In the Court of Criminal 

Appeals of Texas

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No. WR-94,041-01

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EX PARTE JOSE D. GONZALEZ,

Applicant

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On Application for a Writ of Habeas Corpus

Cause No. 1191091-A in the 208th District Court

From Harris County

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YEARY, J., filed a dissenting opinion.

The Court today grants relief. Regarding Applicant’s actual 

innocence claim, I agree with the majority. For the reasons stated in Ex 

parte Fournier, Applicant is not actually innocent. See Ex parte 

Fournier, 473 S.W.3d 789, 790–96 (Tex. Crim. App. 2015) (explaining 

that an actual innocence claim is a factually based claim alleging that

newly discovered evidence shows that the applicant did not commit the 
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charged conduct as a matter of historical fact). In this case, Applicant’s

purely legal basis for his claim that the convicting statue is 

unconstitutionally overbroad does not amount to an actual innocence 

claim.1

I nevertheless dissent to the Court’s ultimate disposition of this 

1 This case is distinguishable from Ex parte Warfield, in which I agreed 

with the Court that the Applicant therein was “actually innocent.” Ex parte 

Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021). In Warfield, the Applicant 

pled guilty to fraudulent possession of identifying information and to 

possession of more than ten “items . . . possessed,” which made the offense a 

second-degree felony. After Warfield’s plea, this Court, in Ex parte Cortez,

construed the phrase “item of . . . identifying information,” in an opinion, for 

the very first time. 469 S.W.3d 593 (Tex. Crim. App. 2015). That construction 

of the unit of prosecution language revealed that Warfield had actually 

possessed only six “items,” meaning that he was, in fact, never guilty of the 

second-degree felony, as a matter of historical fact, pursuant to a proper 

understanding of the law involved. The Court’s decision in Warfield explained 

that, in order to be guilty of the greater offense, Warfield must have possessed 

a certain number of “items,” and he in fact never possessed that number of 

“items.” It was a factually and historically based actual innocence claim. In 

this case, however, Gonzales does not claim that he did not, in fact, commit the 

exact conduct for which he was convicted. He merely brings the purely legal 

claim that he is entitled to retroactive relief since he was convicted under a

statute that this Court has subsequently declared to be overbroad. 

If the Applicant in this case had argued that he was convicted under a 

facially unconstitutional statute that is unconstitutional in every possible 

application, rather than simply overbroad, I would not distinguish this 

Applicant’s claim from that in Warfield. If Applicant had brought such a claim, 

he would be arguing that he in fact never committed any constitutionally 

proscribable conduct, making him “actually innocent” in the same absolute 

sense as the applicant in Warfield. Just as the statute in Warfield meant what 

the Court found it to mean since the moment of its enactment, a facially 

unconstitutional statute, invalid in every application, is void from the moment 

of enactment. Here, with an Applicant seeking retroactive relief from 

conviction under a statute with at least some plainly legitimate applications, 

it is not necessarily the case that Applicant has demonstrated that he never in 

fact committed any constitutionally proscribable conduct. Applicant is bringing 

a legal claim without alleging anything about the conduct he in fact committed. 
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case. In 2009, Applicant pled guilty to the state jail felony of improper 

photography under Texas Penal Code Section 21.15(b)(1). TEX. PENAL 

CODE § 21.15(b)(1). After that plea, this Court held that Section 

21.15(b)(1) was facially unconstitutional, as overbroad. Ex parte 

Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014). Subsequently, 

Applicant brought this 11.07 collateral attack against his final 

conviction, seeking relief under Thompson. See TEX. CODE CRIM. PROC.

art. 11.07. Today, the Court sets aside Applicant’s final conviction 

because he was sentenced under a statute later held to be 

unconstitutional. 

I dissent for the reasons I have stated in many similar dissenting 

opinions. Namely, I question the Court’s willingness to give decisions 

such as Ex parte Lo and Ex parte Thompson, in which the Court decides 

that a statute is facially unconstitutional as overbroad, the power of 

retroactive application—even in post-conviction habeas corpus 

proceedings. See Ex parte Shay, 507 S.W.3d 731, 738 (Tex. Crim. App. 

2016) (Yeary, J., dissenting) (dissenting to retroactive application of 

Thompson); Ex parte Chang, 485 S.W.3d 918, 918–19 (Tex. Crim. App. 

