Supreme Court of Texas 

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No. 21-0775 

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Colton Lester, 

Petitioner, 

v. 

Cecil E. Berg, Seth Johnson, Johnson Law Office, PLLC, Dustin 

Andreas, and Phillips and Andreas, PLLC, 

Respondents

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On Petition for Review from the 

Court of Appeals for the Ninth District of Texas 

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JUSTICE BUSBY, concurring in the denial of the petition for review. 

Colton Lester was charged with two separate offenses of online 

solicitation of a minor, and he pleaded guilty to one count of attempted 

solicitation under a subsection of the statute that had been declared 

unconstitutional. After obtaining habeas relief, he sued his criminal 

defense attorneys for malpractice. The trial court granted summary 

judgment for the attorneys, and the court of appeals affirmed. 

The court of appeals took the position that the Court of Criminal 

Appeals’ decision granting habeas relief in Ex parte Lester and our 

Court’s analysis granting wrongful-imprisonment compensation in In re 
2 

Lester were wrong, based on the clerk’s record as the court of appeals 

parsed it.1 Although I agree with my colleagues that this case does not 

meet the criteria for granting discretionary review, our denial of Lester’s 

petition is not an endorsement of the court of appeals’ undertaking, or 

of its conclusion. 

Lester pleaded guilty to attempted online solicitation of a minor. 

The trial court ordered deferred adjudication of a “third-degree felony” 

under Texas Penal Code subsection “33.021(f).”2 Subsection (f) relates 

to two crimes, subsections 33.021(b) and 33.021(c), which are variations 

of an offense entitled “online solicitation of a minor.” TEX. PENAL CODE

§ 33.021. An offense under subsection (c) is a second-degree felony, and 

an offense under subsection (b) is a third-degree felony.3 

Though the State charged Lester with two offenses, Lester 

pleaded guilty to only one: a third-degree felony corresponding to an 

offense under subsection (b). The order of deferred adjudication reflects 

as much, as Lester was found guilty of a third-degree felony. The Court 

1 No. 09-19-00305-CV, 2021 WL 3196530, at *11 (Tex. App.—Beaumont 

July 29, 2021) (citing Ex parte Lester, No. WR-88, 227-01, 2018 WL 1736686 

(Tex. Crim. App. Apr. 11, 2018) (per curiam), and In re Lester, 602 S.W.3d 469 

(Tex. 2020)).

2 Id. at *2–3. 

3 An offense under Subsection (b) is a felony of the third degree, 

except that the offense is a felony of the second degree if the 

minor is younger than 14 years of age or is an individual whom 

the actor believes to be younger than 14 years of age at the time 

of the commission of the offense. An offense under Subsection 

(c) is a felony of the second degree. 

TEX. PENAL CODE § 33.021(f).
3 

of Criminal Appeals so held, explicitly stating that Lester was convicted 

of an offense under subsection (b). Ex parte Lester, 2018 WL 1736686, 

at *1 (“Applicant was convicted of attempted online solicitation of a 

minor and sentenced to imprisonment. TEX. PENAL CODE § 33.021(b).”). 

At the time Lester committed his crime, subsection (b) had been 

declared unconstitutional.4 For that reason, the Court of Criminal 

Appeals granted Lester’s application for a writ of habeas corpus, 

declaring his conviction under subsection (b) “not valid.” Id. Relying on 

that decision, our Court determined that Lester could seek 

compensation for wrongful imprisonment under the Tim Cole Act. In re 

Lester, 602 S.W.3d at 475. 

In its analysis, the court of appeals observed that Lester’s guilty 

plea also “fits the ‘solicit’ verbiage of section 33.021(c), which has . . . 

never been held unconstitutional.” 2021 WL 3196530, at *10. The court 

of appeals theorized that Lester might have been convicted under 

section 33.021(c), which had no constitutional infirmity. The court of 

appeals also stated that the “appellate record does not support a finding 

that Lester’s conduct was not a crime at the time it was committed,” 

venturing that our Court’s opinion in In re Lester “would be incorrect 

based on the record now before us.” Id. at *11. 

The flaw in this analysis is that Lester was not convicted of any 

crime save an unconstitutional one. As the Court of Criminal Appeals 

determined, Lester’s conviction under subsection (f) was to an offense 

4 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Legislature 

later amended the statute. Act of May 5, 2015, 84th Leg., R.S., ch. 61, § 2, 2015 

Tex. Gen. Laws 1036, 1036. 
4 

under subsection (b), not (c). Ex parte Lester, 2018 WL 1736686, at *1. 

For that reason alone, the Court of Criminal Appeals granted habeas 

relief.5 

The Court of Criminal Appeals has the final word on matters of 

criminal law.6 In its opinion, the court of appeals should have adhered 

to the pronouncements of the Court of Criminal Appeals in matters of 

criminal law, as well as to this Court’s decision in In re Lester.7

 

 J. Brett Busby 

 Justice 

OPINION FILED: November 4, 2022 

5 A concurring judge would have granted relief based on ineffective 

assistance of counsel instead. 2018 WL 1736686, at *2 (Yeary, J., concurring).

6 The Texas Constitution provides that the “Court of Criminal Appeals 

shall have final appellate jurisdiction coextensive with the limits of the state, 

and its determinations shall be final, in all criminal cases of whatever 

grade . . .” TEX. CONST. art. V § 5(a) (emphasis added). 

7 “It is fundamental to the very structure of our appellate system that 

this Court’s decisions be binding on the lower courts.” Dall. Area Rapid Transit 

v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 

2008). “[I]n reaching their conclusions, courts of appeals are not free to 

disregard pronouncements from this Court, as did the court of appeals here.” 

In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (citing Lofton v. Tex. Brine Corp., 

777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from 

criticism from courts of appeals; rather they must follow this court’s 

pronouncements.”)).