noting that the lower court denied relief prior to Ex Parte Lo; PDR granted and case remanded “for further action in light of our opinion in Ex Parte Lo.”; on remand, conviction reversed and remanded for dismissal8
How later courts described this case
- noting that the lower court denied relief prior to Ex Parte Lo; PDR granted and case remanded “for further action in light of our opinion in Ex Parte Lo.”; on remand, conviction reversed and remanded for dismissal8
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00818-CR
4576568
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/20/2015 10:45:46 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00818-CR
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 3/20/2015 10:45:46 AM
JEFFREY D. KYLE
Clerk
CLINTON DAVID BECK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
Appealed from the
207th District Court
Comal County, Texas
BRIEF FOR THE APPELLANT
ZIMMERMANN LAVINE
& ZIMMERMANN, P.C.
770 South Post Oak Lane, Suite 620
Houston, Texas 77056
(713) 552-0300 * (713) 552-0746 fax
TERRI R. ZIMMERMANN
State Bar No. 00797883
Terri.Zimmermann@ZLZSlaw.com
JACK B. ZIMMERMANN
State Bar No. 22266500
Jack.Zimmermann@ZLZSlaw.com
Attorneys for the Appellant,
CLINTON DAVID BECK
THE APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all
interested parties is provided below:
The Appellant:
Mr. Clinton David Beck
Counsel for Clinton David Beck:
Ms. Terri R. Zimmermann (on the writ and appeal only)
Mr. Jack B. Zimmermann
Zimmermann Lavine & Zimmermann, P.C.
770 South Post Oak Lane, Suite 620
Houston, Texas 77056
Mr. Robert M. “Matt” Kyle (trial only)
The Kyle Law Firm
707 N. Walnut Avenue
New Braunfels, Texas 78130
Counsel for the State:
Mr. Joshua D. Presley (on the writ and appeal only)
Ms. Jennifer C. Smith (trial only)
Comal County District Attorney’s Office
150 N. Seguin Ave, Suite 307
New Braunfels, Texas 78130-5122
i
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GENERAL STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
FINDER OF FACT COULD FIND THAT MR. BECK ACTED
WITH UNLAWFUL INTENT.
STATEMENT OF FACTS PERTINENT TO ISSUE ONE. . . . . . . . . . . . 9
ARGUMENT AND AUTHORITIES IN SUPPORT OF
ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Standard of Review... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ii
PAGE
B. The Statute of Conviction Required an Unlawful Intent.. . . . . 11
C. The State Abandoned and Presented No Evidence of
Unlawful Intent – The Evidence is Legally
Insufficient.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ISSUE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE STATUTE UPON WHICH THIS
CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
A NULLITY AB INITIO.
STATEMENT OF FACTS PERTINENT TO ISSUE TWO.. . . . . . . . . . 14
ARGUMENT AND AUTHORITIES IN SUPPORT OF
ISSUE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. The Instant Conviction Relies Exclusively on the
Violation of an Invalid Statute; therefore, the Trial
Court Erred in Denying Habeas Relief.. . . . . . . . . . . . . . . . . . . . . . . . . 15
1. Section 33.021(b) is Unconstitutional... . . . . . . . . . . . . . . . 15
2. Mr. Beck’s Conviction and Sentence
Are Defective and Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iv
INDEX OF AUTHORITIES
PAGE
State Cases
Ex Parte Chance, 2014 WL 1796648 (Tex. Crim. App. 2014) . . . . . . . . 16, 17, 19
Ex Parte Cooper, 2014 WL 1871722 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . 18
Ex Parte Downs, 2014 WL 2609723 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . 18
Ex parte Hollowell, No. 03-11-00240-CR, 2012 WL 1959309
(Tex. App. June 1, 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 11
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)),
reh'g denied, (Mar. 19, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15, 16
Ex parte Martin, 6 S.W.3d 524 (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . 10
Ex Parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . 11
Ex parte Rodriguez-Grimaldo, No. 03-12-00019-CR,
2013 WL 2631629 (Tex. App. June 5, 2013). . . . . . . . . . . . . . . . . . . . . . . 10
Ex Parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . 10
Ex Parte Williams, 2014 WL 2527787 (Tex. Crim. App. 2014). . . . . . . . . . . . . 18
