## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N O S . P D
- 1 7 9 0
- 1 3 , P D
- 1 7 9 1
- 1 3 , P D
- 1 7 9 2
- 1 3 , P D
- 1 7 9 3
- 1 3

F R E D R I C H E E D O U G L A S S M I T H , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S A N D S T A T E ’ S P E T I T I O N S F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E F O U R T E E N T H C O U R T O F A P P E A L S

H A R R I S C O U N T Y

J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , A L C A L Á , R IC H A R D S O N , a n d N E W E L L , J J . , j o i n e d . K E L L E R , P . J . , f i l e d a c o n c u r r i n g a n d d i s s e n t i n g o p i n i o n . Y E A R Y , J . , f

i l e d a c o n c u r r i n g a n d d i s s e n t i n g o p i n i o n i n w h i c h K E A S L E R a n d H E R V E Y , J J . , j o i n e d . O P I N I O N
A jury convicted appellant of possession of child pornog raphy , two counts of sexual assault of a c hild, and online solicitation of a minor and sente nced him to s erve three y ear s’ incar cer ation for eac h count of sexual assault and eight y ear s’ incar cer ation for the possession and solicitation

counts. Bo t h eight-y ear sentenc es wer e suspended, and all of the sentenc es wer e order ed to be

serve d concur

rently

. Appellan t appea led, and the court of appea ls ref ormed the trial court’s2

judgme nts to delete the specific amount of assessed costs and aff irmed the judgme nts as ref ormed. Smith v. State , Nos. 14-11-00838- CR, 14-11-00839- CR, 14-11-00840- CR, 14-11-00841- CR, 2013
Tex. App. L EXI S 15273 (Tex. App.–Houston [14 Dist.] Dec

. 19, 2013) (mem. op., not desig nated t h for publica tion).
F acts Appellant was char g ed with offe nses al leg ed to have occur red in 2008 when the named complainant was fourtee n y ear s old and appellant was twenty -two. Appellant was an instructor for

a life-g uarding class at a club swimming pool wher e the named complainant worke d as a rec eptionist during that summer. The two beca me involved in a romantic rela tionship that involved sex u al

contac t and “se x ting” messag es, some of w hich included nude photos. Court of Appeals O pin ion
On appea l, appellant claimed that trial counsel rende red ineffe ctive assistance of counsel in various manner s and that the amounts assessed ag ainst him as court costs should be deleted from the judgme nts beca

use the cler

k’s rec ord did not contain a bill of costs. The court of appea ls addre ssed the multipl e claims of defic ient perf ormanc e by trial counsel and deter mined that appellant had not demonstrated defic ient perf ormanc e by trial couns el or prejudice and overr uled his claim of
i n ef fe cti ve assistance of counsel. Id. at **4-10. The court of appea ls held that the trial cou rt

corr ectly order ed appellant to pay court costs, but “did err in enter ing a specific dollar amo u n t without any support in the rec ord for t h at dollar amount.” Id. at **11-12. Be cause there was no evidenc e in the rec ord to support the trial court’s assess m ent of a specific dollar amount as court
cost s, the court of appea ls ref ormed the trial court’s judgme nt in eac h case to delete the speci fi c dollar amount of costs assessed. Id. at *12. The court of appea ls acc ording ly aff irmed the judgme nts3

as re formed. Id.
Gr ound s F or Re view Both appellant and the state filed pe titions for discr etionary revie w. We g rante d revie w of those petitions. The state’s pe titions raise two g rounds: The court of appea ls e rre d in holding that the suff iciency of the e vidence justify ing the assessment of court costs should be based on the cler k’s “bill of costs” rathe r than on the statutory

