             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                NOS. PD-1790-13, PD-1791-13, PD-1792-13, PD-1793-13

                      FREDRICHEE DOUGLAS SMITH, Appellant

                                                v.

                                  THE STATE OF TEXAS

                         ON APPELLANT’S AND STATE’S
                    PETITIONS FOR DISCRETIONARY REVIEW
                  FROM THE FOURTEENTH COURT OF APPEALS
                               HARRIS COUNTY

      J OHNSON, J., delivered the opinion of the Court in which M EYERS, A LCALÁ,
R ICHARDSON, and N EWELL, JJ., joined. K ELLER, P.J., filed a concurring and dissenting
opinion. Y EARY, J., filed a concurring and dissenting opinion in which K EASLER and
H ERVEY, JJ., joined.

                                         OPINION

       A jury 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
                                                                                                  2

judgments to delete the specific amount of assessed costs and affirmed the judgments as reformed.

Smith v. State, Nos. 14-11-00838-CR, 14-11-00839-CR, 14-11-00840-CR, 14-11-00841-CR, 2013

Tex. App. LEXIS 15273 (Tex. App.–Houston [14th Dist.] Dec. 19, 2013) (mem. op., not designated

for publication).

                                               Facts

       Appellant was charged with offenses alleged to have occurred in 2008 when the named

complainant was fourteen years old and appellant was twenty-two. Appellant was an instructor for

a life-guarding class at a club swimming pool where the named 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.

                                   Court of Appeals Opinion

       On appeal, appellant claimed that trial counsel rendered ineffective assistance of counsel in

various manners and that the amounts assessed against him as court costs should be deleted from the

judgments because the clerk’s record did not contain a bill of costs. The court of appeals addressed

the multiple claims of deficient performance by trial counsel and determined that appellant had not

demonstrated deficient performance by trial counsel or prejudice and overruled his claim of

ineffective assistance of counsel. Id. at **4-10. The court of appeals held that the trial court

correctly ordered appellant to pay court costs, but “did err in entering a specific dollar amount

without any support in the record for that dollar amount.” Id. at **11-12. Because there was no

evidence in the record to support the trial court’s assessment of a specific dollar amount as court

costs, the court of appeals reformed the trial court’s judgment in each case to delete the specific

dollar amount of costs assessed. Id. at *12. The court of appeals accordingly affirmed the judgments
                                                                                                                       3

as reformed. Id.

                                              Grounds For Review

         Both appellant and the state filed petitions for discretionary review. We granted review of

those petitions. The state’s petitions raise two grounds:

         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.

         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’s petitions raise a single ground:

         Mr. Smith’s conviction under Texas Penal Code Section 33.021(b) is void because
         the court of criminal appeals held this statutory subsection facially unconstitutional.

                                              Appellant’s Petitions

         In this Court, appellant challenges only the conviction for online solicitation of a minor.

Although we granted review of all four of appellant’s petitions, only one of those petitions, number

PD-1793-13, addresses that conviction. Appellant’s other three petitions correspond to the court of

appeals’s and trial court’s judgments for his other three convictions.1 Therefore, we dismiss

appellant’s other petitions, numbers PD-1790-13, PD-1791-13, and PD-1792-13, as improvidently

granted.

         Appellant argues that, because of this Court’s ruling in Ex parte Lo2 that Texas Penal Code



         1
            Appellant’s petition for discretionary review was filed as a single document with a heading that listed each
of the four court-of-appeals cause numbers that are attached to the appealed convictions. This Court docketed each of
the four petitions with a separate number. The court of appeals’s opinion disposed of all four appealed cases in a single
opinion that listed the four separate cause numbers because appellant’s complaints on direct appeal applied to all four
convictions.

         2
             424 S.W .3d 10 (Tex. Crim. App. 2013).
                                                                                                                   4

section 33.021(b) is unconstitutional, his conviction under that statute is void.                        Appellant

acknowledges that he did not raise this claim on appeal, but points out that Lo “was decided four

months after [he] filed his brief,”3 and contends that his failure to object to the constitutionality of

this statute at the trial-court level is irrelevant because an “unconstitutional and void law may be

attacked regardless of whether the complaining party objected at the trial or appellate stage.”