Ex Parte Zavala, 421 S.W.3d 227 (Tex. App. – San Antonio 2013). . . . . . . . . 18
Freeman v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 18
Freeman v. State, No. 05-12-00923-CR,
2014 WL 6602691 (Tex. App. Nov. 21, 2014). . . . . . . . . . . . . . . . . . . . . 18
Ravenbark v. State, 942 S.W.2d 711 (Tex. App. –
Houston [14th Dist.] 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
v
PAGE
Reyes v. State, 753 S.W.2d 382 (Tex. Crim. App. 1988)). . . . . . . . . . . . . . . . . . 16
Sanders v. State, 2014 WL 887781 (Tex. App. – Texarkana 2014). . . . . . . . . . 18
Schuster v. State, 435 S.W.3d 362 (Tex. App. –
Houston [1st Dist.] 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Thomas v. State, 444 S.W.3d 4 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . 11
Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Reyes–Requena v. United States, 243 F.3d 893 (5th Cir. 2001).. . . . . . . . . . . . . 17
Constitutions, Statutes, and Rules
Tex. Penal Code Ann. § 21.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Penal Code Ann. § 33.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
TEX. R. APP. P. 9.4(1)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TEX. R. APP. P. 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
vi
NO. 03-14-00818-CR
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
CLINTON DAVID BECK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
Appealed from the
207th District Court
Comal County, Texas
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW CLINTON DAVID BECK, the Appellant in the above-
styled and numbered cause, and files this Brief for the Appellant.
STATEMENT OF THE CASE
This is a direct appeal from the trial court’s denial of relief from the
Application for Writ of Habeas Corpus that Mr. Beck filed pursuant to Section
11.072 of the Code of Criminal Procedure.
In late 2010, Mr. Beck, a middle school health teacher and coach in New
Braunfels, was investigated based on text messages he sent to one of his
students. The investigation resulted in his arrest and he was charged in
Cause No. CR2011-197 with two offenses: Online Solicitation of a Minor,
Count I; and engaging in an Improper Relationship Between
Educator/Student, Count II. Original Indictment at Clk. R. 4-5.1 There was
no allegation of unlawful touching.
On September 26, 2011, Mr. Beck pleaded guilty to Count II, Improper
Relationship Between Educator/Student, and the State dismissed the Online
Solicitation charged in Count I. Judgments at Clk. R. 15-20. On November 7,
2011 the trial court sentenced Mr. Beck to ten years in the Institutional
Division of the Texas Department of Criminal Justice, suspended the
confinement for ten years, and fined him $2,000.00. Id. Mr. Beck did not
appeal his conviction.
On September 4, 2014, Mr. Beck filed his Application for Writ of Habeas
Corpus. Clk. R. 21. The trial court held a hearing on October 21, 2014. The
1
The Clerk’s Record is contained in one original volume and one supplemental
volume, cited as “Clk. R. Page Number” and “Supp. Clk. R. Page Number,” respectively.
For example, “Clk. R. 1.” The court reporter’s record from the writ hearing is in one
volume cited as “Rptr. R. Page Number.” For example, “Rptr. R. 1.”
2
State submitted to the trial court proposed Findings of Fact and Conclusions
of Law, and the trial court signed them along with an Order denying relief on
November 24, 2014. Clk. R. 28-32. Mr. Beck’s counsel received the order on
December 11, 2014, and filed by mail Objections to the Findings and
Conclusions on December 18, 2014.2 Clk. R. 33-39. The trial court did not
withdraw or amend any of the Findings or Conclusions.3
Mr. Beck timely filed his Notice of Appeal on December 22, 2014.4 Clk.
R. 40-41.
STATEMENT REGARDING ORAL ARGUMENT
Mr. Beck respectfully requests oral argument. The issues involved in
this case are novel and present questions of first impression in the State.
Because there are no cases directly on point under the exact same fact pattern,
oral argument would facilitate and aid this Court’s decisional process by
2
Although counsel mailed and emailed the document on December 18, 2014,
it was not officially filed until December 29, 2014, presumably due to the holidays.
