Lead Opinion
OPINION
delivered the opinion of the Court
A jury convicted appellant of possession of child pornography, two counts of sexual
Facts
Appellant was charged with offenses alleged to have occurred in 2008 when the named complainant was fourteen years old and appellant was twenty-two. Appellant was an instructor for a life-guarding class at a club swimming pool where the named complainant worked as a receptionist during that summer. The two became involved in a romantic relationship that involved sexual contact and “sexting” messages, some of which included nude photos.
Court of Appeals Opinion
On appeal, appellant claimed that trial counsel rendered ineffective assistance of counsel in various manners and that the amounts assessed against him as court costs should be deleted from the judgments because the clerk’s record did not contain a bill of costs. The court of appeals addressed the multiple claims of deficient performance by trial counsel and determined that appellant had not demonstrated deficient performance by trial counsel or prejudice and overruled his claim of ineffective assistance of counsel. Id. at *1-4, 2013 Tex.App. LEXIS 15273 at **4-10. The court of appeals held that the trial court correctly ordered appellant to pay court costs, but “did err in entering a specific dollar amount without any support in the record for that dollar amount.” Id. at *4, 2013 Tex.App. LEXIS 15273 at **11-12. Because there was no evidence in the record to support the trial court’s assessment of a specific dollar amount as court costs, the court of appeals reformed the trial court’s judgment in each case to delete the specific dollar amount of costs assessed. Id. at *4, 2013 Tex.App. LEXIS 15273 at *12. The court of appeals accordingly affirmed the judgments as reformed. Id.
Grounds For Review
Both appellant and the state filed petitions for discretionary review. We granted review of those petitions. The state’s petitions raise two grounds:
The court of appeals erred in holding that the sufficiency of the evidence justifying the assessment of court costs should be based on the clerk’s “bill of costs” rather than on the statutory predicate for the assessment of such costs. The court of appeals erred in failing to reform the judgment to adjudge the correct assessment of court costs as mandated by the relevant statutes.
Appellant’s petitions raise a single ground:
Mr. Smith’s conviction under Texas Penal Code Section 33.021(b) is void because the court of criminal appeals held this statutory subsection facially unconstitutional.
Appellant’s Petitions
In this Court, appellant challenges only the conviction for online solicitation of a
Appellant argues that, because of this Court’s ruling in Ex parte Lo
Appellant reasons that, because in Ex parte Lo this Court has already held that Section 33.021(b) is facially unconstitutional for over-breadth and “[b]ecause an unconstitutionally overbroad law is a void, nonexistent law, [he] has not forfeited his right to object to his conviction under that statutory subsection.”
Appellant argues that the trial court had no jurisdiction to render a judgment on a non-existent offense, thus his conviction on the basis of an unconstitutional statute, is a denial of due process, due course of law, and the Eighth Amendment prohibition against cruel and unusual punishment.
The state argues that, prior to the decision of the court of appeals on the online-solicitation case, appellant never objected to that prosecution on grounds that the statute was unconstitutional and argues that, therefore, “he cannot raise that chal
The state looks to our opinion in Kare-nev, in which we concluded that “a defendant may not raise for the first tipie on appeal a facial challenge to the constitutionality of a statute.” Id. It asserts that, based upon that rationale, “appellant was required to object in order to preserve the issue for direct appeal.”
The state suggests that this Court lacks jurisdiction to rule on “the constitutionality issue” because the court of appeals did not decide that issue and, in our discretionary-review capacity, we review “decisions” of the courts of appeals. It also contends that appellant has an adequate remedy at law via writ of habeas corpus and should be required to seek relief through such a writ.
In answer to the state’s claim that we lack jurisdiction to rule on the Lo issue, appellant argues that we may exercise our jurisdiction to correct a clear error in the name of judicial efficiency. He notes that, while the court of appeals did not address the constitutionality of Section 33.021(b), its decision affirming the conviction under that subsection directly conflicts with our decision in Lo. Appellant cites our language in Davison v. State,
Analysis
In Lo,
Davison involved a situation in which our rejection of the lower appellate court’s basis for disposition gave rise to another issue that was necessary to the appeal’s disposition but which the appellate court had not already addressed.
We have recognized that “an unconstitutional statute is void from its inception” and that “ ‘when a statute is adjudged to be unconstitutional, it is as if it had never been’ ” and that such “an unconstitutional statute is stillborn[.]” Reyes v. State,
In Marin, we recognized that our system contains rules of three distinct hinds:
(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.