2016) (Yeary, J., dissenting) (dissenting to retroactive application of 

Thompson); Fournier, 473 S.W.3d at 800 (Yeary, J., dissenting)

(dissenting to retroactive application of Ex parte Lo, 424 S.W.3d 10 (Tex. 

Crim. app. 2013)).

The Court should more carefully consider whether retroactive 

application through post-conviction 11.07 collateral attack is necessary, 

given the underlying purpose of the First Amendment overbreadth 

doctrine. Beyond necessity, the Court should consider whether 
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retroactive application through post-conviction 11.07 collateral attack is 

fair, given the windfall we are repeatedly granting applicants who have 

not shown or even claimed that their own First Amendment rights have 

been harmed. And it is not necessary. 

Even if retroactive relief from convictions under overbroad 

statutes were appropriate at some other procedural stage, such a claim 

should not be entertained by this Court in a post-conviction 11.07 

collateral attack. As a foundational rule, “a post-conviction writ of 

habeas corpus is reserved for those instances in which there was a 

jurisdictional defect in the trial court which renders the judgment void 

or for denials of fundamental or constitutional rights.” Ex parte Drake, 

883 S.W.2d 213, 215 (Tex. Crim. App. 1994). Granting applicants postconviction retroactive relief, without first requiring the applicants to 

show that their own constitutional rights have been violated, goes 

against this threshold requirement.

I. GENERAL RULE FOR FACIAL UNCONSTITUTIONALITY

When bringing a claim that a statute is unconstitutional on its 

face, the starting point is to show that the statute is “unconstitutional 

in every conceivable application[.]” Members of City Council of City of 

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). In other 

words, the most basic claim of facial unconstitutionality is that none of 

a statute’s possible applications, in the past, present, or future, has been 

or ever could be valid. From this understanding of facial 

unconstitutionality, Texas courts logically recognize that a statute with 

no conceivable valid application is “void from its inception,” “stillborn,” 

and “amounts to nothing and accomplishes nothing[.]” Reyes v. State, 
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753 S.W.2d 382, 383 (Tex. Crim. App. 1988).

 The propriety of retroactive relief from convictions under these 

facially unconstitutional statutes is uncontroversial and apparent. 

Fournier, 473 S.W.3d at 801 (Yeary, J., dissenting) (“Given this general 

rule—that an unconstitutional statute is inoperable ‘from its 

inception’—it may seem redundant or even pointless to engage in an 

analysis of retroactivity of the judicial decision that declared the statute 

to be unconstitutional.”) (quoting Reyes 753 S.W. at 383). Such a statute 

is lifeless not just from the date a court held it to be unconstitutional, 

but from the moment of its enactment. Id. Because there are no 

circumstances in which the statute can be or could have been validly 

applied, any person convicted under the statute at any point in time

necessarily has had his rights infringed upon.

II. FIRST AMENDMENT SUBSTANTIAL OVERBREADTH DOCTRINE

In Ex parte Thompson, this Court did not hold the improper 

photography statute unconstitutional in the sense that every 

conceivable application of the statute was invalid. Instead, the Court 

decided that the statute was facially unconstitutional because it was 

“overbroad.” Thompson, 442 S.W.3d at 349–51. As explained by the 

United States Supreme Court in Taxpayers for Vincent, “[t]here are two 

quite different ways in which a statute or ordinance may be considered 

invalid ‘on its face’—either because it is unconstitutional in every 

conceivable application, or because it seeks to prohibit such a broad 

range of protected conduct that it is unconstitutionally ‘overbroad.’” 

Taxpayers for Vincent, 466 U.S. at 796.

For a statute to be unconstitutionally overbroad, it does not have 
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to be the case that every imaginable application has been or would be

unconstitutional. Rather, under the overbreadth doctrine, a statute 

must “‘prohibit[ ] [only] a substantial amount of protected expression[,]’” 

Thompson, 442 S.W.3d at 350 (quoting Ashcroft v. Free Speech Coal.,

535 U.S. 234, 244 (2002)), in relation to the statute’s “‘plainly legitimate 

sweep.’” Id. at 349 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 

(1973)).

