Ex parte Fournier

• Decision Date: 28 October 2015
• Docket Number: NO. WR–82,102–01,NO. WR–82,103–01,WR–82,102–01,WR–82,103–01
• Citation: 473 S.W.3d 789
• Parties: Ex parte Curtis Fournier, Applicant Ex parte Christopher Dowden, Applicant
• Court: Texas Court of Criminal Appeals

473 S.W.3d 789

Ex parte Curtis Fournier, Applicant

Ex parte Christopher Dowden, Applicant

NO. WR–82,102–01

NO. WR–82,103–01

Court of Criminal Appeals of Texas.

DELIVERED: October 28, 2015

Sarah V. Wood, Assistant Public Defender, Houston, TX, for Applicant.

Roe Meredith Wilson, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

KEASLER, J., delivered the opinion of the Court, in which MEYERS, HERVEY, RICHARDSON, and NEWELL, JJ., join.

After being convicted and sentenced for online solicitation of a minor, Curtis Fournier and Christopher Dowden filed applications for a writ of habeas corpus. In addition to seeking relief based on this Court's opinion holding the applicable statute unconstitutionally overbroad, Applicants also seek relief under an actual innocence theory. Holding that Applicants do not present true actual innocence claims, we conclude they are not entitled to actual innocence relief. However, consistent with precedents granting relief under an unconstitutional statute theory, we set aside Applicants' judgments.

Fournier and Dowden both pleaded guilty to the offense of online solicitation of a minor under Texas Penal Code § 33.021(b)¹ and were sentenced to terms of confinement in 2008 and 2011, respectively. In 2013, this Court in Ex parte Lo held § 33.021(b) to be unconstitutionally broad.² Although the State had a compelling interest in protecting children from sexual predators, § 33.021(b) was not narrowly drawn "because there are narrower means of achieving the State interests advanced here, at least some of which are already covered by other statutes."³ Section 33.021(b)'s constitutional infirmity was found in the Legislature's drafting. The Court did not necessarily hold that Lo's conduct was constitutionally protected.

In their respective applications, Applicants request habeas corpus relief under Lo and under the theory that, because the statute is unconstitutional, they are "actually innocent." There is no disagreement among the parties that Applicants are entitled to have their judgments set aside under Lo.⁴ We agree. The undecided issue is whether Lo entitles Applicants to relief under an "actual innocence" theory. We filed and set their applications to answer this question.

Actual Innocence in the Texas Courts

Texas's actual innocence jurisprudence is heavily borrowed from federal law, but its application has been substantially modified. In Herrera v. Collins, by way of a federal habeas corpus petition, Herrera sought to present evidence that his brother committed the capital murder for which he was convicted.⁵ He claimed that he was "actually innocent" of the capital murder and that the prohibition of cruel and unusual punishment and the Fourteenth Amendment's due process guarantee forbade his execution for the offense.⁶ The United States Supreme Court addressed the use of actual innocence as a way to avoid the bar of subsequent federal habeas petitions. Although a federal petitioner may have his federal constitutional claim considered on the merits if he "supplements his constitutional claim with a colorable showing of factual innocence," "a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."⁷ The Court never held that factual innocence is eligible as a freestanding claim for relief.⁸ For the sake of argument, the Court assumed that it did and went on to hold that Herrera could not satisfy the extraordinarily high showing required.⁹

Taking the concept of actual innocence from the United States Supreme Court's opinion in Herrera, this Court in State ex rel. Holmes v. Honorable Court of Appeals for the Third District first declared that the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.¹⁰ The Holmes Court adopted as persuasive Herrera 's passage in assuming a freestanding constitutional right: "We may assume for the sake of argument in deciding this case ... a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim."¹¹ Holmes held that only when an applicant can show that no rational trier of fact could find applicant guilty beyond a reasonable doubt in light of newly discovered evidence is an applicant entitled to relief on a factual innocence claim.¹²