predic ate f

or the a ssessment of such c osts. The court of appeals erre d i n fa i l i n g to ref orm the j udg ment to adjudg e the corr ect assessment of c ourt costs as manda ted by the re levant statutes. Appellant’s pe titions raise a single g round:
Mr. Smit h’s conviction under Texas Penal Code Section 33.021(b) is void be cause the court of criminal appea ls held this statutory subsection fac ially unconstitutional. Appellan t’s P etitions
I n this Court, appellant challeng es only the conviction for o n l i n e s olicitation of a minor. Although we g rante d revie w of all four of appellant’ s petitions, only one of those petitions, number PD-1793-13, addre sses that conviction. Appellant’s other three petitions corr espond to the court of
appea ls’s and trial cour t ’s j u d gm ents for his other three convictions. There fore , we dismiss 1 appellant’ s other petitions, numbers PD-1790-13, PD-1791-13, and PD-1792-13, as improvidently
g rante d. Appellant arg ues that, beca use of this Court’s ruling in Ex parte Lo that Texas Penal Code 2

A p p e l l a n t ’ s p e t i t i o n f

o r d i s c r e t i o n a r y r e v i e w w a s f i l e d a s a s i n g l e d o c u m e n t w i t h a h e a d i n g t h a t l i s t e d e a c h 1
o f t h e f o u r c o u r t

- o f

- a p p e a l s c a u s e n u m b e r s t h a t a r e a t t a c h e d t o t h e a p p e a l e d c o n v i c t i o n s
. T h i s C o u r t d o c k e t e d e a c h o f t h e f o u r p e t i t i o n s w i t h a s e p a r a t e n u m b e r
. T h e c o u r t o f a p p e a l s ’ s o p i n i o n d i s p o s e d o f a l l f o u r a p p e a l e d c a s e s i n a s i n g l e o p i n i o n t h a t l i s t e d t h e f o u r s e p a r a t e c a u s e n u m b e r s b e c a u s e a p p e l l a n t ’ s c o m p l a i n t s o n d i r e c t a p p e a l a p p l i e d t o a l l f o u r c o n v i c t i o n s
.

4 2 4 S

. W

. 3 d 1 0 ( T e x . C r i m
. A p p
. 2 0 1 3 )

. 24

section 33.021(b) is unconstitutional, his conviction under that statute is void. Appellant ackn o wl edg es that he did not raise this claim on appea l, but points out that Lo “wa s decide d four months a fter [he] filed his br ief,” and conte nds that his failure to objec t to the constituti onality of 3
this statute at the t ri al -c o u rt level is irrele vant beca use an “unconstitutional and void law may be attacke d reg ardle ss of whether the complaining party objec t ed at t h e trial or appellate stag e.” Appellant’s B r. 8. Appellant rea sons that, beca use in Ex parte Lo this Court h as al re ady held that Section 33.021(b) is fac ially unconstitutiona l fo r over- brea dth and “[b] eca use an unconstitutionally overbr oad law is a void, nonexis tent law, [he] has not forf eited his r ight to obje ct to his conviction under that statutory subsection.” He also contends that, beca use Section 33.021(b) has been found 4

to be fac ial ly unconstitutional, courts should view it void ab initio and that his conviction under Section 33.021(b) is there fore void. He further asser ts that reve rsal of a conviction based on a void

statute is a sy stemic require ment and a rig ht that cannot be waived. He cites Marin v. State for the 5 proposition that some rig hts are so fundame ntal to the fair opera tion of the criminal-justice sy stem that they cannot b e fo rf

ei t ed by inaction or failure to asser t them. He also contends that absolute require ments are sy stemic require ments that addre ss the court’s jurisdiction and should be addre ssed
reg ardle ss of a pa

rty ’s complaint at the tria l and appe llate stag es. Appellant arg ues that the trial court had no jurisdiction to rende r a j u dg ment on a non-

A p p e l l a n t ’ s B r
. x . A p p e l l a n t ’ s a p p e l l a t e b r i e f w a s f i l e d o n J u n e 2 0 , 2 0 1 3

. T h i s C o u r t d e l i v e r e d i t s o p i n i o n 3 i n L o o n O c t o b e r 3 0 , 2 0 1 3 , a n d i s s u e d m a n d a t e o n A p r i l 1 4 , 2 0 1 4

.

