited a facial challenge he never preserved and that Lo did not automatically invalidate § 21.12(a)(2) because the statutes differ in scope and context.
- The Court of Criminal Appeals granted review and affirmed, holding first-time facial challenges generally must be preserved and the Smith exception (allowing relief where the statute of conviction has already been declared facially unconstitutional) did not apply because no binding authority had declared § 21.12 facially invalid.
Issues
| Issue | Plaintiff's Argument (Beck) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a defendant may bring a facial challenge to a statute for the first time in post-conviction habeas | Beck: A facially unconstitutional statute is void ab initio and may be attacked at any time; Lo rendered the incorporated provision void so §21.12 is void too | State: First-time facial challenges are forfeitable; habeas is not a substitute for appeal and claims that could be raised earlier are generally barred | Held: Generally barred — first-time facial challenges must be preserved; habeas is not the vehicle absent an applicable exception |
| Whether the Smith/Lo exception permits first-time habeas relief when the statute of conviction incorporates language from a statute previously declared facially unconstitutional | Beck: Because §21.12 references §33.021(b), and §33.021(b) was struck in Lo, §21.12 is necessarily void and Smith permits relief at any time | State: §21.12 differs materially from §33.021(b) (narrower educational context and additional elements); Lo did not decide §21.12; no binding decision has invalidated §21.12 | Held: Smith exception inapplicable—Lo did not automatically invalidate §21.12; no binding judicial declaration has rendered §21.12 facially unconstitutional |
| Whether a single court of appeals decision invalidating §21.12 would trigger Smith exception | Beck: Alternatively, a court of appeals decision finding §21.12 invalid should suffice | State: Smith and precedent contemplate an authoritative (this Court or U.S. Sup. Ct.) declaration; a single court of appeals is not binding authority | Held: Declined to extend Smith to non-binding court of appeals decisions; only a binding adjudication triggers the exception |
Key Cases Cited
- Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (facial statutory challenges are forfeitable and must generally be preserved)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (former § 33.021(b) held facially overbroad and unconstitutional)
- Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015) (if the statute of conviction has already been declared facially invalid by binding authority, the conviction may be attacked even if the issue was not preserved)
- Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (framework dividing preservation rights into categories: absolute, waivable-only, forfeitable)