The propriety of retroactive relief from final convictions under an 

overbroad statute should be more controversial; it is certainly less 

apparent than retroactive relief from convictions under a statute with 

only unconstitutional applications. See Fournier, 473 S.W.3d at 803

(Yeary, J., dissenting) (“A defendant finally convicted pursuant to a 

statute that is found only to be constitutionally overbroad is unlike a 

defendant who was convicted pursuant to a statute that has no 

conceivable constitutional applications. * * * [R]etroactively declaring 

his conviction void ab initio would seem arguably to be neither necessary 

nor just.”). Because the doctrine frankly concedes that an overbroad 

statue has at least some legitimate sweep, it may be that many of the 

prior convictions under the statute were constitutional. Id.

Another way to understand the lighter burden attached to 

overbreadth claims is in terms of standing. Ordinarily, litigants do not 

have standing to come before a court to raise others’ rights. Parties must 

have their own concrete stake in the outcome of the case. See Heckman 

v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012) (“In Texas, the 

standing doctrine requires a concrete injury to the plaintiff and a real 

controversy between the parties that will be resolved by the court. This 
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parallels the federal test for Article III standing[.]”). Carefully 

considered principles of judicial restraint justify these strict standing 

requirements. 

When a court hears First Amendment overbreadth claims, it 

cautiously strays from established standing requirements and allows 

parties to appear before it who have not personally been harmed. As the 

doctrine of overbreadth accepts, the party before the court may have 

been punished under the statute’s plainly legitimate sweep. The United 

States Supreme Court describes the doctrine as an “exception” by which

statutes “should be subject to challenge even by a party whose own 

conduct may be unprotected.” Taxpayers for Vincent, 466 U.S. at 798.

III. UNDERLYING CONCERN OF THE OVERBREADTH DOCTRINE: THE 

CHILLING EFFECT

The specific danger presented by overbroad statutes that justifies 

both the lighter burden a claimant must meet, and also the relaxation 

of ordinary standing requirements, is the so-called “chilling effect.” As 

explained by the United States Supreme Court, “[t]his exception from 

the general rule is predicated on ‘a judicial prediction or assumption that 

the statute’s very existence may cause others not before the court to 

refrain from constitutionally protected speech or expression.’” Id. at 799 

(quoting Broadrick, 413 U.S. at 612). As reiterated by this Court, the 

doctrine “reflects the judgement that ‘the possible harm to society in 

permitting some unprotected speech to go unpunished is outweighed by 

the possibility that protected speech of others may be muted[.]’” Ex parte 

Lo, 424 S.W.3d at 18 (quoting Broadrick, 413 U.S. at 612). Flipping 

standing on its head, the overbreadth doctrine’s primary concern is not 

to protect the party standing directly before a court. Instead, the 
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doctrine protects the outside world of potential speakers who would have 

engaged in First Amendment activity but for reading the overbroad 

statute and fearing retribution. 

Today, the Court follows a pattern of cases in which it goes farther

than is necessary, or even justified, to abate the concern that motivates

the overbreadth doctrine. Going beyond allowing an uninjured party to

initially claim a statute is overbroad, the Court takes the additional step 

of allowing presumptively uninjured habeas applicants to nullify final 

convictions, even in post-conviction collateral attacks. The Court takes

this gratuitous and socially costly step despite its own admonishment

that the overbreadth doctrine is a “‘strong medicine’ to be employed with 

hesitation and only as a last resort[.]” Thompson, 442 S.W.3d at 349 

(quoting New York v. Ferber, 458 U.S. 747, 769 (1982)).

This Applicant’s claim illustrates the need for us to think more 

critically about retroactive relief from convictions under overbroad 

statutes. Applicant does not claim that the chilling effect of the law 

under which he was prosecuted remains a threat to the outside world. 

He does not claim that the chilling effect of the overbroad statute muted 

any of his own speech that the First Amendment would have protected. 

Instead, in testimony before the Houston Immigration Court, Applicant 

explained that he was convicted because he “used his cell phone to take 

a photograph up a woman’s skirt.” Matter of Gonzalez-Cazares, Jose 

Domingo, Houston, Texas Immigration Court Decision File Number 

A058-079-828, at 3.