3
The trial court’s Court Administrator called the undersigned counsel on
December 19 to inform her that he had handed the Objections to the judge and the judge
denied relief.
4
Again, there was a slight delay between the mailing of the document and its
official filing.
3
allowing counsel the opportunity to answer any questions that the Court
might have that are not adequately covered in the parties’ Briefs.
ISSUES PRESENTED
Mr. Beck raises the following issues for appellate review:
ISSUE ONE
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
FINDER OF FACT COULD FIND THAT MR. BECK ACTED
WITH UNLAWFUL INTENT.
ISSUE TWO
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE STATUTE UPON WHICH THIS
CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
A NULLITY AB INITIO.
GENERAL STATEMENT OF FACTS
As stated above, in late 2010, Mr. Beck was a middle school health
teacher and coach in New Braunfels, Texas. Offense Report, State’s Exhibit
2 from Plea Hearing.5 He was investigated and charged based on text
5
The Transcript from the plea hearing that took place on September 26, 2011
as well as State’s Exhibit 2 (the offense report) were not originally designated for filing with
this Court. Undersigned counsel has requested that the court reporter and District Clerk,
4
messages he sent to one of his students that the State believed were
inappropriate. Original Indictment at Clk. R. 4-5. However, the text messages
did not contain any solicitation of the student to perform any physical act, and
there was never any allegation of any unlawful touching. Mr. Beck resolved
the charges against him by pleading guilty to Improper Relationship Between
Educator and Student in violation of Section 21.12 of the Texas Penal Code;
the State dismissed the Online Solicitation count under Section 33.021(b) of
the Texas Penal Code. Judgments at Clk. R. 15-20. He is currently
successfully serving his ten year probated sentence.
Undersigned counsel did not represent Mr. Beck at the time that the trial
court accepted his plea and sentenced him to probation. When she was hired
to represent him on habeas, she requested a complete copy of the District
Clerk’s file. Clk. R. 42. In response, she received a copy of the original
indictment in this case. It did not contain any pen and ink changes or other
amendments. The allegation in Count II under Section 21.12 in the original
indictment contained all of the required elements of that statute.
respectively, file these documents as soon as possible with this Court.
5
At the hearing on the Application, Mr. Beck argued that his conviction
was void because the Court of Criminal Appeals invalidated the underlying
statute upon which the conviction was based. Rptr. R. 5, 7, 33-37. The State
submitted Proposed Findings of Fact and Conclusions of Law and an Order
denying relief, which the trial court signed. Clk. R. 27-32. Mr. Beck objected
to those Findings and Conclusions, based primarily on two grounds:6
1. Subsequent to the hearing but immediately prior to filing Objections,
Mr. Beck’s counsel discovered that at the plea hearing, the State had deleted
all language in the indictment pertaining to the intent element of the offense.
In addition, there was no evidence to support that element and the trial
court’s Findings and Conclusions pertaining to Mr. Beck’s intent were
completely without factual support in the record, since the only evidence that
exists is that he had a lawful intent at the time he sent the messages. The
absence of any allegation or proof of the unlawful intent element justified
granting of habeas relief.
6
Mr. Beck objected to additional Findings and Conclusions as being
unsupported by the record, and respectfully incorporates those objections into this Brief
as further evidence of the trial court’s erroneous Findings and Conclusions.
6
2. Even had the indictment been valid, under the undisputed facts of
this case (text messages only; no solicitation and no unlawful touching) the
conviction rests solely upon an allegation that Mr. Beck’s conduct violated
Section 33.021(b) of the Texas Penal Code, which the Court of Criminal
Appeals held unconstitutional. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.
2013), reh'g denied, (Mar. 19, 2014). Therefore, Mr. Beck argued that relief was
justified. Clk. R. 33-39.
The trial court elected not to withdraw or amend the erroneous Findings
and Conclusions, and therefore the denial of relief stands and this appeal
followed.
