Freeman, Corey Thomas v. The State of Texas Appeal from 401st Judicial District Court of Collin County (memorandum opinion )
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Reverse and Remand; Opinion Filed November 21, 2014. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00923-CR COREY THOMAS FREEMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-80780-2011 MEMORANDUM OPINION ON REMAND Before Justices Lang, Myers, and Evans Opinion by Justice Evans Corey Thomas Freeman was convicted of online solicitation of a minor under section 33.021(b) of the Texas Penal Code. On September 10, 2013, we affirmed the trial court’s judgment. See Freeman v. State, No. 05-12-00923-CR, 2013 WL 4805698 (Tex. App.—Dallas Sept. 10, 2013, pet. granted). After we issued our opinion and judgment, the Texas Court of Criminal Appeals issued its opinion in Ex Parte Lo holding that section 33.021(b) is facially unconstitutional. See Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The court then granted Freeman’s petition for review in this case, vacated our judgment, and remanded the cause for reconsideration in light of Lo. See Freeman v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) (per curiam). A law that has been declared facially unconstitutional is void from its inception and cannot provide a basis for any right or relief. See Ex Parte Chance, 439 S.W.3d 918, 918–19 (Tex. Crim. App. 2014) (per curiam) (Cochran, J., concurring). For this reason, a person may always obtain relief from an indictment or conviction that was based on a penal statute that has been declared unconstitutional. Id. at 919. “No one can be convicted for a non-existent crime and no prior conviction based upon that unconstitutional statute is valid.” Id. Freeman was convicted under a statute that has been declared facially unconstitutional. Because Freeman cannot lawfully be convicted for a crime that does not exist, we reverse the trial court’s judgment, remand the cause, and direct the trial court to dismiss the indictment. /David Evans/ DAVID EVANS JUSTICE Do Not Publish TEX. R. APP. P. 47 120923RF.U05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT COREY THOMAS FREEMAN, Appellant No. 05-12-00923-CR On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401-80780-2011. Opinion delivered by Justice Evans. Justices Lang and Myers participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED with instructions to enter an order dismissing the indictment. Judgment entered this 21st day of November, 2014. –3–
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