Gray, Donald Lee, WR-82,772-02

Background

Donald Lee Gray pled guilty in 2007 to three state‑jail felony counts charging violations of Tex. Penal Code § 21.15(b)(1) (improper photography) and was sentenced to one year in a state jail and fees; he did not appeal.
In 2014 the Texas Court of Criminal Appeals in Ex parte Thompson held § 21.15(b)(1) facially unconstitutional under the First Amendment because it criminalized expressive conduct (photographs/recordings) based on content and failed strict scrutiny.
Gray filed an art. 11.07 habeas application (Dec. 2014) seeking vacatur of his § 21.15 convictions in light of Thompson; the State opposed, arguing Gray was no longer “in custody” and had not shown continuing restraint.
The trial court signed proposed findings and conclusions (F&Cs) adopting the State’s position on January 12, 2015; Gray then amended to assert jurisdiction under Tex. Const. art. V, § 8 and supplemented the record with an affidavit describing ongoing collateral restraints from the felony convictions (firearm and licensing disabilities, jury service, travel, stigma, health effects).
Gray argues (1) his convictions rest solely on a statute now held facially invalid and therefore must be vacated; (2) Ex parte Chance supports relief without additional proof of continued restraint; alternatively he seeks remand for the court to consider his affidavit or dismissal without prejudice to refile.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions under § 21.15(b)(1) must be vacated after Thompson	Gray: convictions are based solely on a statute later held facially unconstitutional; no valid conviction can remain	State: applicant is no longer in custody; art. 11.07 requires proof of continuing restraint before vacatur	Court of Criminal Appeals in Thompson held § 21.15(b)(1) facially unconstitutional; convictions based solely on that statute are properly subject to vacatur (Gray relies on Thompson/Chance)
Whether art. 11.07 jurisdiction requires applicant to be "in custody" or show continuing restraint post‑sentence	Gray: art. 11.07 relief is available and Ex parte Chance shows vacatur may issue without additional proof of restraint for statutes later invalidated	State: Gray must prove continuing restraint because he has completed sentence; absent restraint art. 11.07 cannot proceed	Gray invoked alternative jurisdiction under Tex. Const. art. V, § 8 and filed an affidavit of continuing restraint; he relies on Ex parte Chance and Ex parte Hargett to preserve relief pathways
Sufficiency of the record (timeliness of affidavit and F&Cs)	Gray: the filed affidavit demonstrates collateral/legal restraints; if court deems record inadequate, remand or dismissal without prejudice is appropriate	State: F&Cs were signed before affidavit; argues record lacks requisite proof	Gray requested remand for evidentiary hearing or dismissal without prejudice to refile; he preserved appellate rights by filing a notice of appeal to protect art. V, § 8 claim
Proper remedy and procedural route (art. 11.07 vs. art. V, § 8)	Gray: may proceed under art. 11.07 and/or art. V, § 8; Hargett allows amendment to invoke article V remedies when art. 11.07 custody requirement fails	State: challenges jurisdiction and procedural sufficiency	Gray amended to invoke article V, § 8; he seeks writ vacating convictions and dismissal of indictments, or remand/dismissal without prejudice if record defects remain

Key Cases Cited

Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (held Tex. Penal Code § 21.15(b)(1) facially unconstitutional under the First Amendment)
Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (approved vacatur of conviction based on statute later declared unconstitutional)
Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (art. 11.07 custody/continuing‑restraint discussion for post‑sentence applicants)
Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) (permitted amendment to pursue relief under Tex. Const. art. V, § 8 when art. 11.07 custody requirement not met)
Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008) (discusses interplay of post‑conviction remedies and appellate jurisdiction)