SUMMARY OF THE ARGUMENT
ISSUE ONE
In order to violate Section 21.12 (Improper Relationship Between
Educator and Student), Mr. Beck must have sent the text messages with the
intent “to arouse or gratify the sexual desire of a person.” Although this
language appeared in the original indictment, the State amended the
indictment at trial and struck those words. Therefore, the guilty plea did not
encompass that element. The State offered no witnesses to testify or any other
7
evidence indicating that Mr. Beck had an unlawful intent. The only evidence
before the trial court was that Mr. Beck acted with a lawful intent. The
evidence is legally insufficient.
ISSUE TWO
The Court of Criminal Appeals held the Online Solicitation statute
(Section 33.021(b)) unconstitutional and as such, it was void ab initio and
cannot be used for any purpose. Mr. Beck’s conviction rests solely upon an
allegation that he violated that invalid subsection of the Online Solicitation
statute. There is no allegation or proof that any other subsection of the
Improper Relationship Between Educator and Student statute or the Online
Solicitation statute was implicated in this case. Even had the indictment and
the proof in this case not omitted the required intent element under the Online
Solicitation statute, because that statute was a nullity Mr. Beck’s conviction
of Improper Relationship Between Educator and Student based on the invalid
statute must fail. The trial court should have granted habeas relief.
8
ARGUMENT
ISSUE ONE
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK'S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
FINDER OF FACT COULD FIND THAT MR. BECK ACTED
WITH UNLAWFUL INTENT.
STATEMENT OF FACTS PERTINENT TO ISSUE ONE
As noted above, Mr. Beck entered a guilty plea to an amended
indictment that did not allege any unlawful intent. The State called no
witnesses. The offense report contains no admissions by Mr. Beck or other
evidence that he sent text messages to his student for any reason other than
he believed he was answering the student’s questions about topics they had
discussed at school during the health class that he taught. There is no
evidence that Mr. Beck had any intent to arouse anyone’s sexual desires.
Despite the lack of an allegation or evidence, the trial court’s Findings
of Fact state that Mr. Beck acted with an intent “to arouse or gratify the sexual
desire of a person . . . [and without] any legitimate purpose.” Clk. R. 29. Mr.
Beck specifically challenged the trial court’s Finding of Fact Number 5 on this
issue, calling to the court’s attention the lack of evidence in the record. Clk.
9
R. 35. The State did not file a response of any kind to the Objections. The trial
court did not withdraw or amend its Findings or Conclusions.
ARGUMENT AND AUTHORITIES IN SUPPORT OF ISSUE ONE
A. Standard of Review.
This Honorable Court has held that, “When reviewing the trial court’s
denial of an application for writ of habeas corpus under article 11.072 of the
Texas Code of Criminal Procedure, the appellate court must view the facts in
the light most favorable to the trial court’s ruling and uphold that ruling
absent an abuse of discretion.” Ex parte Rodriguez-Grimaldo, No.
03-12-00019-CR, 2013 WL 2631629, at *1 (Tex. App. June 5, 2013) (not
designated for publication) (citing Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex.
Crim. App. 2006)). “However, a deferential abuse of discretion review is not
appropriate in the context of the application of law to facts when the trial
court’s decision does not turn on the credibility or demeanor of witnesses.
When the trial judge is not in an appreciably better position than the
reviewing court, a de novo review by the appellate court is appropriate.” Ex
parte Hollowell, No. 03-11-00240-CR, 2012 WL 1959309, at *2 (Tex. App. June
1, 2012) (not designated for publication) (citing Ex parte Martin, 6 S.W.3d 524,
10
526 (Tex. Crim. App. 1999). “When the resolution of the ultimate question
turns on the application of legal standards, we conduct a de novo review.” Id.
(citing Ex Parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled
on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)).
“To determine if there is sufficient evidence to support a criminal
conviction, a reviewing court must ask whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
B. The Statute of Conviction Required an Unlawful Intent.
In order to violate Section 21.12 of the Texas Penal Code, Improper
Relationship Between Educator/Student (the offense of conviction), Mr. Beck
must have either engaged in conduct involving the unlawful touching of the
student (“sexual contact, sexual intercourse, or deviate sexual intercourse”)
or engaged in “conduct described by Section 33.021” with the student. Tex.
Penal Code Ann. § 21.12. Section 33.021 is the Online Solicitation statute. Tex.
