_/ OFFICIALNOTICE FROM COURTOF CRIMINAL APPEALS OF TEXAS FILE COPY P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711**,._~** ,. 11/26/2014 .,; ' •, '• .· ..·.• . ·' .. ELMORE, DEREK MARSHALh,,: 

### Tr:·¢(.Np. QR(i7538A WR-82,491-01 On this day, the application fof'J 1:0.7)Nri.tof ljabeas Corpus has been received and presented to the Court. '·:•: •.**·~** · :· .. ,

### <' ·**·.·.:.:~~::,(.i(."·** ·.··•· JOHN W. STICKELS STICKELS 

### &ASSOCIATES, P.C. 770 NORTH FIELDER ROAD ARLINGTON, TX 76012 * DELIVERED VIA E-MAIL * Abel Acosta, Clerk



# I vEXPARTE

DEREKMARSHALL ELMORE NO. CR-07538 

### § § 

### § § 

### § § § IN THE 220TM JUDICIAL DISTRICT COURT OF HAMILTON COUNTY, TEXAS MEMORANDUM 1. 

### The Court finds that the applicant was convicted under a statute (Texas Penal Code §33.021(b)) that has been declared facially unconstitutional. 2. The Court recommends that the applicant's ground for relief be granted, and his conviction for online solicitation ofa minor be set aside.
ORDER 

### The Court directs the post-conviction writ clerk to: 1. 

### File these fmdings and transmit them along with the current writ transcript to the Clerk of the Court ofCriminal Appeals as required by law. \ 

### 2. Furnish a copy ofthis order to the appellant's counsel, the Hon. John W. Stickels, 770 North Fielder Rd., Arlington, Texas 76012; and to the Hamilton County District Attorney's Office.
SIGNED AND ENTERED THIS ___day of____________ ,, 2014.
JUDGE PRESIDINGCase No. ---'----- (The Clerk ofthe convicting court 

### will fill this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 NAME: DerekMarshall Elmore DATE OF BIRTH: November 1, 1984**--------~~-------------------------------------** PLACE OF CONFINEMENT:**------------~------~-------------------** TDCJ-CID NUMBER: .,:;..17=3=5=06=5-·-------.-SID NUMBER:_0_7_87_8_8_72 ____**~** (1) This application concerns (check all that apply): 

### 0 a conviction 0 parole 0 a sentence 0 mandatory supervision 0 time credit 0 out-of-time appeal or petition for discretionary review (2) Whatdistrict court entered thejudgment ofthe conviction you want relieffrom? (Include the court number and county.) 2201 hJudicial District Court, Hamilton County (3) Whatwas the case number in the trial court? CR-07538 (4) What was the name ofthe trialjudge? Honorable James Morgan

Effective: January 1, 2014 

### I(5) Wereyou represented by counsel? Ifyes, provide the attorney's name: Yes, Ricky Bryan (6) What was the date that thejudgmentwas entered? ( 

### {August 19, 2009 (7) Forwhat offense wereyou convicted and what was the sentence? Online Solicitation ofaMinor, TX Penal Code §33.021(£), 10 years (8) Ifyou were sentenced on more than one count ofan indictment in the same court at**t~e** sametime, what counts were you convicted ofand whatwas the sentence in each count? NIA
(9) Whatwas the plea you entered? (Check one.) 0 guilty-open plea 0 not guilty 0 guilty-plea bargain 0 

### nolo contendere/no contest Ifyou entered different pleas to counts in a multi-count indictment, please explain:

(10) What kind oftrial did you have? 

### 0 nojury 0 jury for guilt and punishment 0 jury for guilt,judgefor punishment

2(11) Did you testify attrial?- Ifyes, at what phase ofthe trial did you.testify? N/A (12) Did you appeal froilt thejudgment ofconviction? 0 yes 

### 1& no Ifyou did appeal, answer the following questions: (A) What court ofappeals did you appeal to? __ __;;_N:.;..;/A;_:________ _ (B) What was the case number? N/A**------------~-~~-----------------** (C) Wereyou represented by counsel on appeal? Ifyes, provide the attorney's name: \ N/A (D) What was the decision and the date ofthe decision? N/A 

# ______;;_ 

# ____________ (13) Did you file a petition for discretionary review in the Court ofCriminal Appeals? 0 yes**~** no Ifyou did file a petition for discretionary review, answer the following questions: (A) Whatwas the case number? NIA (B) Whatwas the decision and the date ofthe decision? N/A**--~~~-----------** (14) Have you previously filed an application for a writ ofhabeas corpus under Article 11.07 ofthe Texas 'Code ofCriminal Procedure challenging 

### this conviction? 0 yes X no Ifyou answered yes, answer the following questions: (A) What was the Court ofCriminal Appeals' writ number?------------

3(15) 

### (B) Whatwas the decision and the date ofthe decision? (C) 

### Please identify the reason that the current claims were not presented and cotild not have been presented on your previous application.

