Karenev Starts to Crumble

Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals’ decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev—a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: “the rationale for the Karenev rule—the presumption that a statute is constitutional—does not apply to this case.” Because Section 33.021(b) had been held unconstitutional before Mr. Schuster’s appeal, Mr. Schuster could raise the unconstitutionality on appeal.

The Court of Criminal Appeals invented its fundamental holding in Karenev—that the right to challenge the constitutionality of a statute could be forfeited—from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenev‘s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception—the best they could do with stare decisis.

But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content—statutes like Texas’s improper-photography statute, its online-impersonation statute, and the balance of Texas’s online-solicitation statute.

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Sacred Duty [Updated]

I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I’ve tried have almost universally been happy afterwards. Clients whose cases I’ve pled are often unhappy afterwards.

The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system’s default condition) by the lack of a meaningful plea offer, and—if he loses—didn’t get the result he hoped for.

So why is the trial client happier than the plea client?

I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.

Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don’t fight. Not, at least, in any way that the client can see.

But this thing for which our clients thank us, win or lose—showing them that there is someone who will fight for them when they cannot fight for themselves—is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.

[Update: Pope Francis has reminded me that part of this sacred duty—and surely a reason that the client is grateful for the fight—is that we fight for those who have done wrong.]

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Moron Dallas Lawyer Everett Newton [Updated]

A caller today said, “I heard that you got part of the Online Solicitation of a Minor statute held unconstitutional, but I know that decision doesn’t apply to distributing sexually explicit material to minors.” I asked him where he got that idea, and he pointed me to this on Dallas lawyer Everett Newton’s website:

Notably, two other sections of the online solicitation of a minor statute remain good law, and outline conduct for which you can still be lawfully prosecuted.  Hence, under this statute, you can still be charged with online solicitation of a minor for either: 1)distributing sexually explicit material to a minor, OR 2)soliciting a minor online to meet for sex.

It’s ignorant twaddle. “Distributing sexually explicit material to a minor” is protected speech; it falls under the portion of the statute that the Court of Criminal Appeals held unconstitutional.

Truth is, of course, that Everett probably didn’t write the ignorant twaddle that has his name on it. The author confuses the Texas Court of Criminal Appeals (which held the Online Solicitation statute unconstitutional) with the Texas Supreme Court (which did not). This is not a mistake that a Texas lawyer is likely to make. So either Everett is even more cretinous than he looks…


…or he has outsourced his marketing, allowing someone else to publish blog posts under his name. The former is hard to imagine, so my bet is that Everett has outsourced his marketing. Which means that he gets held responsible for the substance—the content published on his behalf (outsource your marketing, outsource your reputation)—as well as for the procedure—the choice to pay someone even more moronic than him to publish stuff on his behalf.

To advertise himself, Everett Newton gives bad advice. That makes me unhappy.

So here you go, Everett. Reap what you sow.

[Update12 June. Everett Newton writes:

Hi Mark,

Thanks for pointing out the error in my blog post.  I've deleted the "ignorant twaddle" you cite.  Have a nice day, and please let me know if I can ever be of assistance to you here in Dallas.


P.S. And, for the record, I'm far more cretinous than I appear in photographs!


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Five years ago, in February 2009 I filed an application for writ of habeas corpus on behalf of a guy—we’ll call him Mr. Doe—who had been on probation since 2006 for online solicitation of a child under Section 33.021(b) of the Texas Penal Code, the “explicit communication” statute. I hadn’t represented Mr. Doe at trial, and his trial counsel hadn’t argued that the statute was unconstitutional. (This was a Perverted Justice case, which never would be filed today.)

The trial judge denied habeas relief, so I appealed. The Fourteenth Court of Appeals affirmed the denial of habeas relief in July 2010, so I filed a Petition for Discretionary Review with a single ground for review:

The Fourteenth Court of Appeals erred when it held that the constitutionality of a criminal law cannot be first raised on habeas corpus. If a penal statute unconstitutionally criminalizes protected speech, will a conviction under that law stand forever if not objected to at trial?

The Texas Court of Criminal Appeals denied discretionary review. So Mr. Doe was stuck finishing his probation (until 2011), registering as a sex offender (until 2021) and branded as a convicted felon (for life).Or so it appeared.