Appellant’s Br. 8.

         Appellant reasons that, because in Ex parte Lo this Court has already held that Section

33.021(b) is facially unconstitutional for over-breadth and “[b]ecause an unconstitutionally

overbroad law is a void, nonexistent law, [he] has not forfeited his right to object to his conviction

under that statutory subsection.”4 He also contends that, because Section 33.021(b) has been found

to be facially unconstitutional, courts should view it void ab initio and that his conviction under

Section 33.021(b) is therefore void. He further asserts that reversal of a conviction based on a void

statute is a systemic requirement and a right that cannot be waived. He cites Marin v. State5 for the

proposition that some rights are so fundamental to the fair operation of the criminal-justice system

that they cannot be forfeited by inaction or failure to assert them. He also contends that absolute

requirements are systemic requirements that address the court’s jurisdiction and should be addressed

regardless of a party’s complaint at the trial and appellate stages.

         Appellant argues that the trial court had no jurisdiction to render a judgment on a non-



        3
          Appellant’s Br. x. Appellant’s appellate brief was filed on June 20, 2013. This Court delivered its opinion
in Lo on October 30, 2013, and issued mandate on April 14, 2014.

        4
            Appellant’s Br. 2.

        5
          851 S.W .2d 275, 278-81 (Tex. Crim. App. 1993) (overruled on other grounds by Cain v. State, 947 S.W .2d
262, 264 (Tex. Crim. App. 1997)).
                                                                                                                    5

existent offense, thus his conviction on the basis of an unconstitutional statute is a denial of due

process, due course of law, and the Eighth Amendment prohibition against cruel and unusual

punishment.6

          The state argues that, prior to the decision of the court of appeals on the online-solicitation

case, appellant never objected to that prosecution on grounds that the statute was unconstitutional

and argues that, therefore, “he cannot raise that challenge for the first time in a petition for

discretionary review.” State’s Br. 8. The state contends that, since Lo did not become final until after

the trial court rendered its judgments and the court of appeals affirmed the convictions in this case,

reversing those courts based upon Lo would have the effect of requiring them to anticipate that the

online-solicitation statute would later be held to be unconstitutional. It notes our language in

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009): “The State and the trial court should

not be required to anticipate that a statute may later be held to be unconstitutional.”

          The state looks to our opinion in Karenev, in which we concluded that “a defendant may not

raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Id. It asserts

that, based upon that rationale, “appellant was required to object in order to preserve the issue for

direct appeal.”7 It also notes our recognition of the nearly exclusive list of situations in which a

judgment can be considered void and that the list does not include a judgment resulting from a

conviction based on a facially unconstitutional statute. Karenev, 281 S.W.3d at 432, citing Nix v.

State, 65 S.W.3d 664 (Tex. Crim. App. 2001).



          6
              Appellant also asserts that affirming this conviction will violate the First Amendment and the Supremacy
Clause.

          7
              State’s Br. 10.
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             The state suggests that this Court lacks jurisdiction to rule on “the constitutionality issue”

because the court of appeals did not decide that issue and, in our discretionary-review capacity, we

review “decisions” of the courts of appeals. It also contends that appellant has an adequate remedy

at law via writ of habeas corpus and should be required to seek relief through such a writ.

         In answer to the state’s claim that we lack jurisdiction to rule on the Lo issue, appellant

argues that we may exercise our jurisdiction to correct a clear error in the name of judicial efficiency.

He notes that, while the court of appeals did not address the constitutionality of Section 33.021(b),

its decision affirming the conviction under that subsection directly conflicts with our decision in Lo.

Appellant cites our language in Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013),

which states that, “when the proper resolution of the remaining issue is clear, we will sometimes

dispose of the case in the name of judicial economy.”