Penal Code Ann. § 33.021. As mentioned above, there was never any
11
allegation or proof that Mr. Beck engaged in any unlawful touching of the
student; the only basis for the Improper Relationship charge and conviction
was an alleged violation of the Online Solicitation statute.
There are two ways to violate the Online Solicitation statute:
1) to use the internet to send an electronic mail or text message to
communicate in a sexually explicit manner with a minor or
distribute sexually explicit material to a minor (with the intent to
arouse or gratify the sexual desire of any person), which violates
subsection (b); or
2) to use the internet to knowingly solicit a minor to meet another
person (with the intent that the minor will engage in sexual
contact, sexual intercourse, or deviate sexual intercourse with the
actor or another person), which violates subsection (c).
Tex. Penal Code Ann. § 33.021.
There was never any allegation or proof that Mr. Beck solicited the
student in a way to violate subsection (c) of the statute; the sole basis for the
charged criminal liability was the mere sending of text messages that were
allegedly sexually explicit in violation of Section 33.021(b). That subsection
requires an unlawful intent – the same intent contained in the language the
prosecutor struck from the original indictment at the plea hearing. Amended
Indictment, Clk. R. 7.
12
C. The State Abandoned and Presented No Evidence of Unlawful Intent
– The Evidence is Legally Insufficient.
Mr. Beck argued to the trial court on habeas that, “Neither the State’s
allegation or proof suffices to constitute a criminal offense.” Clk. R. 38. The
State did not refute this claim in any way.
This is a purely legal issue that this Court is capable of adjudicating,
therefore a de novo standard is appropriate. However, based on the
undisputed state of the record, even under an abuse of discretion standard,
the trial court erred. Despite calling the trial court’s attention to the failure of
an allegation or any proof whatsoever as to Mr. Beck’s unlawful intent, and
the statute’s requirement for Mr. Beck to have had such intent for conviction,
the trial court refused to reconsider and withdraw its Findings and
Conclusions denying habeas relief. On this record, no rational finder of fact
could find that Mr. Beck acted with unlawful intent and the evidence is
legally insufficient.
D. Conclusion.
The trial court committed reversible error when it denied relief on Mr.
Beck’s Application for a Writ of Habeas Corpus. This Honorable Court
13
should reverse and enter an appellate acquittal because the evidence is legally
insufficient.
ISSUE TWO
THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
BECAUSE THE STATUTE UPON WHICH THIS
CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
A NULLITY AB INITIO.
STATEMENT OF FACTS PERTINENT TO ISSUE TWO
Mr. Beck specifically challenged the trial court’s Conclusions of Law,
which stated that despite the Court of Criminal Appeals’ invalidation of the
Online Solicitation statute subsection at issue in this case, the subsection was
still valid with regard to Section 21.12 prosecutions and that the conviction in
this case was not affected by Lo. Objections at Clk. R. 36-38. The trial court
did not withdraw its Order denying relief.
ARGUMENT AND AUTHORITIES IN SUPPORT OF ISSUE TWO
A. Standard of Review.
As stated above, when issues of law as opposed to fact determine the
resolution of a case, this Court reviews the case de novo. Ex parte Hollowell,
supra.
14
B. The Instant Conviction Relies Exclusively on the Violation of an
Invalid Statute; Therefore, the Trial Court Erred in Denying Habeas
Relief.
As of the date of this filing, there still are no Texas opinions analyzing
the legal relationship between the invalid Online Solicitation statute
subsection and the offense of conviction in this case, the Improper
Relationship Between Educator and Student statute. However, logic dictates
that because the conviction in this case relies exclusively on an invalid statute,
the conviction cannot stand. As a pure legal matter, this Court should review
this issue de novo and find that the trial court erred in denying relief.
1. Section 33.021(b) is Unconstitutional.
In October 2013, the Texas Court of Criminal Appeals (CCA) held that
Section 33.021(b) of the Online Solicitation statute (which is the section
prohibiting the sending of sexually explicit messages) is unconstitutional. Ex
parte Lo, supra. The Court found that the statute infringed on citizens’ First
Amendment rights. Id. Interestingly, Mr. Lo also was a teacher who was
accused of sending sexually explicit messages to a student. See Lo indictment
and news article at Appellant’s Exhibit A.7 The CCA reversed the decision of
7
The Clerk’s Record filed in this case contains the Application for Writ of
Habeas Corpus that Mr. Beck filed; however, it is missing the Exhibits to that document.
