2015.86: Texas First Amendment Update

In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn’t had a lot of hope for the actual-innocence claim—I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn’t have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute—some of the speech punished under Section 33.021(b) was not constitutionally protected.

And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.

I expect that Yeary’s argument will resurface when we kill other void penal statutes. Until it is definitively rejected by the court, it highlights the importance of lawyers making First Amendment challenges pretrial, getting trial-court rulings in every case.

Speaking of other void penal statutes, here are some of the challenges we have going:

  • Texas Penal Code Section 33.021—the balance of the online-solicitation statute (pre-9/15), which forbids fantasy solicitation and solicitation of people whom the defendant knows not to be children. I had high hopes for the First Court of Appeals in Wheeler; those hopes were dashed when the court essentially reissued its Maloney opinion with Lo dicta added in. I’ve filed a petition for discretionary review with the Court of Criminal Appeals. If the court refuses discretionary review, I have several other 33.021 cases in the appellate pipeline, in the 3rd, 7th, 9th, 10th, and 11th Courts of Appeals. Neither Maloney nor Wheeler is binding precedent in those courts, so they may be more receptive than the First was to applying the correct presumption, of unconstitutionality, to this content-based restriction on speech.
  • Texas Penal Code Section 33.07—the online-impersonation statute, which forbids using someone’s name online without consent but with intent to harm them. The 208th District Court court in Ex Parte Stubbs agreed with us that the statute is unconstitutional, the State’s appeal is pending in the 14th Court of Appeals. Toby Shook and I have a case pending in Dallas County as well. The State had dismissed two other Online Impersonation prosecutions in the face of constitutional challenges; they committed to defending the statute on appeal in Stubbs before Judge McSpadden granted relief.
  • Texas Penal Code Section 32.51—the fraudulent-use-of-identifying-information statute, which forbids using someone’s name (or anything else about them) without consent but with intent to harm them. This is going to be a big one. I have cases pending in trial courts in Galveston, Harris, Fort Bend, Lubbock, Denton, McLennan, Montgomery, and Wharton Counties. I had briefed the issue, but the State dismissed the indictment the day their brief was due.
  • Texas Penal Code Section 42.01(a)(8)—disorderly conduct by exhibiting a firearm in a manner calculated to alarm. The State dismissed this case as well.
  • Texas Penal Code Section 21.15—improper photography. The Court of Criminal Appeals held half of this statute unconstitutional last year; we’re going after the other half, which forbids taking or broadcasting bathroom or dressing-room images with the intent to invade the privacy of the complainant or arouse or gratify the sexual desire of any person. My appeal is pending in the Fourteenth Court of Appeals; the State’s brief is due November 18th.

When the State starts prosecuting people under Section 21.16 of the Texas Penal Code—Unlawful Disclosure or Promotion of Intimate Visual Material, Texas’s new revenge-porn statute, effective September 1, 2015—I’m sure Texas lawyers will keep me in that loop as well.

3 Comments

  1. Hi Mr. Bennett,

    Curious to know if there is any new information in regards to your private dance statue 33.021(c). Unfortunately my son took a plea so we cannot join the fight. However we look forward to the day we’re able to contact you in hopes that you are willing and able assist with putting an end to this horrific nightmare and remove the charge from his record….this of course will be after you win your long drawn-out battle.

    Many thanks for all your efforts this far!

    1. Kristen,

      I hope your son overcomes this challenge both in the courtroom and more importantly, in his mind. I was convicted of 33.021(b) in 2010 … spent 2 years in prison … was paroled and filed successfully for habeas corpus relief in 2014, 2 months short of completing my sentence. Soon after, I paid for a legitimate criminal background check and was pleased to see a clean record. I could finally get back to my life … or so I thought. This is the 21st century … and public records remain available through search engines and other sites … for the ages. I’m thankful for where I am right now … my wife, family and friends have stood by me through the entire ordeal. No, I won’t be winning any father-of-the-year awards … but … I can truly say that I’m a better person today than I was eight years ago. I did struggle with pornography and chat rooms for years and I’m very thankful to have moved past that darkness in my life. And while my spiritual life has fared well, my professional life is non-existent. I was with a major company for 22 years before being let go due to my arrest … as a professional IT worker, I’m unemployable. While my background check is clean, recruiters rely on quick checks through “people search engines” (e.g., spokeo). It’s not technically legal to use this information but it is what it is.
      All this just to encourage your son to not get too caught up in erasing the past but instead, move forward as a better person. The work Mark Bennett has done is wonderful … not so much in getting convictions overturned … but more so by bringing attention to the far reaching effects of “vague laws” and the people that enforce those laws. Again, I’m thankful my name and photo aren’t being passed around to neighbors telling them to lock their children in their rooms at night … or having the big red sticker attached to my front door once a month telling me a sheriff is coming to visit … or attending some court-ordered bizarre “counselling” sessions that attempted to warp my mind even more.
      Hopefully Mark will be successful in his fight … and hopefully your son will receive some relief.

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