Smith, Fredrichee Douglas
2015 Tex. Crim. App. LEXIS 707
| Tex. Crim. App. | 2015Background
- Defendant (Smith) was convicted of possession of child pornography, two counts of sexual assault of a child, and online solicitation of a minor (Tex. Penal Code §33.021(b)); sentences were imposed and partly suspended; court of appeals affirmed but reformed judgments to delete specific dollar amounts of court costs for lack of a bill of costs.
- The online-solicitation conviction under §33.021(b) was challenged in this Court after Ex parte Lo, in which this Court held §33.021(b) facially unconstitutional as overbroad.
- Smith did not raise the constitutional challenge to §33.021(b) at trial or on direct appeal; Lo was decided after Smith filed his appellate brief.
- The State argued the claim was forfeited, that this Court should not address an issue the court of appeals did not decide, and that habeas corpus is the proper remedy.
- The Court considered whether a conviction under a statute previously declared facially unconstitutional is void ab initio and whether it may be attacked despite procedural default; the Court also addressed the separate issue of assessment of court costs in light of Johnson v. State.
Issues
| Issue | Smith's Argument | State's Argument | Held |
|---|---|---|---|
| Validity of conviction under §33.021(b) (online solicitation) | §33.021(b) was held facially unconstitutional in Ex parte Lo; a conviction under a void statute is void and may be attacked at any time | Smith forfeited the claim by failing to raise it earlier; courts and State should not be required to anticipate later invalidation of statutes | Court: Because §33.021(b) was previously held facially unconstitutional, convictions under it are void ab initio; reversed and rendered acquittal for the solicitation count |
| Procedural posture / jurisdiction to consider unpreserved constitutional claim on PDR | Even if unpreserved, a conviction under a facially invalid statute is a Marin category-one right that cannot be forfeited; Court may address for judicial economy | Court of appeals did not decide the constitutional issue; PDR reviews decisions of courts of appeals and this issue should be raised via habeas | Court: Exercised jurisdiction on PDR as the court of appeals’ affirmance implicitly rejected a constitutional impediment; addressed merits for judicial economy |
| Remedy when statute is void | Void statute means no valid law to support prosecution; conviction must be vacated and prosecution dismissed/acquittal rendered | State suggests habeas as the appropriate channel and cautions against retroactive relief on PDR | Court: Acquittal rendered for the §33.021(b) conviction because the statute is stillborn and void ab initio |
| Assessment of court costs | (Smith) clerk’s record lacked a bill of costs; amounts cannot be sustained without record support | (State) court of appeals erred in deleting amounts; but Johnson v. State provides roadmap for costs | Court: Granted State’s PDRs on costs, vacated and remanded the court-of-appeals decisions on costs for reconsideration in light of Johnson v. State; disposition of solicitation count made PD-1793-13 moot as to State’s petition |
Key Cases Cited
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (holding Tex. Penal Code §33.021(b) facially overbroad)
- Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (procedures and standards governing assessment of court costs)
- Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (facial constitutional challenges generally must be preserved)
- Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (Marin categories of rights: absolute, waivable-only, and request-only)
- Reyes v. State, 753 S.W.2d 382 (Tex. Crim. App. 1988) (unconstitutional statutes are void and treated as if they never existed)
- Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (remedies and precedents regarding relief following invalid statutes)