Ex Parte Lea, 2016 Tex. Crim. App. LEXIS 1339

In 2008 Lea pled guilty to three counts of possession of child pornography; two counts were probated for 10 years (counts two and three).
Four years later he pled guilty to improper visual photography (a state-jail felony) and was sentenced to 2 years; the State moved to revoke Lea’s community supervision on counts two and three based solely on that conviction.
The trial court revoked Lea’s probation and sentenced him to 6 years’ imprisonment based on the improper-photography conviction.
In Ex parte Thompson the Court held Texas Penal Code §21.15(b)(1) (improper photography) facially overbroad and unconstitutional; Lea’s subsequent habeas application resulted in that conviction being set aside.
Lea then sought post-conviction relief to vacate the revocation because the sole ground for revocation was a conviction under a statute now void ab initio.
The Court held Lea is entitled to relief: the revocation judgment was set aside and the case remanded for further proceedings consistent with treating the void statute as never having existed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether community-supervision revocation based solely on a conviction under a statute later declared facially unconstitutional must be vacated	Lea: Revocation rested only on a conviction under a statute void ab initio, so revocation is invalid and supervision must be reinstated	State: (agreed below and in briefing) but originally sought remand for possible new revocation proceedings; no valid basis to sustain revocation because the predicate conviction was set aside	Held for Lea: revocation set aside and case remanded because the statute was void from inception and the conviction could not support revocation
Whether a defendant forfeits the right to relief for a conviction under a subsequently invalidated statute by failing to raise the constitutional challenge earlier	Lea: Due-process right not to be convicted under a facially unconstitutional statute cannot be forfeited	State: (not urged to bar relief here); dissent argued relief should require showing statute unconstitutional as-applied	Held for Lea: relief available despite earlier forfeiture; conviction set aside because statute was facially invalid and void ab initio

Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015) (facially unconstitutional statute is void from inception and convictions under it must be vacated)
Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015) (conviction set aside when statute later declared facially unconstitutional; due-process protection cannot be forfeited)
Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (Texas improper-photography statute declared facially overbroad and invalid under the First Amendment)
Ex parte Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012) (distinguished — setting aside a predicate conviction for voluntariness does not necessarily undo later convictions that depended on the felon status)
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) (judge may suspend sentence and place defendant on community supervision)
Moore v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980) (community supervision may be revoked for a sole violation of a supervision condition)