Marin,
As the state notes, in Karenev we held that a defendant could not raise a facial challenge to the constitutionality of a statute for the first time on appeal.
We offer an example. Suppose a juvenile, who had been convicted of capital murder in 2004 and sentenced to death, complained for the first time on appeal that our death-penalty statute was unconstitutional because it permitted the execution of juveniles. In 2004, we would have summarily rejected any such complaint because the defendant did not object at trial. But in 2005, the Supreme Court held that the Eighth Amendment bars the execution of juveniles, even when they commit murder. Roper v. Simmons,
The distinction is that a Marin “category one” right, which is not subject to forfeiture or waiver by the failure to object, is a right that was recognized as fundamental before the defendant made his present claim. Any defendant, convicted or not, may obtain relief from a conviction under a statute that has already been held void. Imagine that the Supreme Court holding that the constitution does not permit the execution of juveniles was interpreted by trial courts to not apply to juveniles who were tried before the Simmons decision and who did not object at trial, thus permitting those juveniles to be executed. Such a rule would be both a fundamental miscarriage of justice and a rule that the Supreme Court, American society, and this Court would not accept. That is what Marin “category one” rights represent — a bulwark against the miscarriage of justice.
Appellant is entitled to relief. Because we have previously held that Section 33.021(b) is facially unconstitutional, there is no valid law upon which to base the conviction that appellant challenges in petition number PD-1793-13. See McFarlin v. State,
State’s Petitions
The state’s petitions challenge the court of appeals’s treatment of the trial court’s assessment of court costs. After the court of appeals handed down its opinion, we decided Johnson v. State,
Notes
. Appellant's petition for discretionary review was filed as a single document with a heading that listed each of the four court-of-appeals cause numbers that are attached to the appealed convictions. This Court docketed each of the four petitions with a separate number. The court of appeals’s opinion disposed of all four appealed cases in a single opinion that listed the four separate cause numbers because appellant’s complaints on direct appeal, applied to all four convictions.
.
. Appellant’s Br. x. Appellant’s appellate brief was filed on June 20, 2013. This Court delivered its opinion in Lo on October 30, 2013, and issued mandate on April 14, 2014.
. Appellant’s Br. 2.
.
. Appellant also asserts that affirming this conviction will violate the First Amendment and the Supremacy Clause.
. State’s Br. 10.
. Davison plead guilty to the offense of burglary of a building, a state jail felony. In a written "Guilty Plea Memorandum” and orally, the trial court advised Davison that a state-jail felony is punishable by not less than 180 days and no more than two years in a state-jail facility. But Davison also plead true to three felony enhancement paragraphs, which increased the available punishment range to that of a second-degree felony. Some four months after accepting the appellant's guilty
On appeal, Davison argued that the failure to admonish him with respect to the applicable range of punishment violated the statute and also rendered his guilty plea involuntary for purposes of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The court of appeals held that the trial court erred in failing to admonish Davison as required by Tex.Code Crim. Proc. article 26.13(a) before accepting his guilty plea and that, because the statutory admonishment is in the nature of a waiver-only right, this error could be asserted for the first time on appeal. But it also held that the error was harmless under Texas Rule of Appellate Procedure 44.2(b), the standard for non-constitutional errors. The court of appeals declined to reach the merits of Davi-son’s constitutional claim because, unlike the appellant’s statutory claim, his constitutional claim was subject to procedural default and was forfeited by his failure to raise it in the trial court and, even if properly preserved, any constitutional error was harmless.
.
Concurrence Opinion
filed a concurring and dissenting opinion.
I disagree with Judge Yeary’s contention that granting relief on an unpreserved claim of the sort before us amounts to resurrecting the now-defunct “right not recognized” exception to the contemporaneous objection rule. The right at issue here is not the same as the right at issue in Karenev v. State.
Of course, it is unlikely that the prosecutor and the defense attorney in a criminal trial would both be ignorant of the fact that the law on which the prosecution is based has been declared facially unconstitutional. And if they were, the defendant would almost certainly have a slam-dunk claim of ineffective assistance of counsel— unless, of course, the defendant had no attorney because he represented himself at
However, I agree with Judge Yeary, for the reasons given in his opinion, that a petition for discretionary review is not the appropriate avenue to address the type of claim before us when the court of appeals did not address it. And I also agree that appellant has an avenue in which to obtain relief on this claim — habeas corpus.
I also note that the legislature passed a statute this year that requires the appointment of counsel to file a habeas application in a non-capital case when the State represents to the convicting court that an indigent defendant was convicted or sentenced under a statute that was found unconstitutional by this Court or the United States Supreme Court.
