Smith v. Texas (original by judge johnson)
Annotate this CaseAppellant was an instructor for a life-guarding class at a club swimming pool where the complainant worked as a receptionist during that summer. The two became involved in a romantic relationship that involved sexual contact and “sexting” messages, some of which included nude photos. A jury later convicted appellant of possession of child pornography, two counts of sexual assault of a child, and online solicitation of a minor and sentenced him to serve three years’ incarceration for each count of sexual assault and eight years’ incarceration for the possession and solicitation counts. Both eight-year sentences were suspended, and all of the sentences were ordered to be served concurrently. Appellant appealed, and the court of appeals reformed the trial court’s judgments to delete the specific amount of assessed costs and affirmed the judgments as reformed. Both appellant and the State filed petitions to the Court of Criminal Appeals for discretionary review, which were granted. The State argued: (1) the court of appeals erred in holding that the sufficiency of the evidence justifying the assessment of court costs should be based on the clerk’s “bill of costs” rather than on the statutory predicate for the assessment of such costs; and (2) the court of appeals erred in failing to reform the judgment to adjudge the correct assessment of court costs as mandated by the relevant statutes. Appellant argued that his conviction under Texas Penal Code Section 33.021(b) was void because the Court of Criminal Appeals held this statutory subsection facially unconstitutional. Appellant acknowledged that he did not raise this claim on appeal, but pointed out that "Ex parte Lo" "was decided four months after [he] filed his brief,” and that his failure to object to the constitutionality of this statute at the trial-court level was irrelevant because an “unconstitutional and void law may be attacked regardless of whether the complaining party objected at the trial or appellate stage.” The Court concluded appellant was entitled to relief, "[b]ecause we have previously held that Section 33.021(b) is facially unconstitutional, [. . .] it was 'stillborn' and void ab initio." The Court sustained appellant’s ground for review in petition number PD-1793-13, reverse the judgment of the court of appeals in its case number 14-11-00841-CR, and rendered a judgment of acquittal for the online-solicitation offense based on Section 33.021(b). With regard to the State's petitions, the Court of Criminal Appeals vacated the appellate court's judgments and remanded three cases for reconsideration in light of "Johnson v. Texas," (423 S.W.3d 385 (Tex. Crim. App 2014).
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