[Update: the below is a nightmare. It is not how things are, much less how things have to be. I've identified four ways a good lawyer might make the nightmare end; I'm sure I'll think of others as I litigate these cases. Your takeaway from this post should not be that there is no hope, but rather that the relief that people convicted of 33.021(b) should—morally, ethically, common-sensibly—get it is by no means a sure thing.]
Dave was convicted in Houston five weeks ago of online solicitation of a minor by communication under Section 33.021(b) of the Texas Penal Code—the “talking dirty to a minor” statute—and sentenced to ten years in prison.
Dave’s trial lawyer, Fred, didn’t argue in the trial court that Section 33.021(b) was unconstitutional because that was a crazy idea.
Dave is sitting in prison.
Dave’s appellate lawyer, Al reads the case in which the Texas Court of Criminal Appeals held Section 33.021(b) unconstitutional. “Eureka,” says Al. He files a brief with a single point of error:
Dave’s conviction must be reversed because the statute under which he was prosecuted, Texas Penal Code Section 33.021(b), is unconstitutional.
He cites a single Court of Criminal Appeals case:
We conclude that Section 33.021(b) of the Texas Penal Code is overbroad 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.
The State files a brief. It also cites a single Texas Court of Criminal Appeals case, Karenev v. State:
[A] defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.
Since Dave’s trial lawyer didn’t raise it at trial, Dave loses in the court of appeals, which must follow Karenev.
Then Dave loses in the Court of Criminal Appeals because the court follows its own decisions generally, and besides three of the four judges who concurred (rather than joining in the majority’s reasoning) in Karenev have retired and been replaced by authoritarian stooges.1
Dave has been in prison for three years now for something that wasn’t a crime. Dave’s family has spent over a hundred thousand dollars on legal fees. Al files a petition for writ of certiorari with the United States Supreme Court. The Supreme Court is very busy. It denies certiorari. Al drinks himself to death.
But Dave is not done yet. Dave hears in prison about an 11.07 writ—a postconviction writ under Article 11.07 of the Texas Code of Criminal Procedure on behalf of a person sentenced to prison. His family hires Wilma to file the 11.07.
Wilma files the 11.07 as soon as the appeal is final, so that Dave’s time for filing a federal writ of habeas corpus (one year from the end of the direct appeal, less any time when the 11.07 is active) is preserved.
Wilma alleges in the writ that Dave’s conviction is void because the statute is void. But she knows about Ex Parte Jennings, in which the Fourteenth Court of Appeals held that, because the right to challenge the facial unconstitutionality of a statute was forfeitable, such a challenge cannot be raised for the first time on habeas.
So Wilma alleges, alternatively, that Fred was ineffective in forfeiting the right to challenge the facial unconstitutionality of the statute.
The 11.07 writ will be decided by the Texas Court of Criminal Appeals, but the trial court conducts hearings and makes recommendations.
The trial court recommends denying relief on the first claim (that the conviction is void because the statute is void) based on Jennings.
On the second claim, because of potential malpractice liability, Fred—concerned about his honor and his wallet—perjures to some bullshit strategic reason for not arguing that the statute was unconstitutional: “I thought about making that argument, but I discussed it with the client and we decided that it wasn’t worth the State withdrawing its generous plea offer.”
So the trial court recommends denying relief on the second claim as well.
The Court of Criminal Appeals denies relief.2
So Texas’s courts effectively tell Dave, “You were convicted of an unconstitutional statute. It should never have been the law. Serve your time, then get out and register as a sex offender for ten years. Live with it.”
Here’s the first place this nightmare could end: the Court of Criminal Appeals could realize that Karenev is a monstrosity, and overrule it. Assume that it does not. ↩
Here is the second chance for this nightmare to end: The Court of Criminal Appeals could a) overrule Jennings and find that Karenev does not apply to habeas; b) find that Karenev does not apply to cases in which the unconstitutionality of the statute is already the law; or c) find Fred’s explanation for his failure to raise the claim insufficient. ↩