A p p e l l a n t ’ s B r
. 2

. 4

8 5 1 S

. W

. 2 d 2 7 5 , 2 7 8

- 8 1 ( T e x . C r i m
. A p p
. 1 9 9 3 ) ( o v e r r u l e d o n o t h e r g r o u n d s b y C a i n v
. S t a t e , 9 4 7 S

. W

. 2 d 5 2 6 2 , 2 6 4 ( T e x . C r i m
. A p p
. 1 9 9 7 ) )

.5

exis tent offen s e, t h u s h i s conviction on the basis of an unconstitutional statute is a denial of due
proce ss, due course of law, and the Eigh t h Am endment prohibition ag ainst crue l and unusual punishment. 6
The state arg ues that, prior to the decision of the court of appea ls on the online-solicitation

case , appellant never objected to that prosec ution on gr ounds that the statute was unconstituti onal and ar gu es that, there fore , “he cannot raise that challeng e for the first time in a petition for discretionar

y revie w.” State’s Br

. 8. The state contends that, since Lo did not become final until afte r the trial court rende red its judgme nts and the court of appea ls aff irmed the convictions in this case ,

reve rsing those courts based upon Lo would have the eff ect of requiring them to anticipate that the online-solicitation statute would later be held t o b e unconstitutional. I t notes our lang uag e in
Karenev v. State , 281 S.W .3d 428, 434 (Tex. Crim. App. 2009): “The State and the trial court should not be re quired to anticipa te that a statute ma y later be held to be unconstitutional.” The state looks to our opinion in Karenev , in which we conclude d that “a defe ndant may not raise for the first time on appea l a fac ial challeng e to the constitutionalit y of a statute.” Id

. I t asser ts that, based upon that rationale , “appe llant was required to object in order to prese rve the issue for dir ect appea l.” I t also notes our rec og nition of the near ly exclusive list of situations in which a 7 judgme nt can be considered void and that the list does not include a judgme nt resulting from a conviction base d on a fa cially unconstitutional statute. Karenev , 281 S.W .3d at 432, citing Nix v.
State , 65 S.W .3d 664 (Tex. Crim. App. 2001).

A p p e l l a n t a l s o a s s e r t s t h a t a f f i r m i n g t h i s c o n v i c t i o n w i l l v i o l a t e t h e F i r s t A m e n d m e n t a n d t h e S u p r e m a c y 6 C l a u s e
. S t a t e ’ s B r
. 1 0

.

76

The state sug g ests that this Court lacks jurisdiction to rule on “the constitutionalit y issue” beca use the court of appea ls did not decide that issue and, in our discretionar y -re view capa city , we revie w “dec isions” of the courts of appea ls. I t also contends that appellant has an adequate reme dy at law via w rit of habe as cor pus and should be re quired to see k relief throug h such a w rit.
I n an s wer to the state’s claim that we lack jurisdiction to rule on the Lo issue, appellant
arg ues that we may exercise our jurisdiction to corr ect a clea r err or in the name of

judicial eff

iciency

. He notes that, while the court of appea ls did not addre ss the constitutionalit y of Section 33.021(b), its decision aff

irming the conviction under that subsection direc tly conflicts with our decision in Lo

. Appellant cites our lang uag e in Davison v. State , 405 S.W .3d 682, 691-92 (Tex. Crim. App. 2013), which states that, “whe n the proper resolution o f the rema ining issue is clea r, we will sometimes dispose of the c ase in the na me of judicial e conomy .”