I respectfully dissent to the Court’s disposition of both the State’s and appellant’s petitions for discretionary review in our cause number PD-1793-13. I concur in the Court’s disposition of the State’s other petitions for discretionary review.
.
. See id. at 434 ("A facial challenge to the constitutionality of a statute falls within the third category. Statutes are presumed to be constitutional until it is determined otherwise.”). See also id. at 431 (quoting United States v. Baucum,
. See Faretta v. California,
. If the Court is correct that the claim at issue is an absolute, prohibition or requirement (Marin category 1), see Marin v. State,
. See Acts 2015, 84th Leg., S.B. 662 (enacting Tex. Code Crim. Proc. art. 11.074).
. See id. §§ 2, 3. See also History tab S.B. 662: "Last Action: 06/16/2015 E Effective immediately.” http://www.capitol.state.tx.us/ BillLookup/History.aspx?LegSess=84R& Bill =SB662
Concurrence Opinion
CONCURRING AND DISSENTING OPINION
filed a concurring and dissenting opinion in which Keasler and Hervey, JJ., joined.
In Karenev v. State, a bare majority of this Court held that “[a] facial challenge to the constitutionality of a statute falls within the third category” of rights under the rubric of Marin v. State — that is to say, such a claim is of the sort that may be lost for appeal by simple inaction at the trial court level.
In effect, the Court has thereby resurrected (at least in part) a defunct exception to the contemporaneous objection rule: the right-not-previously-reeognized exception (but only for newly recognized category one Marin rights — what might otherwise be described as a right-not-previously-recognized-as-a-category-one-Marin-right exception). In doing so, however, the Court seems to overrule, by necessary implication, another nearly unanimous opinion, Sanchez v. State,
The way I see it, then, before we may grant the appellant the relief he seeks in this case, we are effectively put to the choice of either overruling Karenev or overruling Sanchez. The Court today does not acknowledge this dilemma. Instead, the Court resolves the case as if Sanchez simply did not exist.
Ordinarily, on discretionary review, this Court addresses only the “decisions” of the courts of appeals. See Tex. R. App. P. 66.1 & 68.1 (Court of Criminal Appeals “may review a court of appeals’ decision in a criminal case” either on its own initiative or on petition by any party); Gilley v. State,
It is not at all clear to me that the exception to Karenev that the Court carves out today is justifiable as long as Sanchez remains on the books. At the very least, this Court would benefit from an opinion from the court of appeals whether it believes it may reach the merits of Appellant’s facial challenge to the constitutionality of the statute, notwithstanding Karenev. But Appellant did not ask the court of appeals to review his current claim, and the court of appeals never ad
To do so would not deprive Appellant of recourse. If, as the Court holds today, Appellant’s claim really does fall within Marin’s category one — if society simply will not tolerate a conviction under a penal statute that has been judicially declared unconstitutional on its face — then Appellant will be permitted to raise his complaint for the first time in post-conviction habeas corpus proceedings. See Ex parte Moss,
To recap: Karenev held that a claim that a statute is facially unconstitutional is a category three Marin claim that must be preserved at trial before it may be raised on appeal. Today the Court holds that this is so only until such time as the statute has been declared by a court to be unconstitutional on its face, from which time forward the claim becomes Marin category one — an absolute prohibition that can be raised for the first time “at any time,” including for the first time on discretionary review.
I respectfully dissent to the. Court’s disposition of both the State’s and Appellant’s petitions for discretionary review in our cause number PD-1793-13. I concur in the Court’s disposition of the State’s other petitions for discretionary review.
. Query: At what point does this conversion take place? Is it when any appellate court declares a penal statute to be facially unconstitutional? Or is it only after this Court should eventually do so? ' Or not until the United States Supreme Court may happen to say so?
. See also Karenev,
. I believe that whether a particular claim falls within one Marin category or another should not be made to depend upon when that claim is recognized to be valid. Instead, it should simply depend upon the nature of the claim itself — does it seek to vindicate an interest that is so indispensable to the correct operation of the criminal justice system that its enforcement is not even optional with the parties. Marin,
. For a time, this Court seems to have regarded the rule that it will review only "decisions" of the courts of appeals as jurisdictional, deriving that notion from the constitutional amendment that instituted discretionary review in 1981. See Owens v. State,
. We know from Ex parte Sledge,
. Because I would not address Appellant's claim at all in this case, I need not ultimately' pass on the question of the correctness of the Court’s opinion in Ex parte Lo,