Opinion issued June 5, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00039-CR

———————————

PETER JOHN SCHUSTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case No. 1322485

O P I N I O N

Peter John Schuster appeals from his conviction under Section 33.021(b)(1)

of the Texas Penal Code, which prohibits certain types of sexually explicit 

communications with a minor child. TEX. PENAL CODE ANN. § 33.021(b)(1) (West 

2012). On appeal, Schuster argues that Section 33.021(b)(1) is facially 
2

unconstitutional because it is overbroad and vague and because it violates the 

Dormant Commerce Clause of the United States Constitution. Alternatively, he

argues that his trial counsel was ineffective because he did not preserve the 

constitutionality challenges for appeal. We reverse the judgment, direct the trial 

court to dismiss the indictment, and direct that Schuster be released from 

imprisonment.

Background

Schuster was charged with one count of violating Section 33.021(b)(1) of 

the Penal Code, “Online Solicitation of a Minor,” which states in relevant part:

A person who is 17 years of age or older commits an offense if, with 

the intent to arouse or gratify the sexual desire of any person, the 

person, over the Internet, by electronic mail or text message or other 

electronic message service or system, or through a commercial online 

service, intentionally:

(1) communicates in a sexually explicit manner with a minor.

TEX. PENAL CODE ANN. § 33.021(b)(1) (West 2012). “Minor” is defined as “(A) 

an individual who represents himself or herself to be younger than 17 years of age; 

or (B) an individual whom the actor believes to be younger than 17 years of age.” 

Id. § 33.021(a)(1). Only the second definition of “minor” was charged in the 

indictment. For purposes of Section 33.021, “sexually explicit” is defined as “any 

communication, language, or material, including a photographic or video image, 

that relates to or describes sexual conduct, as defined by [Penal Code] Section 

43.25.” Id. § 33.021(a)(3). Section 43.25 of the Penal Code defines “sexual 
3

conduct” as “sexual contact, actual or simulated sexual intercourse, deviate sexual 

intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd 

exhibition of the genitals, the anus, or any portion of the female breast below the 

top of the areola.” Id. § 43.25(a)(2).

Schuster pleaded guilty to the charge and pleaded “true” to an enhancement 

paragraph stating that he had previously received three convictions of possession 

of child pornography. After a pre-sentence investigation hearing, the trial court 

found Schuster guilty and assessed a penalty of 40 years’ confinement in the 

Institutional Division of the Texas Department of Criminal Justice. Schuster now 

appeals, asking that this Court find Section 33.021(b)(1) unconstitutional and order 

entry of a judgment of acquittal. Alternatively, he asks that we order a new trial 

due to ineffective assistance of counsel.

While this appeal was pending, the Court of Criminal Appeals decided Ex 

parte Lo, in which it held that Section 33.021(b) is unconstitutionally “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.” 424 S.W.3d 10, 14 (Tex. Crim. App. 2013), rev’g Lo v. State, 

393 S.W.3d 290, 299 (Tex. App.—Houston [1st Dist.] 2011). The State of Texas 

sought rehearing, which the Court of Criminal Appeals denied. 424 S.W.3d at 30.
4

Constitutional Challenges

Schuster’s second argument on appeal is the same as that raised in Ex parte 

Lo, namely that Section 33.021(b)(1) is facially overbroad. The record reveals—

and Schuster concedes—that Schuster did not raise any constitutional challenges to 

Section 33.021(b)(1) in the trial court.

The Court of Criminal Appeals has stated that “a defendant may not raise for 

the first time on appeal a facial challenge to the constitutionality of a statute.” 