Analysis
I n Lo , 424 S.W .3d at 19-20, we specific ally held that Section 33.021(b) is unconstitutionally

over- broad. The state do es not challeng e our prior holding as to the statute’s constitutional defic iency ; it t akes issue only with the proce dural posture in which appellant seeks to apply that holding to his conviction under that statute.
Davison involved a situation in which our reje ction of the lowe r appellate court’s basis for dispositi on g ave rise t o another issue that was necessa ry to the appeal’s dis pos i t i o n but which the appellate court had not alre ady addre ssed. That situation d i ff er s from the fac tual context of this 8

8 D a v i s o n p l e a d g u i l t y t o t h e o f f e n s e o f b u r g l a r y o f a b u i l d i n g , a s t a t e j a i l f e l o n y . I n a w r i t t e n “ G u i l t y P l e a M e m o r a n d u m ” a n d o r a l l y , t h e t r i a l c o u r t a d v i s e d D a v i s o n t h a t a s t a t e - j a i l f e l o n y i s p u n i s h a b l e b y n o t l e s s t h a n 1 8 0 d a y s a n d n o m o r e t h a n t w o y e a r s i n a s t a t e - j a i l f a c i l i t y . B u t D a v i s o n a l s o p l e a d t r u e t o t h r e e f e l o n y e n h a n c e m e n t p a r a g r a p h s , w h i c h i n c r e a s e d t h e a v a i l a b l e p u n i s h m e n t r a n g e t o t h a t o f a s e c o n d

- d e g r e e f e l o n y . S o m e f

o u r m o n t h s a f

t e r a c c e p t i n g t h e a p p e l l a n t 's g u i l t y p l e a , t h e t r i a l c o u r t h e l d a p u n i s h m e n t h e a r i n g a n d i m p o s e d t h e m a x i m u m s e n t e n c e f o r a s e c o n d

d e g r e e f e l o n y . A t n o p o i n t d i d t h e t r i a l c o u r t f o r m a l l y a d m o n i s h D a v i s o n t h a t , a s e n h a n c e d , t h e c h a r g e s a g a i n s t t h e7

case
. Neve rtheless, we conclude that, in aff irming appellant’ s conviction for the online-solicitation offe nse, the c ourt of appe als implicitl y deter mined that there was no constitutional impediment to
prosec uting that offe nse. Acc ording ly , we have deter mined that we have jurisdiction to revie w the

court of appea ls’s decision. And beca use this case involves a conviction under a statutory provision that we have previously deter mined is fac ially unconstitutional, addre ssing the merits of appellant’ s challeng e to his conviction under that very same statutory provision allows us to dispose of the case in the name of j udicial economy if the proper s olution of t he is sue i s clea r. Davison, 4 0 5 S.W .3d
at 691-92.
We have rec og nized t h at “a n unconstitutional statute is void from its inception” and that
“‘w hen a statute is adjudg ed to be unc onstitut ional, it is as if it ha d never been’ ” and that such “an unconstitutional statute is still born[.] ” Rey es v. State , 753 S.W .2d 382, 383 (Tex. Crim. App. 1988) (citing and quoting Ex parte Bock horn , 138 S.W

. 706, 707 (Tex. Crim. App. 1911)). We have also said “that an unconstitutional statute in the criminal are a is to be considere d no statute at all.” Rey es , 753 S.W .2d at 383 (citing Hiett v. United States , 415 F.2d 664, 666 (5 Cir. 1969), cert. denied 397 t h U.S. 936 (1970)).
I n Marin , we r ecog nized that our sy stem contains rules of three distinct kinds: (1) absolute require ment s an d p rohibitions; (2) rig hts of litigants which must be

