LESTER, COLTON ALAN Appeal from 258th District Court of Polk County (concurring by judge yeary)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,227-01 EX PARTE COLTON ALAN LESTER, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 23,538-A IN THE 258TH DISTRICT COURT FROM POLK COUNTY Y EARY, J., filed a concurring opinion. CONCURRING OPINION Today, the Court grants post-conviction habeas corpus relief to an applicant who was convicted of attempted online solicitation of a minor after the statute was declared unconstitutionally overbroad. See Majority Opinion (granting habeas relief based upon Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)). I agree with the Court’s decision to grant Applicant the relief he seeks, but I would grant relief only on Applicant’s ineffective assistance of counsel claim. LESTER — 2 This case presents the same issue that I addressed in my concurring opinion in Ex parte Mitcham, No. WR-87,738-01, 2018 WL 847655, at *1 (Tex. Crim. App. Feb. 14, 2018) (Yeary, J., concurring). In Mitcham, and in this case, both the alleged offense date and the conviction occurred after this Court handed down its decision in Ex parte Lo. Id.1 Just as in this case, Mitcham claimed not only that his conviction should be vacated in light of Lo, but also that his counsel was ineffective for allowing him to plead guilty to an unconstitutionally overbroad statute in the first place. Id. The Court granted Mitcham post-conviction relief on the basis that Lo had declared Section 33.021(b) unconstitutionally overbroad. Id. I disagreed with the Court’s decision to grant relief on that basis, arguing that the applicant should first demonstrate that the statute was applied unconstitutionally in his case. Id. at *1 n.1 (basing this conclusion on the reasoning I set forth in my dissenting opinion in Ex parte Fournier, 473 S.W.3d 789, 800–805 (Tex. Crim. App. 2015) (Yeary, J., dissenting)). I further opined that Lo may have been improperly decided and suggested that the Court ought to reconsider that decision at a later time. Mitcham, 2018 WL 847655, at *1. Nonetheless, I concurred with the result because the applicant demonstrated that his counsel was ineffective for permitting him to plead guilty to a statute after it had been declared unconstitutionally overbroad. Id. I would grant the applicant here the post-conviction relief he seeks for the same 1 Ex parte Lo was decided on October 30, 2013. The offense in this case allegedly occurred on April 27, 2014 and Applicant was charged by information on August 26, 2014. LESTER — 3 reason. Although I have since advocated that it is time for this Court to reconsider Lo,2 the fact remains that “[a] defendant may not properly be charged or convicted under a statute after the statute has been declared facially unconstitutional.” Id. (citing Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)). Applicant’s counsel failed to raise the issue and allowed Applicant to plead guilty anyway. Id. Under these circumstances, I agree with Applicant that his counsel was constitutionally ineffective and concur in the Court’s decision to grant relief. DELIVERED: April 11, 2018 DO NOT PUBLISH 2 Ex parte Chavez, No. WR-87,785-01, 2018 WL 1109534 (Tex. Crim. App. Feb. 28, 2018) (Yeary, J., dissenting) (“Once again, the Court today grants post-conviction relief to an applicant whose conduct, as I see, fails to even remotely constitute protected speech. . . . Today, I believe that the Court should reconsider Ex parte Lo and determine whether the case was decided correctly.”).
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