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Under Karenev, 

“[a] facial challenge to the constitutionality of a statute” falls within the category 

of matters for which an objection is necessary to preserve error. Id. at 434; Marin 

v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993) (recognizing three 

different rules for error preservation), overruled on other grounds by Cain v. State, 

947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see also Fuller v. State, 253 S.W.3d 

220, 232 (Tex. Crim. App. 2008) (“almost all error—even constitutional error—

may be forfeited if the appellant failed to object”); Sanchez v. State, 120 S.W.3d 

359, 365–66 (Tex. Crim. App. 2003) (stating that Marin is a watershed decision in 

law of error preservation); TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting 

a complaint for appellate review, the record must show that . . . the complaint was 

made to the trial court . . . .”). As the Court of Criminal Appeals explained, the 

“‘very nearly’ exclusive list” of situations in which a judgment can be considered 
5

void “does not include a judgment resulting from a facially unconstitutional 

statute.” Karenev, 281 S.W.3d at 432 (citing Nix v. State, 65 S.W.3d 664, 668 

(Tex. Crim. App. 2001)).

The Court of Criminal Appeals premised its holding in Karenev on the 

doctrine that “[s]tatutes are presumed to be constitutional until it is determined 

otherwise.” 281 S.W.3d at 434. Thus, “[t]he State and the trial court should not be 

required to anticipate that a statute may later be held to be unconstitutional,” and a 

defendant must raise a facial challenge to a statute in the trial court. Id. Here, 

however, that presumption of constitutionality cannot apply because the highest 

criminal court in this state—the Court of Criminal Appeals—has already 

determined that Section 33.021(b) is facially unconstitutional. See Ex parte Lo, 

424 S.W.3d at 14.

“The general rule concerning passage of an unconstitutional statute is that 

the law is ‘void from its inception and cannot provide a basis for any right or 

relief.’” Lapasnick v. State, 784 S.W.2d 366, 368 (Tex. Crim. App. 1990). There 

is an exception to that rule, such that an unconstitutional statute may give rise to a 

right “where a judgment has been rendered under an unconstitutional statute and 

litigants have relied upon the benefits of the statute until declaration of its 

invalidity.” Id. (quoting Rose v. State, 752 S.W.2d 529, 553 n.4 (Tex. Crim. App. 

1987)) (noting that defendant had obtained dismissal of criminal case on basis of 
6

former Speedy Trial Act, before Act was declared unconstitutional, and such 

reliance gave defendant right to avoid further prosecution). That exception does 

not apply here, as Schuster has not relied upon any “benefits” of the statute in 

question that might give rise to a substantive right.

We have been able to identify only one case implicating Karenev’s errorpreservation requirements as applied to a conviction under a statute that has been 

judicially declared unconstitutional by our state’s highest criminal court before the 

resolution of the appeal. Coincidentally, that case also addressed Ex parte Lo’s 

holding that Section 33.021(b) of the penal code is unconstitutional. Sanders v. 

State, No. 06–13–00172–CR, 2014 WL 887781, at *1 (Tex. App.—Texarkana 

Mar. 6, 2014, no pet. h.) (mem. op., not designated for publication). In a one-page 

opinion, the Texarkana Court of Appeals held that the defendant’s conviction 

could not stand, as the statute was void from inception. Id. (citing Lapasnick, 784 

S.W.2d at 368). Although the court’s opinion did not address error preservation, 

the briefs revealed that Sanders, like Schuster, did not raise a constitutional 

challenge in the trial court. The court of appeals nonetheless reversed. Id. The 

Texarkana court’s decision, however, has no precedential value, and, there, the 

State agreed that Sanders’s conviction could not stand. Id.; see also TEX. R. APP.

P. 47.7(a) (“Opinions and memorandum opinions not designated for publication by 

the court of appeals . . . have no precedential value . . . .”). We therefore must 
7

examine whether Schuster is entitled to reversal on his constitutional arguments in 

light of both Ex parte Lo and Karenev, but without regard to Sanders.

Karenev would control this case—defeating Schuster’s constitutional 

arguments—if the Court of Criminal Appeals had not already declared Section 

33.021(b) unconstitutional. But the Court of Criminal Appeals has done exactly 

that, and the rationale for the Karenev rule—the presumption that a statute is 

constitutional—does not apply to this case. See Karenev, 281 S.W.3d at 434. 