a p p e l l a n t e x p o s e d h i m t o a r a n g e o f p u n i s h m e n t o f t w o t o t w e n t y y e a r s i n t h e p e n i t e n t i a r y . O n a p p e a l , D a v i s o n a r g u e d t h a t t h e f a i l u r e t o a d m o n i s h h i m w i t h r e s p e c t t o t h e a p p l i c a b l e r a n g e o f p u n i s h m e n t v i o l a t e d t h e s t a t u t e a n d a l s o r e n d e r e d h i s g u i l t y p l e a i n v o l u n t a r y f o r p u r p o s e s o f t h e D u e P r o c e s s C l a u s e o f t h e F o u r t e e n t h A m e n d m e n t t o t h e U n i t e d S t a t e s C o n s t i t u t i o n
. T h e c o u r t o f a p p e a l s h e l d t h a t t h e t r i a l c o u r t e r r e d i n f a i l i n g t o a d m o n i s h D a v i s o n a s r e q u i r e d b y T e x . C o d e C r i m
. P r o c
. a r t i c l e 2 6

. 1 3 ( a ) b e f o r e a c c e p t i n g h i s g u i l t y p l e a a n d t h a t , b e c a u s e t h e s t a t u t o r y a d m o n i s h m e n t i s i n t h e n a t u r e o f a w a i v e r - o n l y r i g h t , t h i s e r r o r c o u l d b e a s s e r t e d f o r t h e f i r s t t i m e o n a p p e a l

. B u t i t a l s o h e l d t h a t t h e e r r o r w a s h a r m l e s s u n d e r T e x a s R u l e o f A p p e l l a t e P r o c e d u r e 4 4

. 2 ( b ) , t h e s t a n d a r d f o r n o n - c o n s t i t u t i o n a l e r r o r s
. T h e c o u r t o f a p p e a l s d e c l i n e d t o r e a c h t h e m e r i t s o f D a v i s o n ’ s c o n s t i t u t i o n a l c l a i m b e c a u s e , u n l i k e t h e a p p e l l a n t ’ s s t a t u t o r y c l a i m , h i s c o n s t i t u t i o n a l c l a i m w a s s u b j e c t t o p r o c e d u r a l d e f a u l t a n d w a s f

o r f e i t e d b y h i s f a i l u r e t o r a i s e i t i n t h e t r i a l c o u r t a n d , e v e n i f p r o p e r l y p r e s e r v e d , a n y c o n s t i t u t i o n a l e r r o r w a s h a r m l e s s
.8

implemented by the sy stem unless expressly waived; and (3) rig hts of litigants which are to be implemented upon re quest.
Marin , 851 S.W .2d at 279. A ca teg ory -one “absolute re quirement a nd prohibition” rig ht includes the rig ht to be fre e from the enfor ceme nt of a statute that has been decla red unconstitutional and void. Id. “F or example, this Court has held that nonjurisdictional principles of du e p ro ce s s and
separ ation of power s are such as to rende r void from its inception conflicting leg islation.” Id., citing Rose v. State , 752 S.W .2d 529, 552-553 (Te x . Crim. App. 1988) (opinion on rehe aring ). I n Rose ,

we e x plained that it did not matter that the defe ndant had failed to obje ct to the parole -law section of the jury char g e beca

use we had previously held that portion unconstitutional as a violation of the doctrine of separ ation of power s. Rose , 752 S.W .2d at 553. Thus, one conseque nce of decla ring a penal statute unconstitutional and void is to put a conviction pursuant to that statute into the Marin
“categ ory one”—a

n absolute rig ht or leg al re q u i re m ent that is so fundame ntal that it cannot be forf eited or w aived by

those complaining there afte r. As the state notes, in Karenev we held that a defe ndant could not raise a fac ial challeng e to
t h e co nstitut ionality of a statute for the first time on appea l. But the situation in that case i s 9 distinguishable f

rom the pre sent one in appe llant’s case
. I n Karenev , the defendant wa s attacking

a valid statute that had not y et been decla red void. I n the prese nt case , appellant is seeking relief for a convic tion of a non-c rime under a statute that ha s alrea dy been he ld to be invalid.
We offe r an example. Suppose a juvenile, who had been convicted of capital murder in 2004

an d s en t en ced to death, complained for the first time on appea l that our death-pena lty statute was unconstitutional beca