When explaining what kind of potentially protected expression 

the Court believed might fall under the illegitimate sweep of Texas 
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Penal Code Section 21.15(b)(1), the Thompson Court pointed to 

indictments charging defendants with taking pictures “of people in a 

public place (a water park) and of areas of the person that were exposed 

to the public (wearing swimsuits).” Thompson, 442 S.W.3d at 350. But 

in identifying the clearest examples of conduct falling within the 

statute’s plainly legitimate sweep, the Court explained: “[Section]

21.15(b)(1) does apply to the situation in which a non-consensual 

photograph is taken of a person in a private place, such as the home, 

and the situation in which a photograph is taken of an area of a person’s 

body that is not exposed to the public, such as when a photograph is 

taken up a woman’s skirt.” Id. at 349 (emphasis added).

This is not the first case in which examining the actual conduct 

of an applicant highlights the absurdity of granting retroactive relief 

without asking whether the particular conviction fell within the plainly 

legitimate sweep of the overbroad statute. I pointed out the same 

scenario in Ex parte Shay, in which the applicant was convicted after 

taking a video of others having sex. Shay, 507 S.W.3d at 739 (Yeary, J., 

dissenting). There, I reasoned from this Court’s discussion in Thompson

that such a conviction “hardly seems to establish that the statute 

operated unconstitutionally as applied to Applicant’s particular 

conduct.” Id. Here, it is even more apparent that the statute operated

constitutionally as applied to this Applicant; he was convicted for 

engaging in the exact conduct the Court itself, in Thompson, made a 

point to identify as easily fitting within the statute’s plainly legitimate 

sweep.

Gifting this Applicant with retroactive relief does nothing to serve 
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the chilling-effect concern underlying the overbreadth doctrine. The risk 

of inhibiting First Amendment activity ends once a court holds that an 

overbroad statute is unconstitutional. Such a decision eliminates the 

chilling message previously broadcast to potential speakers, halts all

future convictions under the statute, and notifies the Legislature of its 

risky drafting. Fournier, 473 S.W.3d at 803 (Yeary, J., dissenting). The 

legitimate purposes of the overbreadth doctrine, if any, have already 

been served by our decision in Thompson. Id. Prospective application is 

enough. Id. Allowing retroactive relief at this stage—in no less than 

post-conviction collateral habeas corpus proceedings⸻causes societal 

harm by allowing unprotected speech to go unpunished and by letting 

defendants escape final convictions well after the fact. The benefits of 

the overbreadth doctrine are no longer outweighed by the possibility 

that protected speech of others may be chilled or circumscribed.

IV. CONCLUSION

In Fournier, I expressed that I would “hesitate” to grant postconviction retroactive relief on the ground that an applicant was 

convicted under a statute later held to be overbroad without requiring 

the applicant to show that the statute was unconstitutional as it applied 

to their conviction. Id. at 800. I no longer hesitate. See Ex parte 

Mitcham, 542 S.W.3d 561, 567 n.1 (Tex. Crim. App. 2018) (“In Fournier,

I argued that the Court should not grant retroactive relief on the 

grounds that the statute was later declared unconstitutionally 

overbroad without first deciding whether an applicant needed to show 

that the statute was unconstitutional as it applied to him. * * * I have 

since concluded that this question should be answered in the 
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affirmative.”); Chang, 485 S.W.3d at 918–19 (Yeary, J., dissenting)

(dissenting to the Court’s grant of retroactive relief based on Thompson);

Shay, 507 S.W.3d at 738–40 (Yeary, J., dissenting) (dissenting to the 

Court’s grant of retroactive relief based on Thompson).

Final convictions under a statute later declared overbroad should 

not receive retroactive nullification from this Court in every case. 

Retroactive relief does not naturally follow when the doctrine itself 

admits that at least some of the convictions that occurred prior to the 

overbreadth holding may have been perfectly legitimate and 

constitutional. Additionally, the sweep we give to the overbreadth 

doctrine should mirror the justification for the doctrine itself. The risk—

that the very existence of a particular law might suppress First 

Amendment activity—justifies straying from ordinary standing 

requirements only to the extent that an uninjured party may bring the 

initial claim that a statute is overbroad. 

The chilling effect should no longer be feared once a court like 

ours has explained that a statute is unconstitutionally overbroad. Once 

that has happened, we should return to traditional principles of 

standing for applicants challenging their prior, final convictions under 

the overbroad statute. Instead of weaponizing our overbreadth decisions 

with the power of indiscriminate, retroactive habeas relief, we should 

require post-conviction applicants to show that their convictions did not 

fall within the plainly legitimate sweep of the overbroad statute.

FILED: October 19, 2022

PUBLISH