Further, nothing in the Karenev majority indicates that the Court of Criminal 

Appeals intended that courts of appeals affirm convictions based on statutes that 

have already been overturned. Under these facts, we find instructive Justice 

Cochran’s concurring opinion in Karenev, joined by three other judges, in which 

she wrote,

I do not think that the majority is suggesting that it is quite acceptable 

to send someone to prison for violating an unconstitutional penal 

statute if that person failed to object to the statute’s unconstitutionality 

in the trial court. But its language could well be misconstrued as 

allowing persons who are not guilty of violating any valid penal 

statute to be punished nonetheless if they failed to complain soon 

enough. The moral of that story would be: Because you were a 

slowpoke at noticing that you were not guilty of any valid criminal 

offense, we will punish you as if you really were guilty of some valid 

criminal offense. That is not the American way: every person has an 

absolute, fundamental, and unforfeitable right to be punished only for 

the violation of a valid criminal statute.

281 S.W.3d at 438–39 (Cochran, J., concurring).
8

Justice Cochran identified three rationales for requiring an objection in the 

trial court: (1) to give the opposing party an opportunity to respond or cure the 

problem before it becomes error, (2) to give the trial judge an opportunity to 

prevent the error from occurring, and (3) the interests of judicial economy. Id. at 

439. None of those rationales applies when the highest court in our state has 

already declared the statute in question to be facially unconstitutional in its 

entirety, such that the defects in the proceeding cannot be saved or cured by the 

prosecutor or trial court. Id. at 440. Rather, in such a circumstance, “the bedrock 

American notion that we do not convict and punish people for unconstitutional 

crimes” prevails over such concerns. Id.

Further, the Karenev majority reaffirmed the “functional approach to error 

preservation” first set out in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 

1993). Karenev, 281 S.W.3d at 434 (majority op.) (citing Marin, 851 S.W.2d at 

279–80). Under Marin, error-preservation rules divide a criminal defendant’s 

rights into three categories: (1) absolute requirements or prohibitions, (2) rights 

subject to express waiver, and (3) rights that can be forfeited by a defendant’s 

failure to assert them. Marin, 851 S.W.2d at 279–80. Ordinarily, “[a] facial 

challenge to the constitutionality of a statute falls within the third category,” when 

the presumption that the statute is constitutional applies. Karenev, 281 S.W.3d at
9

434. By contrast, 

The first category, “absolute requirements and prohibitions” or 

“systemic” rights, are those rights “which are essentially independent 

of the litigants’ wishes. Implementation of these requirements is not 

optional and cannot, therefore, be waived or forfeited by the parties. 

The clearest cases of . . . systemic requirements are laws affecting the 

jurisdiction of the courts.” Systemic requirements “are to be observed 

even without partisan request” and cannot “lawfully be avoided even 

with partisan consent.” Therefore, an appellant may “complain that 

an absolute requirement or prohibition was violated, and the merits of 

his complaint on appeal are not affected by the existence of a waiver 

or forfeiture at trial.”

Sanchez, 120 S.W.3d at 366 (citations and footnotes omitted). We conclude that a

criminal conviction under a statute that the Court of Criminal Appeals has already 

held unconstitutional falls into this category of absolute prohibitions, because such 

a statute is “void from its inception” and thus cannot support a criminal conviction

when the defendant challenges its constitutionality on appeal. Lapasnick, 784 

S.W.2d at 368; see also Karenev, 281 S.W.3d at 439 (Cochran, J., concurring).

We hold that the Court of Criminal Appeals’ decision in Ex parte Lo excuses 

Schuster’s failure to preserve his constitutional arguments below. The Court of 

Criminal Appeals has already determined that the argument has merit in that 

Section 33.021(b)(1) is unconstitutionally, facially overbroad. We therefore 

sustain Schuster’s second issue on appeal.
10

Conclusion

Because Schuster’s conviction depended entirely on a statute that the Court 

of Criminal Appeals has held to be constitutionally invalid before our decision in 

this appeal, that conviction cannot stand. We reverse the judgment, direct the trial 

court to dismiss the indictment, and direct that Schuster be released from 

imprisonment. We deny all pending motions as moot.

Harvey Brown

Justice 

Panel consists of Justices Jennings, Sharp, and Brown.

Publish. TEX. R. APP. P. 47.2(b).