In September 2010 I filed a pretrial writ of habeas corpus on behalf of a defendant—call him Mr. Roe—who had been charged with, but not convicted of violating 33.021(b). The trial court denied relief, so I appealed to the First Court of Appeals. The First Court of Appeals affirmed, so I filed a petition for discretionary review. The Court of Criminal Appeals granted PDR, heard argument, and in October 2013 reversed the judgment of the First Court of Appeals, holding 33.021(b) unconstitutional.

(Mr. Roe’s was not the first pretrial writ of habeas corpus I had filed attacking 33.021(b). In September 2009 Herb Ritchie, then judge of the 337th District Court, granted relief. The State failed to appeal that ruling.)

Today Mr. Doe got to go back to court on another habeas, again based on the unconstitutionality of Section 33.021(b), conclusively established in Mr. Roe’s case. This time the State agreed to relief, and the trial court—the same judge who had denied relief in 2009—signed an order dismissing Mr. Doe’s case.

Mr. Doe can never get back his five years on probation or the rubbishing of his good name, but with that order, I’ll get him off the sex-offender registry, I’ll get his records expunged—he can deny that he was ever even arrested—and I may recover a portion of the thousands of dollars in fines, fees, and court costs that he had to pay as a result of his conviction for violating a void statute.

The icing on the cake for me? As he was signing the order, the judge said to me, “you can’t say ‘I told you so’ because I didn’t get a chance to rule on this before.”

“Yes you did, judge.

“I told  you so.”

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Mark Sandoval and Christopher Ernest Braughton (Updated)

Emanuel Dominguez’s fiancée, Jessica Cavender—a Marine like Emmanuel—was nowhere near when, according to this account, “Emmanuel Dominguez began backing away with his hands in the air when [Christopher Ernest] Braughton opened fire, shooting him once in the torso.”

Now Christopher Ernest Braughton is charged with murdering Emmanuel Dominguez (Indictment—PDF), and is set for trial August 11, 2014.

So why is Christopher Ernest Braughton suing Jessica Cavender, the fiancée of the Marine he killed, for more than $200,000 (Original Petition—PDF)?

Here are the allegations of the lawsuit:



The Plaintiff was damaged as a result of the actions of the Defendant


Defendant was negligent


Plaintiff, CHRISTOPHER BROUGHTON, was caused to suffer , and to incur the following damages:

  1. Actual Damages
  2. Special Damages.


A lawsuit is supposed to give the defendant notice of the allegations against him. This does not do so. It makes no sense at all until you look at the signature block at the end of the Plaintiff’s Original Petition:


Respectfully submitted,

By: /S/ Mark Sandoval____________ M.T. Sandoval
Texas Bar No. 17624500
P.O. BOX 1187

Tel. (713) 654-1050


I wrote about Sandoval here in 2008 after he filed a lawsuit on behalf of a criminal defendant, Elizabeth Shelton (Elizabeth Shelton Indictment—PDF), against the people whose car she had rear-ended causing the death of her boyfriend, Matthew McNiece. At the time Sandoval represented the family of Mr. McNiece as well. (Sandoval then nonsuited that case. Elizabeth Shelton Nonsuit. This case, Sandoval may not get out of so easily: I’m reliably informed that Cavender will be countersuing for intentional infliction of emotional distress.)

It gets even more interesting: the father of Elizabeth Shelton, Pat Shelton, who used to give Sandoval juvenile appointments when Shelton was a juvenile court judge, is Sandoval’s cocounsel on Christopher Ernest Braughton’s murder case. Cozy.

(Notice that Sandoval misspelled Mr. Braughton’s name—as “Broughton”—when he filed the current lawsuit. It may have been inadvertent, but that way Braughton’s name is less likely to turn up in searches. In 2008 I noted, “Her boyfriend, Matthew McNeice (the Chronicle renders it McNiece, but the District Clerk’s civil records have McNeice), is killed in the crash.” It appears that Sandoval misspelled the McNieces’ name in that civil suit as well. Cute.)

(Update: Sandoval’s lawsuit has been removed to federal court.)

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The State’s Argument in Ex Parte Thompson

Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas’s improper photography statute:

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person….

He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.

Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)

The State argued that it has an interest in protecting people from being nonconsensual objects of sexual desire—a foolish notion. In aid of its argument, the State argued that the “consent” element saves the statute from overbreadth because “consent” is defined broadly enough in Section 1.07(a)(11) of the Penal Code to cover photos taken in public of people’s publicly exposed parts. Everyone who appears in public, the argument went, consents to pictures being taken of those parts of her body that are exposed to the public; the statute is aimed only at upskirt and other surreptitious photographs, and therefore is not overly broad.