15
the intermediate Court of Appeals (which had upheld the conviction) and
remanded the case “to the trial court to dismiss the indictment.” Id. at 27.
Judge Cochran’s concurrence in another case is instructive on the effect
of this invalidation:
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.
Ex Parte Chance, 2014 WL 1796648 (Tex. Crim. App. 2014) (emphasis added,
citations omitted).
She further explained:
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.
Id. (emphasis added, citing Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App.
1988)).
The Lo indictment and article were attached to the Application as Exhibit 3. Counsel has
asked the District Clerk to supplement the record with this exhibit.
16
2. Mr. Beck’s Conviction and Sentence Are Defective and Void.
The CCA has granted relief to other Applicants for writs of habeas
corpus who were convicted of violating the now-unconstitutional statute. See,
e.g., Ex Parte Chance, supra. Significantly, in Chance, Justice Cochran stated in
her concurring opinion that a person may “always obtain relief” from a
conviction based on a penal statute that is declared unconstitutional based on
the “void ab initio” concept. This means 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.’” Id. at 2, citing, inter
alia, Reyes–Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001). She
further states that an unconstitutional statute is “void for all comers.” Id.
This includes those who have been convicted of violating the statute before
it was declared void, like Mr. Beck:
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
[33.021(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.
Id. at 3.
17
The CCA also granted relief in other cases involving convictions under
Section 33.021(b), including those involving guilty pleas at trial without a
challenge to the statute at trial or on appeal. Ex Parte Williams, 2014 WL
2527787 (Tex. Crim. App. 2014) (not designated for publication); Ex Parte
Cooper, 2014 WL 1871722 (Tex. Crim. App. 2014) (not designated for
publication); Ex Parte Downs, 2014 WL 2609723 (Tex. Crim. App. 2014) (not
designated for publication); see also, Freeman v. State, 425 S.W.3d 289 (Tex.
Crim. App. 2014) (noting that the lower court denied relief prior to Ex Parte
Lo; PDR granted and case remanded “for further action in light of our opinion
in Ex Parte Lo.”; on remand, conviction reversed and remanded for
dismissal8).
Other Courts of Appeal around the State also have issued decisions
following Lo and reversing convictions under Section 33.021(b). Sanders v.
State, 2014 WL 887781 (Tex. App. – Texarkana 2014); Schuster v. State, 435
S.W.3d 362 (Tex. App. – Houston [1st Dist.] 2014); Ex Parte Zavala, 421 S.W.3d
227 (Tex. App. – San Antonio 2013).
8
Freeman v. State, No. 05-12-00923-CR, 2014 WL 6602691 (Tex. App. Nov. 21,
2014).
18
Therefore, given the factual similarity and legal outcome of Ex Parte Lo,
and subsequent cases decided by the CCA and other Texas intermediate
appellate courts in light of the Lo decision, Mr. Beck submits that his
conviction and sentence are defective and void. As many courts have stated,
unconstitutional statutes are void from their inception, and Mr. Beck cannot
be punished based on his conviction for violating a provision of a statute
(Improper Relationship) that relies exclusively on a void statute (Online
Solicitation subparagraph (b)) for liability. In fact, he is actually innocent. Ex
Parte Chance, supra. Therefore, this Court may enter an acquittal. Ravenbark
v. State, 942 S.W.2d 711 (Tex. App. – Houston [14th Dist.] 1997, no pet.)
(holding on direct appeal “from a conviction under a void statute, we hold the
judgment is void. The judgment is reversed and a judgment of acquittal is
rendered.”).9
C. Conclusion.
The trial court committed reversible error when it denied relief on Mr.
Beck’s Application for a Writ of Habeas Corpus. This Honorable Court
9
Mr. Beck acknowledges that Lo and its progeny remand for dismissal of the
indictment.
