542 S.W.3d 583
Tex. Crim. App.2018Background
- Applicant was convicted under Tex. Penal Code § 33.021(b) for texting an explicit photo of his penis to a minor.
- The Court granted post-conviction habeas relief, applying Ex parte Lo, which invalidized § 33.021(b) as unconstitutionally overbroad.
- The Applicant did not argue the statute’s constitutionality at trial or on direct appeal, but received relief based on Lo’s retroactive application.
- Justice Yeary dissents, arguing the Applicant’s conduct was not protected speech and that Lo was wrongly decided or should be reconsidered.
- Yeary notes many post-conviction grants (over forty) relying on Lo without applicants showing their conduct was protected speech or that the statute was unconstitutional as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 33.021(b) is unconstitutionally overbroad | Lo: statute prohibits substantial protected speech and is not narrowly tailored | State: statute regulates nonprotected sexual conduct involving minors | Court applied Lo and granted habeas relief (statute treated as void) |
| Whether Lo applies retroactively to convictions where statute’s constitutionality wasn’t raised | Applicant/Lo: unconstitutional statutes are void from inception and apply retroactively | State: retroactivity improper absent challenge at trial/direct appeal | Court applied Lo retroactively (granted relief) |
| Whether applicant’s conduct constituted protected speech | Applicant relies on Lo’s overbreadth holding | State contends conduct is conduct, not protected speech | Dissent finds conduct unprotected; majority nonetheless grants relief under Lo |
| Whether the Court should reconsider Lo | Dissent: Lo was wrongly decided and misleads Legislature about regulatory authority | Majority: continues to follow Lo and its retroactivity | Dissent urges reconsideration; Court declined to do so in this opinion |
Key Cases Cited
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (invalidated § 33.021(b) as unconstitutionally overbroad)
- Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (applied Lo retroactively to grant relief despite lack of trial challenge)
- Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015) (confirmed retroactive application of Lo; stated unconstitutional statutes are void ab initio)