Two years after Holmes, the Supreme Court's "actual innocence" assumption¹³ was firmly established into Texas habeas corpus law as a path to habeas relief. This Court's opinion in Ex parte Elizondo extended the potential due process violation from death-penalty cases to every case involving incarceration.¹⁴ Elizondo also established an applicant's burden to obtain actual-innocence relief: "The petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence."¹⁵ Because punishment of an innocent man violates the Due Process Clause of the United States Constitution, an applicant is entitled to relief if he can "prove by clear and convincing evidence to this Court, in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on his newly discovered evidence."¹⁶ Elizondo 's statement was clear: To be eligible for actual innocence relief, an applicant must "unquestionably establish" his factual innocence through newly discovered evidence.¹⁷

Subsequent precedent reaffirmed Elizondo 's fact- and conduct-centric notions of actual innocence. In Ex parte Rich, this Court rejected the characterization of Rich's "actual innocence" claim that an improper enhancement rendered him actually innocent as to the improper enhancement paragraph.¹⁸ Although we granted Rich relief because his sentence was illegal, this Court stated that it is incorrect to treat Rich's claim as involving actual innocence. The Court so held because there was no evidence that Rich was innocent of the offense used to enhance his punishment, and the mischaracterization of the offense used for enhancement did not make Rich innocent of the primary offense for which he was charged.¹⁹ Further, Rich's claims did not involve the "traditional hallmarks of actual innocence claims—newly discovered evidence showing that the defendant is being wrongfully imprisoned for a crime that he did not commit."²⁰

Our opinion in Wilson v. State²¹ elaborated on Rich 's holding. In a nearly unanimous opinion written by Judge Johnson, the Court stated, "We hold that the term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser-included offenses."²² Looking back to its federal origins, the Wilson Court clarified that a bare actual innocence claim does not countenance "legal innocence"—the notion that, despite committing the alleged conduct, the applicant is nonetheless not guilty.²³

The Wilson clarification was at the center of our recent opinion in Ex parte Mable, in which we denied an applicant's actual innocence claim when newly discovered forensic testing revealed that the substances forming the basis of Mable's drug possession conviction contained no illicit substances.²⁴ Although newly discovered evidence and facts were pleaded, we again looked to the applicant's conduct: "In this case, the applicant pleaded guilty to possession of a controlled substance. Therefore, it is possible that he intended to possess a controlled substance (which is not alone an offense) or that he attempted to possess a controlled substance (which is a lesser included offenses of possession)." ²⁵

In his application, Mable did not contest that newly discovered evidence proved that he did not commit or intend to commit a significant portion of the charged conduct, specifically the possession element.

"A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the State has convicted the wrong person of the crime."²⁶ An actual innocence claim must be accompanied by new "affirmative evidence of the applicant's innocence."²⁷ In the past we have evaluated the merits of actual innocence claims supported by new evidence in the form of witness recantations,²⁸ scientific testing like DNA,²⁹ and new expert testimony.³⁰ Applicants' requests for relief on a bare actual innocence basis do not allege any evidence establishing that had it been presented at trial, Applicants would not have been found guilty of the offense they were convicted of. Applicants do not contest that they engaged in the conduct for which they were convicted. The conduct on which the criminal prosecution was based still exists as a matter of historical fact. Instead, Applicants' contentions rest solely on a legal basis—the statute under which they were convicted is unconstitutionally broad in violation of the First Amendment. This claim is much different than pointing to new evidence supporting an argument that Applicants did not commit the conduct for which they were convicted. Lo, as matter of law, removed the criminal sanctions once affixed to Applicants' conduct because the statute criminalizing it was unconstitutionally drafted. Lo was decided on the heightened standard we use to measure a statute's language that restricts free speech. Our opinion in Lo is irrelevant to whether Applicants' conduct was in fact committed. We conclude that Applicants do not assert true claims of actual innocence for which relief may be granted; they are decidedly different.

By relying on the statute's overbreadth as a constitutional impediment to their convictions, Applicants' claims, if anything, more closely resemble Schlup v. Delo³¹ claims made in federal court or claims made in Texas pursuant to Code...