Texas Improper Photography Unconstitutional

Probation Revoked for Violating an Unconstitutional Law…CCA Overturns

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Punishment for a Man Convicted of Child Pornography Held Facially Unconstitutional

Ex Parte Lea (Tex. Crim.App. 2016)

Texas Improper Photography UnconstitutionalWhat happens when an old criminal law is rendered null and void? Do people convicted of such crimes get to walk free, or, are the convictions upheld in the interests of justice? The Texas Court of Criminal Appeals (“CCA”) filed an ex parte case (the court filed the case on its own volition) to determine whether David Lea’s punishment for his 2008 child pornography conviction should be set aside on constitutional grounds. The case was met with a dissent by Judge Yeary and the CCA reached a very interesting conclusion.

In 2008, David Lea pled guilty to three counts of possession of child pornography. As a result, he was sentenced to twelve years’ imprisonment, ten of which were probated by way of community supervision. In 2012, Lea pled guilty to one count of improper visual photography and received a state-jail felony sentence of two years confinement. During sentencing, the State filed a motion to revoke Lea’s community supervision from the 2008 conviction because, the State argued, Lea violated the terms of his supervision by committing a new criminal offense. Accordingly, the court revoked Lea’ s probation and Lea was sentenced to six years imprisonment.

The Offense of “Improper Photography” Held Unconstitutional

In 2014, the CCA held that the offense of improper photography was “facially unconstitutional” because it infringed upon individuals’ First Amendment rights, as propounded by the Constitution of the United States. The main issue? The improper photography statute, once found in Section 21.15(b)(1) of the Texas Penal Code was overbroad. Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).

Lea Files Writ to Overturn His Conviction for the Stricken Law

Lea filed a Writ of Habeas Corpus, arguing that because the offense of improper photography was found unconstitutional, (1) his sentence for improper visual photography should be vacated and (2) his original probation via community supervision should be reinstated.

When an old law is found to be unconstitutional on its face, it is considered to be “void from its inception and should be treated as if it never existed.” Smith v. State, 463 S.W. 3d 890, 895. The due process right to not be convicted under a statute that has been declared void cannot be forfeited. Ex Parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015).

CCA Overturns Lea’s Prior Conviction and Revocation

When Lea was originally sentenced in 2008, the CCA had not yet determined the fate of the improper photography statute. And while it’s true that courts may revoke community supervision based upon a violation of community supervision conditions—committing any future crimes in this case—the Court finds that Lea’s conviction must be set aside. “The harm here flows from his void conviction, namely, the revocation of his community supervision based solely on an offense that [in theory] never existed.”

Accordingly, the CCA set aside the revocation of Lea’s community supervision, and remanded the case to the trial court to determine reinstatement of his probation. It is important to note that Justice Yeary dissented in this case, referring to Fournier, “I do not believe the applicant should be able to obtain retroactive post-conviction collateral relief based upon an overbroad statute unless he can show that the statute was unconstitutional as to his own conduct. 473 S.W. 3d 789, 805 (Tex. Crim. App. 2015). Yeary believes that post-conviction relief should only be granted to those defendant-applicants who can show that the conduct in question did not fall within the “plainly legitimate sweep of the overbroad statute.”

Texas Felony Habitual Offender True

A “True” Pleading to Felony Priors Lifts State’s Evidentiary Burden

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Texas Felony Habitual Offender TrueWhat happens when the State omits the year of an offense on a legal document presented before the court for a sentencing enhancement? Well, nothing, so long as the defendant pleads “true” to the priors and the enhancement itself is not improper, according to the latest holding from the Court of Criminal Appeals. The CCA revisits Roberson v. State to explain why it comes to this quirky conclusion.

See the CCA opinion in Hopkins v. State (Tex. Crim. App. 2016).

Defendant Pleads “True” to a Notice Pleading with Incomplete Information

Essie Hopkins was convicted for aggravated robbery for shooting his victim as he ran away with her wallet. During the punishment phase, the State pushed for an enhancement to his sentencing for more prison time under Texas’s habitual offender statute. In the original indictment, the State alleged that the defendant had a prior conviction for aggravated assault with a deadly weapon from 2003. Later, the State alleged in a notice pleading that the defendant had a second aggravated assault conviction, however, the State failed to include the year of the offense in the paperwork. When the State read the enhancement allegations into court record, Hopkins pled “true” to committing and being charged with the prior felonies. Hopkins’ mother also testified, citing knowledge of the two prior felony convictions—one occurring in 2003 and the other in 2009. The State did not provide evidence of the prior aggravated assaults.

On appeal, the Fifth Court of Appeals affirmed the lower court’s conviction, holding, “that [Hopkins’] plea of “true” to both enhancements was sufficient evidence to support a finding on those allegations.” Hopkins v. State, No. 05-14-00146-CR, 015 WL 3413582, *6 (Tex. App.—Dallas May 28, 2015, pet. granted) (mem. op.) (not published). Hopkins appealed to the Criminal Court of Appeals, arguing that because the wording in the notice pleading is not clear, the State was required to present evidence of the felony even though Hopkins pled “true.”

Texas Penal Code Sentencing Enhancement Laws

Under section 12.42(d) of the Texas Penal Code, a defendant’s punishment may be enhanced if “it is shown on the trial [record]…that the defendant has previously been…convicted of two felony offenses…the defendant shall be punished by imprisonment…for any term not more than 99 years or less than 25 years. TEX. PENAL CODE § 12.42(d); Jordan v. State, 256 S.W. 3d 286, 290-291 (Tex. Crim. App. 2008).

If the defendant pleads “true” to an enhancement paragraph, then the State is off the hook to prove up in court the enhancement allegations. Roberson v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013) (citing Mikel v. State, 167 S.W. 3d 556, 559 (Tex. App.—Houston [14th Dist.] 2005, no pet.))

The Court of Criminal Appeals Looks to Roberson v. State

In Roberson, the defendant was convicted of aggravated assault with a deadly weapon and was sentenced to 30 years in prison based on a “true” pleading to prior felony convictions. Id. Because the court record of that case did not affirmatively reflect that the enhancement was improper, the court held that the defendant’s “true” pleading relieved the State’s burden of proving up the felony convictions. Id. at 840. In Roberson, the court record also supported the enhancement allegations. Id.

The CCA stated, “[Hopkins] fail[s] to direct us to any record evidence affirmatively showing that the enhancements were improper, the record actually supports the enhancement allegations.” In sum, if a defendant pleads “true” to a sentencing enhancement during the punishment phase at trial, then the State is absolutely relieved of the evidentiary burden to prove the defendant actually committed and was convicted of the priors, so long as the enhancement itself is not improper.