(A judicial interpretation narrowing a statute can save it from First Amendment overbreadth. This is based on the legal fiction that people consider Court of Criminal Appeals opinions in deciding how to express themselves. To the contrary, people considering taking photos in public don’t review Court of Criminal Appeals opinions to decide how to frame their photos. If an overbroad statute has a chilling effect, a Court of Criminal Appeals opinion won’t diminish that effect.)

The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.

The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.There are two ways to violate Texas’s Improper Photography statute—by making an image, (photograph or by videotape or other electronic means record) or by sharing an image (broadcast or transmit).
If the Court of Criminal Appeals strikes down the making portion of the statute, the sharing portion falls as well. If, however, the court upholds the making portion in Thompson as the State has urged, the sharing portion is still subject to First Amendment challenge—consent to be photographed is not the same as consent for those photographs to be shared.

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The Grumpy-Cat Rule


From the San Antonio Court of Appeals’ opinion in Ex Parte Thompson (PDF), which is before the Texas Court of Criminal Appeals on discretionary review (and will be argued tomorrow morning by Don Flanary III of San Antonio and Eugene Volokh of L.A.):

[W]e hold the plain language of the subsection 21.15(b)(1) does not “limit” or “restrict” the substantive content of photographs—in other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642. Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates speech in a content-neutral manner, requiring intermediate scrutiny. See id.

Here’s the gist of Texas Penal Code Section 21.15(b)(1):

A person commits an offense if the person photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room….

The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.)

If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000).

With Section 21.15, it is necessary to look at the content of the speech (the photograph): if it contains “a visual image of another,” that is, a picture of a person, it can infringe the statute; if it does not contain a picture of a person, it cannot.

For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.


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Harris County Criminal-Defense Residency

From Scott Ehlers at the Harris County Public Defender’s Office:

The Harris County Public Defender’s Office received a grant from the Department of Justice to establish the Future Appointed Counsel Training Program (FACT) for new lawyers committed to representing indigent defendants in Harris County.

The training includes a 14-day “boot camp” this summer , and 2 weekend follow-up trainings next year, all provided by Gideon’s Promise (online at: http://gideonspromise.org). The grant covers expenses for travel, lodging, meals, the 14-day “boot camp,” and the 2 follow-up trainings in Atlanta. There will also be a 2-day training on Harris County courts and Texas law, and a year of mentoring to be provided by top notch criminal defense lawyers, who will be paid for their time. There are 3 additional weekend trainings in Atlanta in 2016-2017. For those, training, lodging, and meals are paid for, but participants will be responsible for travel-related expenses.

Last year we selected the first class of FACT participants and mentors. This year we will be accepting the second class of 10 lawyers, licensed for 0-3 years. Students who graduate this May and take the bar this summer are eligible to apply.

A copy of the application is online here: http://harriscountypublicdefender.org/FACT-ReqforAppsForm-v2-2014.pdf. The deadline is March 31.

Please feel free to pass this along to any new lawyers or graduating law students who you believe will be good candidates.


Scott Ehlers
Legal and Policy Analyst
Harris County Public Defender’s Office

From Sarah “Bennett’s Brain” Wood, also at the PD’s Office:

Are you a fighter? Do you want to help the poor people who are chewed up and spit out every day in 1201 Franklin?
Apply now for the Future Appointed Counsel Training (FACT) Program – a unique, year-long education in criminal defense that aims to set 10 awesome new lawyers on the path to a career in indigent defense.
It will change your life.
Through a highly competitive application process, you can get:
GIDEON’S PROMISE (featured on HBO http://www.hbo.com/documentaries/gideons-army#/ ) - probably the most innovative criminal defense skills training in the country. Last year we sent 10 strangers to their two-week boot camp and they returned as friends for life – a team committed to changing our system.
You also get access to a group of awesome local mentors, a private listserv, regular meetings, and local trainings.
I know from experience that it is nearly impossible to break into the scene as a youngster. You have to want it bad. The FACT Program aims to take 10 lucky newbies and train the hell out of them to be savvy, confident defenders of the poor. And make them eligible for appointment.
This is your residency in defense. Your foot in the door. And our investment in the future.
Deadline is next Monday. Email me with questions.

I am one of the ten mentors this year. The program is everything that Scott and Sarah say, and more. The program, and the ten passionate young lawyers participating, give me some hope for the future of criminal defense in a world that is otherwise pretty bleak.

If you are taking the bar this summer, or if you are licensed 0–3 years, apply.

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