Ex parte Chance

• Decision Date: 07 May 2014
• Docket Number: 81,136–01.
• Citation: 439 S.W.3d 918 (Mem)
• Parties: Ex parte Donald Ray CHANCE, Applicant.
• Court: Texas Court of Criminal Appeals

439 S.W.3d 918 (Mem)

Ex parte Donald Ray CHANCE, Applicant.

81,136–01.

Court of Criminal Appeals of Texas.

May 7, 2014.

Matt Horak, for Donald Ray Chance.

William J. Delmore III, Houston, for State of Texas.

OPINION

PER CURIAM.

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App.1967). Applicant was convicted of two counts of online solicitation of a minor and sentenced to concurrent terms of two years' imprisonment for each count.

This Court, in Ex parte Lo , held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App.2013). Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his convictions be set aside. The trial court recommends granting relief. After considering the trial court's findings and the parties' objections and responses regarding them, this Court agrees with the trial court, and relief is granted.

The judgments for both counts in Cause No. 10–05–05347–CR in the 410th District Court of Montgomery County are set aside. Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment so that the indictment may be disposed of in accordance with this Court's opinion in Ex parte Lo . The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice—Correctional Institutions Division and Pardons and Paroles Division.

COCHRAN, J., filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

COCHRAN, J., filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.

The Court properly grants prompt relief to applicant on his claim that his conviction under Section 32.021(b) was void ab initio because we have held that the “sexually explicit communications” statute is unconstitutional.¹ It is hornbook law that

Generally, a statute that has been declared unconstitutional is void from its inception and cannot provide a basis for any right or relief. It is thus the general rule that an unconstitutional statute, even though it has the form and name of law, in reality is not law and in legal contemplation is as inoperative as if it had never undergone the formalities of enactment.²

For this reason, a person may always obtain relief from an indictment or a conviction based on a penal statute that has been previously declared unconstitutional. He may obtain relief in a pretrial motion or writ; he may obtain relief on direct appeal; he may obtain relief in a habeas corpus proceeding, and it matters not whether he had ever previously objected to the statute or its application to him. The unconstitutional statute has disappeared in a puff of smoke. No one can be convicted for a non-existent crime and no prior conviction based upon that unconstitutional statute is valid.³

As the United States Supreme Court explained over a century ago, in holding that a person may obtain habeas corpus relief if he has been convicted of a crime later declared unconstitutional,

The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court's authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws.⁴

The idea that one could be incarcerated for conduct that has been held not to be criminal “inherently results in a complete miscarriage of justice.”⁵ Therefore, most federal courts, including the Fifth Circuit, hold that one who has been convicted under a penal statute that is later found unconstitutional is “actually innocent” of any crime because the “core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law.”⁶

We follow this “void ab initio” concept. For example, we quoted the above section of Texas Jurisprudence in Reyes v. State,⁷ as we held that the Speedy Trial Act, which had previously been held unconstitutional in Meshell v. State,⁸ was void ab initio, unenforceable, and could provide no relief to anyone. As if beating a dead horse, we said, “an unconstitutional statute is void from its inception[;] ... when a statute is adjudged to be unconstitutional, it is as if it had never been passed [;] ... the statute is stillborn, ... [and] had been fatally smitten by the Constitution at its birth[,] ... [and] is of no more force or validity than a piece of blank paper, and is utterly void.”⁹

A penal statute that has been declared unconstitutional cannot suddenly rise like Phoenix from the ashes just because a defendant did not challenge its constitutionality before it had been declared unconstitutional in some other case. An unconstitutional penal statute is void for all comers, those who have already been convicted of it before it was declared void, as well as those prosecuted under it after it had been declared void. It has long been held that a person convicted under a statute later declared to be void is entitled to relief when he raises that claim for the first time in a writ of habeas corpus.¹⁰

As the Fifth Circuit has explained, a person who is convicted of a void penal offense, is “actually innocent” of any crime.¹¹ Actual innocence does not depend upon complaining about one's innocence in the trial court before the penal statute was declared void.¹² For example, in Ravenbark v. State,¹³ the Houston Fourteenth Court of Appeals ignored the defendant's ineffective-assistance-of-counsel claim on appeal and summarily reversed his conviction and entered a judgment of acquittal because the stalking statute had been found facially unconstitutional after his conviction.¹⁴ The court of appeals granted relief even though the defendant never raised the issue on appeal, not even after we held the stalking statute unconstitutional. No matter. He was innocent of the crime of stalking because that statute had been found void by this Court. All courts grant relief to a person convicted under a void penal statute with the sole exception that if the parties have mutually benefitted from the statute, they are estopped from later complaining about that benefit.¹⁵

In Karenev v. State,¹⁶ we held that a defendant could not raise a facial challenge to the constitutionality of a statute for the first time on appeal.¹⁷ But that situation is entirely different from the present one. In Karenev, the defendant was attacking a valid statute (or at least one that had not yet been declared void); in the present case, applicant is requesting relief for a conviction of a non-crime. He is actually innocent of any criminal wrongdoing because the penal statute under which he was convicted has already been declared nonexistent. He may take advantage of that “void ab initio” status today, yesterday, tomorrow, or even ten years from now. Anyone who has been convicted under the now void provisions of Section 32.021(b) is “innocent” and may obtain an acquittal, whether it is in the trial court, on direct appeal, or in a habeas proceeding. That is constitutionally required. That is hornbook law.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

Applicant claimed at trial that the statute under which he was prosecuted was unconstitutional because it was overly broad, but he failed to litigate that claim on direct appeal.¹ In its answer to the habeas application, the State contends, among other things, that applicant forfeited his claim by failing to raise it on direct appeal. Relying upon our decision in Karenev v. State, the State contends that a “facial challenge to the constitutionality of a statute does not implicate the ‘jurisdiction’ of a trial court, and is based upon a right that is subject to forfeiture by inaction.” The State argues that “applicant could have complained of the facial unconstitutionality of the statute in his direct appeal from the original judgment of conviction. Having failed to do so, he cannot raise the issue for the first time in a postconviction writ after his probation was revoked.” The Court grants relief without addressing this contention. I dissent because I think that the Court as a whole should address the State's claim after full briefing by the parties.

Ordinarily, a claim is not cognizable on habeas if it could have been, but was not, raised on direct appeal.² In Karenev v. State, we held that a facial challenge to the constitutionality of a statute—even one that defines the offense charged—is a claim that can be forfeited.³ It would be anomalous to hold that a claim can be forfeited for the purpose of direct appeal but not for habeas. Perhaps Karenev can be meaningfully distinguished from the present case because, here,...