Ex parte Beck

• Decision Date: 22 November 2017
• Docket Number: NO. PD-0618-16,PD-0618-16
• Citation: 541 S.W.3d 846
• Parties: EX PARTE Clinton David BECK, Appellant
• Court: Texas Court of Criminal Appeals

541 S.W.3d 846

EX PARTE Clinton David BECK, Appellant

NO. PD-0618-16

Court of Criminal Appeals of Texas.

Delivered: November 22, 2017

Terri R. Zimmermann, Jack B. Zimmermann, Zimmermann Lavine & Zimmermann, P.C., Houston, TX, for Appellant.

Joshua D. Presley, Assistant District Attorney, New Braunfels, TX, Stacey Soule, Austin, TX, for the State.

OPINION

Alcala, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Hervey, Richardson, Keel, and Walker, JJ., joined.

In this case, we consider whether a person convicted of a criminal offense may present a facial challenge to the constitutionality of a statute for the first time in an application for a post-conviction writ of habeas corpus under circumstances in which the statute at issue has never been judicially declared by any court with binding authority to be facially unconstitutional. We agree with the court of appeals's conclusion that Clinton David Beck, appellant, may not bring, in the first instance, his facial constitutional challenge to the statute of conviction in a post-conviction habeas proceeding in which he seeks relief from his plea of guilty to the offense of engaging in an improper relationship with one of his students. Because the statute challenged by appellant has never before been declared facially unconstitutional by any court with binding authority and he did not preserve this challenge in the trial court, this complaint is not cognizable when raised for the first time in a post-conviction habeas application. We will affirm the court of appeals's judgment upholding the trial court's denial of post-conviction habeas relief.

I. Background

In 2010, appellant was working as a middle school teacher. Appellant began to form a close relationship with one of his students, Danielle,¹ who was in eighth grade and thirteen or fourteen years old at the time. Danielle participated in a mentoring program that appellant oversaw, and appellant also instructed Danielle in health class. Despite the school's policy against texting between teachers and students, appellant began sending text messages to Danielle. At one point, Danielle's mother became concerned about the frequency of the text messages between appellant and her daughter, and she checked Danielle's phone. Danielle's mother found text conversations between appellant and Danielle pertaining to sexual topics. Danielle's mother called the police to report appellant's behavior, and she also brought the matter to the attention of the school principal.

Appellant was arrested and charged with the offenses of online solicitation of a minor and engaging in an improper relationship with a student. See former TEX. PENAL CODE §§ 33.021(b) (setting forth offense of online solicitation of a minor due to sexually explicit electronic communications), 21.12(a)(2) (setting forth offense of improper educator-student relationship due to sexually explicit electronic communications) (West 2010). Pursuant to a plea bargain, appellant agreed to plead guilty to the improper-relationship charge, forfeit his teaching license, and not apply for any future teaching licenses in the United States.² In exchange, the State dismissed the online-solicitation charge. Following appellant's guilty plea, the trial court sentenced him to ten years' confinement, suspended for ten years, and it placed him on community supervision. Appellant did not raise any objection to the constitutionality of the improper-relationship statute prior to pleading guilty. Appellant did not appeal his conviction or sentence.

In 2014, appellant filed an application for a post-conviction writ of habeas corpus pursuant to Code of Criminal Procedure Article 11.072.³ In his application, appellant argued that his conviction was invalid because the improper-relationship statute under which he had been convicted was unconstitutional on its face. At the time of appellant's offense, the statute prohibited, in relevant part, "[a]n employee of a public or private primary or secondary school" from engaging in "conduct described by [the online-solicitation-of-a-minor statute,] Section 33.021 [,]" with a student "enrolled in a public or private primary or secondary school at which the employee works," regardless of the age of the student. See former TEX. PENAL CODE § 21.12(a)(1),(2) (West 2010).⁴ The relevant portion of the online-solicitation-of-a-minor statute, Section 33.021, in turn, specified at the time of appellant's conduct that a person over the age of seventeen commits an offense if, "with the intent to arouse or gratify the sexual desire of any person," he intentionally "communicates in a sexually explicit manner with a minor" or "distributes sexually explicit material to a minor" "over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service." Id. § 33.021(b) (West 2010).⁵