Do you currently have any petition or appeal pending in any other state or federal court? / 1 

### yes X 

### no If

### you answered yes, please provide the name ofthe court and the case number:
(16) If

### you are presenting a claim for time credit, have you exhausted your administrative remedies by presentingyour claim to the time credit resolution system ofthe Texas Department ofCriminalJustice? (This requirement applies to any final felony conviction, including statejail felonies) 1 

### yes 1 

### no If

### you answered yes, answct' the following questions: (A) What date did you present the claim? (B) Did you receive a decision and, ifyes, whatwas the date ofthe decision?

If

### you answered no, please explain why you have not submitted your claim:

4

### (17) Beginning on page 6, state concisely every legal ground for your claim thatyou are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary ofthe facts. 

### If yourgrounds andbrief summary of the facts have notbeen presentedon the form application, the Court will

### not consideryourgrounds. lfyou have more than four grounds, use pages 14 and 15 ofthe form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence., The recitation ofthe facts supporting each ground mustbe no longer than the two pages provided for the ground in the form. You may include with the form a memorandum oflaw ifyou want to present legal authorities, but the Courtwill notconsider, grounds for reliefset out in a memorandum oflaw thatwere notraised on the form. The citations and argument must be in a memorandum that complies with Texas Rule ofAppellate Procedure 73 and does notexceed 15,000 words ifcomputer-generated or 50 pages ifnot. If

### you ·are challengingthe validity ofyour conviction, please include a summary ofthe facts

pertaining to your offense and trial in your memorandum.

5GROUND ONE: Applicant was convicted under a state statute (Texas Penal Code, Sec. 33.021(f)) that has since been held to be facially unconstitutional by the Texas Court ofCriminal Appeals.
FACTS SUPPORTING GROUND ONE: Applicant was charged in a one count indictment, filed on**Mar~h** 9, 2009, for online solicitation of a**~1inor** in violation of Texas Penal Code, Sec. 33.021 (f) ("distribute sexually explicit material to a minor" subsection). On August 19, 2009, Applicant was adjudicated guilty to count one and was sentenced to I0 years TDC which after conviction, was suspended for a term of I0 years and was placed on community supervision pursuant to Art. 42.12 §3, C.C.P. The Texas Court ofCriminal Appeals holds that Sec. 33.021(b) is unconstitutional on its face because it is over broad and criminalizes constitutionally protected speech in violation of the First Amendment to the United States Constitution. Applicant is therefore confined solely under a statute that has now been held to be unconstitutional on its face. Applicant should be granted relief.

6WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT [ .

RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING. VERIFICATION This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalfofan applicant, for example, an applicant's attorney. An inmate is a person who is in custody.

.. The inmate applicant must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public. Ifthe inmate is represented by a licensed attorney, the attorney may sign the "Oath Before a Notary Public" as petitioner and then complete ''Petitioner's Information." A**non~inrriate** applicant must sign the :•oath Before a Notary Public" before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner. A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public" before a notary public and must also complete "Petitioner's Information." An inmate petitioner must sign eitherthe "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public and mustalso complete the appropriate "Petitioner's Information." OATHBEFORE A NOTARY PUBLIC STATE OF TEXAS COUNTY OF TARRANT JOHN W. STICKELS being duly sworn, under oath says: 'I am the applicant I petitioner (circle one) in this action and know the contents ofthe aboveappl' adon for a writ of habeas corpus and, according to my belief, the facts state in t lie are true."

( SUBSCRIBED AND SWORN TO BEFORE ME THIS 7TH DAY OF OCTOBER, 2014
\ !} 

# JlltktA

# ~-Jo~u~ SignaturlofNotary Public

7PETITIONER'S INFORMATION Petitioner's printed name: John W. Stickels State**b~r** number, ifapplicable: 19225300 Addfess: 770 N. Fielder Rd. Arlington, Texas 76012 john@stickelslaw.cmn Telephone: (817) 479-9282 Fax: (817) 622-8071 INMATE'S DECLARATION I,-------------'am the applicant Ipetitioner (circle one) and being presently incarcerated in , declare under penalty of perjury that, according to my beiief, the facts stated in the above application are true and correct. Signed on--'---------,-----' 20__ . ·signature ofApplicant I Petitioner (circle one)

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### PETITIONER'S INFORMATION 'L Petitioner's printed name: John W. Stickels



# --------------------------- Address: 770 N. Fielder Rd. Arlington, Texas 76012 johr1@stickelslaw.corh Telephone: (817) 479-9282 Fax: (817) 622-8071 Signed on 

# Odobel 

# '1 ,2oJ!i_.
Signature ofPetitioner

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