use it permitted the execution of juveniles. I n 2004, we would have summarily

2 8 1 S

. W

. 3 d a t 4 3 4

. 99

reje cted any such complaint beca use the defe ndant did not object at trial. But in 2005, the Supreme
Court held that the E i gh t h Am endment bars the execution of juveniles, even when they commit murder. Roper v. Simmons , 543 U.S. 551 (2005). Once the Supreme Court had spoken, that same defe ndant, whose claim we had summarily reje cted in 2004, wo u l d b e entitled to relief from his death se ntence in a habe as applica tion or, if his direc t appea l wer e st ill pending, on dire ct appe al.
S ee , e.g., Garza v. State , 435 S.W .3d 258 (Tex. Crim. App. 2014) (dete rmining propri et y o f addre ssing merits of unobjected- to constitutional challeng e to statute requiring life-without-pa role

sentenc e for

juvenile ca

pital murdere r). The distinction is that a Marin “cat eg ory one” rig ht, which is not subject to forf eiture or waiver by the fa ilure to object, is a right t hat was rec og nized as fundamental before the defe ndant made his prese nt claim. Any defe ndant, convicted or not, may obtain relief from a conviction under

a statute that h as al re ad y b een held void. I mag ine that the Supreme Court holding that the constitution does not permit the ex ecution of juve niles was interpr eted by trial courts to not apply

to juveniles who wer e tr i ed b ef o re the Simmons decision and who did not object at trial, thus permitting those juveniles to be executed. Such a rule would be both a fundame ntal miscarr iag e of justice and a rule that the Supreme Court, Americ an society , and this Court would not acc ept. That is what Marin “categ ory

one” r ights re prese nt–a bulwar k ag ainst the miscarr iag e of justice. Appellant is entitled to relief

. Be cause we have previously held that Section 33.021(b) is fac ially unconstitutional, there is no valid law upon which to base the conviction that appellant challeng es in petition number PD-1793-13. See McFarlin v. State , 123 S.W

. 133 (Tex. Crim. App. 1909) (“The law upon which this prosec ution is predic ated was held by this court unconstitutional.
See Ex parte Frank A. Smythe , [56 Tex. Crim. 375;] 120 S.W

. 200[; 1909 Tex. Crim. App. L EXI S10

262]. There being no valid law upon which to predic ate a prosec ution, the judgme nt is reve rsed, and the prosec ution or dere d dismiss ed.”) Be cause it is fac ially unconstitutional, it was “stillborn” and void ab ini t i o
. S

ee R ey es , 753 S.W .2d at 383. Acc ording ly , we sustain appellant’ s g round for revie w in petition number PD-1793-13, reve rse the judgme nt o f the court of appea ls in its case

n u mb e r 1 4

- 11-00841-CR, and rende r a judgme nt of acquittal for the online-solicitati o n o f f e n s e b a s e d on Section 33.021(b). See Ex parte Chance , 439 S.W .3d 918 (Tex. Crim. App. 2014).
State’ s P etitions The state’s petitions challeng e the court of appea ls’s trea tment of the trial court’s assessment of court costs. After the court of appea ls handed down its opinion, we decide d Johnson v. State , 423
S.W .3d 385 (Tex. Crim. App. 2014), which sets out a roadma p for resolving questions conce rning

court costs. The court of appea ls did not have the benef it of our Johnson opinion when it addre ssed appellant’ s claim conce rning court costs. There fore , we g rant the state’s petitions for discretionar y revie w in petition numbers PD-1790-13, PD-1791-13, and PD-1792-13, vacate the judgme nts of the

court of appea ls in those case s, and rema n d t h o s e three case s to the court of appea ls for

rec onsideration in light of our Johnson opinion. Bec ause of our disposition of applicant’s g round for r eview, w e dismiss as moot the state’s petition number PD-1793-13.

Deliver ed: J une 24, 2015 Publis h