In his application, appellant noted that, after he pleaded guilty to the improper-relationship charge, this Court declared former Subsection (b) of the online-solicitation-of-a-minor statute facially unconstitutional in violation of the First Amendment in Ex parte Lo , 424 S.W.3d 10, 14, 26-27 (Tex. Crim. App. 2013) (holding former Penal Code Section 33.021(b) unconstitutional "because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse"). In light of this, appellant argued that, because the improper-relationship statute references the online-solicitation provision that this Court declared to be facially unconstitutional in Lo , the holding in that case also necessarily meant that the improper-relationship statute was unconstitutional on its face. He further contended that he was entitled to relief even though his complaint was presented for the first time in a post-conviction habeas proceeding because a facially unconstitutional statute is void from its enactment, and a conviction pursuant to such a statute may be challenged at any time.

The trial court denied appellant's request for habeas relief. In its findings of fact and conclusions of law, the trial court determined that the improper-relationship statute is "distinct from" the online-solicitation statute and that, although the improper-relationship statute "incorporates elements of" the online-solicitation statute, the improper-relationship statute "has additional narrowing elements and is applicable in an entirely different context" from the online-solicitation statute. The trial court also determined that, "[b]ecause of the distinct context of [the improper-relationship statute], a different speech analysis applies than that applied to [the online-solicitation statute] in Ex parte Lo. " The trial court concluded that the law regarding the constitutionality of the improper-relationship statute "has not changed" in light of Lo, and it upheld the statute as constitutional.

On appeal, the court of appeals affirmed the trial court's denial of relief by reasoning that appellant was barred from raising his constitutional challenge to the improper-relationship statute for the first time in a post-conviction habeas proceeding. Ex parte Beck , No. 03-14-00818-CR, 2016 WL 2732131, at *5-7 (Tex. App.—Austin May 4, 2016) (mem. op., not designated for publication). Relying on this Court's opinion in Karenev v. State , the court of appeals reasoned that facial challenges to the constitutionality of a statute implicate the type of right that is subject to forfeiture, and thus a defendant forfeits his complaint if he fails to object at trial. Id. at *6 (citing Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) ). The court of appeals also cited Karenev for the proposition that a statute is " 'presumed to be constitutional until it is determined otherwise.' " Id. (quoting Karenev , 281 S.W.3d at 434 ). Applying these principles to appellant's case, the court of appeals held that appellant had waived any facial constitutional challenge to the improper-relationship statute by failing to object to the statute's constitutionality in the trial court. Id.⁶

Regarding appellant's argument that Lo had automatically invalidated the improper-relationship statute and thus he should be permitted to challenge his conviction pursuant to a void statute even though he failed to object at trial, the court of appeals disagreed. It reasoned that this Court "has made no determination regarding the constitutionality of [the improper-relationship statute] in Lo or in any other case." Id. It continued, "Whether or not the court of criminal appeals or this Court might ultimately determine that [the improper-relationship statute] is unconstitutional for the reasons identified in Lo , there has been no binding judicial declaration on that matter at this point." Id. at *7. The court of appeals went on to observe that, although the improper-relationship statute references the provisions in the online-solicitation statute, the improper-relationship statute sets forth an entirely separate offense that is "not dependent on any determination being made under" the online-solicitation statute. Id. The court of appeals also noted that the improper-relationship statute "has additional elements that were not required for conviction under [the] former [online-solicitation statute] and that those additional elements might ultimately impact the constitutionality of the prohibition." Id. Although the court of appeals acknowledged the general principle that a defendant, at any time and without regard to ordinary preservation-of-error requirements, may bring a challenge to his conviction under a statute that has already been declared facially unconstitutional, the court of appeals concluded that that principle was inapplicable here, under these circumstances in which the improper-relationship statute is distinct from the defunct online-solicitation provision and there has been...