19
DJl LOG NUMBER.-1594515
02471S1S CJIS TRACKING NO.-9W4971430-A001
JOHNCHRISTOPHER LO SPN:
200WELLINGTON #5308 BY: RZ DA NO: 001901698
SOB: AM 06-24-1560 AGENCYrHFD
MNGWOOD,TX DATEPREPARED: 1/5K201O O/RNO: 161163409H
ARREST DATE*01-05-2009
NaC CODE-369911F3 RELATEDCASES:
FEWNY CHARGE: ONLINE SOLICITATION OF AMINOR
HARRIS COUNTY DISTRICT COURTNO: 1246900
BAIL:$5000 J^*
FIRST SETTING DATE* PRIOR CASsHjO:
248
IN THE NAME ANDBYAUTHORITYOF THE STATE OF TEXAS: "7F
JOHNCmUSTOFHmiX>,henate^ ',Texas, dial inHams County, Texas,
tfctotofflTOiadfinit^^ _ 31,2009, did men and tfcercunlawfully, with
inasexuallyexplicit maimervnQi FOREST
^Lj^m^v~l ^bom**» Defendantbelievedto be ymmgerrfwnffffVffnfffnyrai^1 BYTEXTMESSAG^iari&eDefendantwas at
&
^
A
x
rf>
«•
AGAINSTTHE PEACE AND DIGNITY OF THE STATE.
FOREMAN OFTHE GRAND JURY
INDICTMENT
Appellant's Exhibit A Exhibit 3
html
.A teacher, sexting and the right to free speech
Posted Tuesday, Feb. 25,2014
BY MITCH MITCHELL
mltchmitchell@star-telegram.com
He was 30 and she was 13— a teacher and his student— but their relationship went far beyond the classroom, authorities say.
In six days in October 2012, they sent 688 text messages to each other, and the conversation became sexual, according toanarrest
warrant affidavit.
The messages —known as "sexting" —included descriptions of sexual preferences and fantasies and discussions of dreams about each
other, the affidavit says.
Sean Arlis Williams, now 31, who was a junior high school teacher inthe Everman district, was eventually arrested on a charge ofonline
solicitation ofa minor, which was later changed to improper relationship between an educator and student.
But this month, based ona recent appeals court ruling dealing with a similar case in Harris County, Tarrant County prosecutors dismissed
his case.
The Texas Court ofCriminal Appeals ruled inOctober thata 2005 statute, which made sexually explicit online communication between an
adult and minor illegal, violates the First Amendment right to free speech. The court examined the case ofJohn Christopher Lo, who was
arrested in2010 after being accused ofsending sexually explicit text messages to a student he met while working as a choir director in a
school district outside Houston.
'It's OK foradults to talk dirty to children," said Mark Bennett, the Houston attorney who defended Lo.
Bennett had argued that thestatute is too broad because "simple profanity orvulgarity —not rising to the level ofobscenity — is
constitutionally protected speech."
Lawyers for the statecontended that without the law "perverts will befree to bombard our children with salacious emails and text
messages."
The court's opinion said sexualexpression that is indecent but notobscene is protected bythe First Amendment, and includes sexually
explicit literature suchas 50Shades ofGrey and Lady Chatterle/s Lover, as wellas Miley Cyrus' "twerking" during the 2013 MTV Video
Music Awards.
Jurisprudence experts say the ruling, depending on the appellate process, could throw other cases into a legal black hole and could force
state legislators to rewrite the law.
Bennettsaid that in the meantime, prosecutors should contact those convicted under the 2005 statute and tell them they havean avenue
for redress, Bennett said.
"I believe they havea duty to go back and set things right," Bennett said.
Tarrant County prosecutors dismissed their case against Williams on Feb. 10.
The recent opinion by the Texas Court of Criminal Appeals has certainlycaused us to re-examine a handful of cases and, where
appropriate, seek to re-indict them under... online solicitation ofa minor," said Melody McDonald, spokeswoman forthe Tarrant County
districtattorney's office. "In this particular case, however, the facts didn'tfit that statute and that wasn't an option."
Attempts to contact Williams were unsuccessful. His attorney, Jim Shaw, said the statute is clearly unconstitutional.
"it's (ike having a 16-year-old talking to a 20-year-old and although 16-year-olds aren't naive I guess state lawmakers figured they need
protection,"Shaw said.
