              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. WR-83,576-01


                           EX PARTE CHARLES HIRSCH, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. F-2007-1760-A WHC 1 IN THE 16TH DISTRICT COURT
                                  DENTON COUNTY

       R ICHARDSON, J., filed a dissenting statement in which J OHNSON and A LCALA, JJ.,
joined.

                                  DISSENTING STATEMENT

       Applicant, through his attorney, filed an application for writ of habeas corpus pursuant

to Article 11.07 of the Texas Code of Criminal Procedure. He seeks to have his conviction

set aside because the offense for which he was convicted—online solicitation of a

minor1 —has been held unconstitutional pursuant to this Court’s opinion in Ex parte Lo.2

Both the trial court and the State agree that Applicant is entitled to relief. Since Lo, this


       1
           T EX. P ENAL C ODE § 33.021(b).
       2
           424 S.W.3d 10 (Tex. Crim. App. 2013).
                                                                     Hirsch Dissenting Statement — 2


Court has routinely granted relief to other writ applicants seeking to have their convictions

set aside on that basis. Nineteen opinions granting such relief were just recently handed

down.3 Nevertheless, the Court dismisses this application because Applicant’s sentence has

been discharged, and his writ application fails to allege collateral consequences.4 In this

particular case, however, I see no reason to force Applicant to file a second writ application

when his right to relief under Lo is unquestionable, and the collateral consequences resulting

from his conviction are obvious and apparent from the face of the record.5




        3
          See, e.g., Ex parte Dudley, WR-81,819-01, WR-81,819-02, and WR-81,819-03, 2016 WL
551685 (Tex. Crim. App. Feb. 10, 2016) (not designated for publication); Ex parte Lockridge, WR-
81,919-01, 2016 WL 551669 (Tex. Crim. App. Feb. 10, 2016) (not designated for publication); Ex
parte Sarles, WR-79,065-02, 2016 WL 548245 (Tex. Crim. App. Feb. 10, 2016) (not designated for
publication); Ex parte Morrisey, WR-81,243-02, 2016 WL 548390 (Tex. Crim. App. Feb. 10, 2016)
(not designated for publication); Ex parte Trevino, WR-82,110-01, 2016 WL 551677 (Tex. Crim. App.
Feb. 10, 2016) (not designated for publication); Ex parte Ponce, WR-83,725-01, 2016 WL 537583
(Tex. Crim. App. Feb. 10, 2016) (not designated for publication); Ex parte Call, WR-83,772-01, 2016
WL 637767 (Tex. Crim. App. Feb. 10, 2016) (not designated for publication); Ex parte Capps, WR-
83,978-01, 2016 WL 637649 (Tex. Crim. App. Feb. 10, 2016) (not designated for publication); Ex
parte Ramirez, WR-83,221-01, 2016 WL 638057 (Tex. Crim. App. Feb. 10, 2016) (not designated for
publication); Ex parte Bledsoe, WR-82,861-01, 2016 WL 625251 (Tex. Crim. App. Feb. 10, 2016)
(not designated for publication).
        4
        T EX. C ODE C RIM. P ROC. art. 11.07, § 3(c); Ex parte Harrington, 310 S.W.3d 452, 457 (Tex.
Crim. App. 2010).
        5
          Statutorily mandated sex offender registration is a collateral consequence of Applicant’s
conviction for online solicitation of a minor. See Ex parte Vansumeren, WR-81,368-01, 2016 WL
548410 (Tex. Crim. App. Feb. 10, 2016) (not designated for publication) (“Although Applicant has
discharged her sentence in this case, she alleges that she is suffering collateral consequences as a result
of this conviction because she must comply with sex offender registration requirements.”).
                                                                      Hirsch Dissenting Statement — 3


       This Court is granted the power to issue writs under the Texas Constitution and

Chapter 11 of the Code of Criminal Procedure.6 The Court’s subject matter jurisdiction is

defined by Article 11.07 § 3(c). Although Applicant has not specifically alleged collateral

consequences bringing his application within the Court’s subject matter jurisdiction, the

collateral consequences are clear under Articles 62.001(5)(J) and 62.051(a) of the Code of

Criminal Procedure. Ex parte Harrington says “a showing of a collateral consequence,

without more, is now sufficient to establish ‘confinement’ so as to trigger application of art.

11.07.”7 In this case, no further inquiry into the record is required, and no remand is

necessary, to determine Applicant’s collateral consequences. I am not advocating a general

rule that habeas applicants who are no longer confined need not plead collateral

consequences in order to seek habeas review. It is true that the rules require that they do so.

However, I believe that the writ applications filed pursuant to this Court’s decision in Lo are

unique in that the collateral consequences of a conviction under Section 33.021(b) are clear.

       Applicant’s attorney noted on this habeas application that Applicant’s sentence had

been discharged, but he failed to invoke the jurisdiction of Article 11.07 § 3(c) by pleading

collateral consequences. Applicant’s counsel has filed an application on his client’s behalf

that has been found by this Court to preclude review of a meritorious claim for relief.




       6
           T EX. C ONST. art. V § 5(c); T EX. C ODE OF C RIM. P ROC. art. 11.05.
       7
           310 S.W.3d at 457.
                                                             Hirsch Dissenting Statement — 4


Although Applicant will not ultimately be prejudiced by this filing, he should not be

penalized for the shortcomings of his counsel. I believe the interests of judicial economy and

justice would be better served in this case by granting Applicant relief, setting aside his

judgment, and remanding him to the Sheriff of Denton County so that the indictment against

him may be disposed of in accordance with this Court’s opinion in Ex parte Lo. The Court

has done this countless times since the Lo decision was rendered, and it makes sense to do

that now, rather than later. Therefore, respectfully, I dissent.




FILED:        May 25, 2016

DO NOT PUBLISH
