Gray, Donald Lee
WR-82,772-03
| Tex. | Feb 13, 2015Background
- In 2006 Donald Lee Gray pled guilty to three state jail felonies for violating Tex. Penal Code § 21.15(b)(1) (improper photography) and was sentenced to one year confinement in a state jail and fines/fees.
- Gray did not appeal his convictions at the time.
- In 2014 this Court held that § 21.15(b)(1) is facially unconstitutional under the First Amendment in Ex parte Thompson.
- Gray filed an Art. 11.07 habeas application (Dec. 19, 2014) seeking vacatur of his § 21.15 convictions in light of Thompson; the State challenged jurisdiction and argued Gray must show continuing restraint.
- Gray amended to invoke Texas Const. art. V, § 8, filed an affidavit describing collateral disabilities and continuing restraints from the felony convictions (firearm/disability, jury service, employment/licensing barriers, travel, stigma, health effects), and requested vacatur or, alternatively, remand for evidentiary hearing or dismissal without prejudice to refile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 21.15(b)(1) is facially unconstitutional | Gray: § 21.15(b)(1) was held facially unconstitutional in Thompson and therefore convictions under it are invalid | State: statutory challenges to custody requirement and procedural bars; does not dispute Thompson generally | Court in Thompson: § 21.15(b)(1) is facially unconstitutional under the First Amendment (applicable precedent relied on by Gray) |
| Whether Gray is entitled to habeas relief for convictions under a statute later held unconstitutional | Gray: convictions disappeared with the statute; guilty plea/ failure to appeal do not bar relief (Ex parte Chance) | State: Gray must show continuing restraint after discharge to satisfy Art. 11.07 custody requirement | Ex parte Chance precedent supports vacatur of convictions based on a subsequently invalidated statute without requiring additional proof of restraint for purposes of relief |
| Whether Gray must prove continuing restraint to invoke Art. 11.07 | Gray: not required when relief sought is vacatur of conviction based on facially invalid statute; nonetheless he provided an affidavit showing collateral restraints | State: Article 11.07 requires the applicant be in custody; post-sentence applicants must show continuing restraint (citing Harrington) | Distinction: Harrington (ineffective assistance claim) differs; Chance governs invalid-statute claims and suggests no extra restraint proof needed; Gray also invoked Art. V, § 8 as alternative jurisdictional basis |
| Procedural posture: whether district court erred in denying relief without considering Gray’s affidavit or holding a hearing | Gray: district court should consider amended petition, affidavit and either vacate convictions, remand for hearing, or dismiss without prejudice to refile | State: relied on F&Cs signed before affidavit and jurisdictional objections | Gray requested remand or dismissal to preserve right to refile and appealed to protect Art. V, § 8 relief; he seeks this Court’s intervention to vacate convictions or remand for evidentiary consideration |
Key Cases Cited
- Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (habeas relief vacating conviction under statute later held unconstitutional; guilty plea and failure to appeal do not bar relief)
- Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) (district-court Article V, § 8 avenue where Art. 11.07 custody requirement defeats relief; approval of amendment to invoke Art. V, § 8)
- Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (post‑sentence Art. 11.07 applicants claiming ineffective assistance must prove continuing restraint to satisfy custody requirement)
- Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008) (discussing interplay of district-court plenary habeas authority and statutory postconviction remedies)