Used 'bad judgment'
The student, identified in court documents by the pseudonym Mary Swan, had two classes with Williams at Baxter Junior High, which is
located in Fort Worth and is governed by the Everman school district.
Afterschool officials found that Williams had been sending the text messages to the student, they called the .enforcement authorities and
Appellant's Exhibit A
contacted her mother.
The mother contacted Fort Worth police, who interviewed the student. The student told police that she had exchanged phone numbers and
began texting with Williams on Oct. 2, 2012. The messages became sexual, shesaid, and shetold detectives that he had asked her not
to tellanyone about theirconversations, according to the arrestwarrant affidavit.
The text messages included "talking about if either ofthem walked around naked in their homes, keeping the relationship secret until the
victim graduates, dreams that each of them had about each other, virginity and showing restraint while they are in the classroom," the
affidavit says.
Photographs were exchanged, Including one ofthe student wearing a bra with no shirt.
In November 2012, police interviewed Williams, who said that he had used "bad judgment" in sending the messages and that he knew she
was a minor. He said he had not touched the student or met with her alone, according to the affidavit.
He was arrested Jan. 18,2013, on acharge of online solicitation of aminor and was booked into jail on the improper relationship charge
May 20. Hewas released on bail after three days, according to court records.
Still has teaching certificate
Williams, who began working in the Everman district in August 2007, left the district Nov. 30, 201Z District officials declined to discuss the
reasons for Williams' departure or the district's response to the criminal investigation of his behavior.
Williams' teacher certification remains valid until July 2017 for teaching secondary history and social studies classes But Williams*
certrfication is under review by the State Board of Education's Professional Discipline Unit, according to Texas Education Agency records.
There are Instances when ateacher is under acriminal investigation and we suspend our investigation until the criminal investigation plays
out, aTEA spokeswoman said. There also have been instances where aperson might be exonerated in acriminal investigation but his
certificate becomes invalid because ofsomething that comes out during aschool district investigation."
A legislative matter?
Though the case against Williams has been dismissed, amotion for rehearing Lo's case is pending at the appeals court level.
Because the appellate jurists voted JH) to overturn the statute, Bennett, who defended Lo, said he doubts that the petition for arehearinq
will be successful. y
Ifthe Court of Criminal Appeals denies the petition, the state could petition the U.S. Supreme Court.
Alan Curry, chiefofthe appellate division for the Harris County district attorney's office, said his staff is awaiting adecision on the petition
before deciding on the nextstep. fwuuwi
He said the best option may be for state lawmakers to rewrite the law so that it satisfies the courts, "but that's way down the road," Curry
State Rep. Bill Zedler, R-Arlington, said the 2005 statute was originally proposed to keep children from being groomed by sexual predators
&tert? 810 b,OCk *•,3W',aWmakefS ^ ^t0 ^ ^ ^ ^ aU°mey 9enera'and come UP «*"i"* «£w
The purpose ofthe First Amendment was to allow political dissent, not to allow adults to be vulgar with minors," Zedlersaid.
Vague or ambiguous'
Shaw, Williams' attorney, said it would not matter whether an adult sent 2,000 sexually explicit text messages to aminor orjust one
unless the adult« tiying to get the minor to do something illegal, such as ameeting for sex, or is texting something obscene or
pornographic; nonetheless, the state cannot get a conviction using the 2005 statute. . -•
This is not the first time lawmakers in Austin have written a law that did not pass constitutional muster.
"A lot oftimes these statues are vague or ambiguous," Shaw said. "A lot oftimes they fail to say what's illegal."
T^^l^ aPPe,!,ate ^Ty who"orked at *» Fort Worth offi°e ofthe Court of Criminal Appeals, said the court's message is
directed to state lawmakers, saying they need to rewrite the law so that it achie^s its stated purpose ofprotecting minorsSsLng.
"Ourcourts have ruled that limits on free speech are permissible but those limits need to be reasonable," Ruback said. "Iknow lawmakers
S"I7 *"wouw "" better^draftln9 new'egls,aUon that Appellant's
ls more —•*«—and
Exhibit™*™*TcT
A ,