                                                      Analysis

         In Lo, 424 S.W.3d at 19-20, we specifically held that Section 33.021(b) is unconstitutionally

over-broad. The state does not challenge our prior holding as to the statute’s constitutional

deficiency; it takes issue only with the procedural posture in which appellant seeks to apply that

holding to his conviction under that statute.

         Davison involved a situation in which our rejection of the lower appellate court’s basis for

disposition gave rise to another issue that was necessary to the appeal’s disposition but which the

appellate court had not already addressed.8 That situation differs from the factual context of this

         8
           Davison plead guilty to the offense of burglary of a building, a state jail felony. In a written “Guilty Plea
Memorandum” and orally, the trial court advised Davison that a state-jail felony is punishable by not less than 180 days
and no more than two years in a state-jail facility. But Davison also plead true to three felony enhancement paragraphs,
which increased the available punishment range to that of a second-degree felony. Some four months after accepting
the appellant's guilty plea, the trial court held a punishment hearing and imposed the maximum sentence for a second-
degree felony. At no point did the trial court formally admonish Davison that, as enhanced, the charges against the
                                                                                                                         7

case. Nevertheless, we conclude that, in affirming appellant’s conviction for the online-solicitation

offense, the court of appeals implicitly determined that there was no constitutional impediment to

prosecuting that offense. Accordingly, we have determined that we have jurisdiction to review the

court of appeals’s decision. And because this case involves a conviction under a statutory provision

that we have previously determined is facially unconstitutional, addressing the merits of appellant’s

challenge to his conviction under that very same statutory provision allows us to dispose of the case

in the name of judicial economy if the proper solution of the issue is clear. Davison, 405 S.W.3d

at 691-92.

         We have recognized that “an unconstitutional statute is void from its inception” and that

“‘when a statute is adjudged to be unconstitutional, it is as if it had never been’” and that such “an

unconstitutional statute is stillborn[.]” Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)

(citing and quoting Ex parte Bockhorn, 138 S.W. 706, 707 (Tex. Crim. App. 1911)). We have also

said “that an unconstitutional statute in the criminal area is to be considered no statute at all.” Reyes,

753 S.W.2d at 383 (citing Hiett v. United States, 415 F.2d 664, 666 (5th Cir. 1969), cert. denied 397

U.S. 936 (1970)).

         In Marin, we recognized that our system contains rules of three distinct kinds:

         (1) absolute requirements and prohibitions; (2) rights of litigants which must be



appellant exposed him to a range of punishment of two to twenty years in the penitentiary.
          On appeal, Davison argued that the failure to admonish him with respect to the applicable range of punishment
violated the statute and also rendered his guilty plea involuntary for purposes of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. The court of appeals held that the trial court erred in failing to admonish
Davison as required by Tex. Code Crim. Proc. article 26.13(a) before accepting his guilty plea and that, because the
statutory admonishment is in the nature of a waiver-only right, this error could be asserted for the first time on appeal.
But it also held that the error was harmless under Texas Rule of Appellate Procedure 44.2(b), the standard for
non-constitutional errors. The court of appeals declined to reach the merits of Davison’s constitutional claim because,
unlike the appellant’s statutory claim, his constitutional claim was subject to procedural default and was forfeited by his
failure to raise it in the trial court and, even if properly preserved, any constitutional error was harmless.
                                                                                                       8

        implemented by the system unless expressly waived; and (3) rights of litigants which
        are to be implemented upon request.

Marin, 851 S.W.2d at 279. A category-one “absolute requirement and prohibition” right includes

the right to be free from the enforcement of a statute that has been declared unconstitutional and

void. Id. “For example, this Court has held that nonjurisdictional principles of due process and

separation of powers are such as to render void from its inception conflicting legislation.” Id., citing

Rose v. State, 752 S.W.2d 529, 552-553 (Tex. Crim. App. 1988) (opinion on rehearing). In Rose,

we explained that it did not matter that the defendant had failed to object to the parole-law section

of the jury charge because we had previously held that portion unconstitutional as a violation of the

doctrine of separation of powers. Rose, 752 S.W.2d at 553. Thus, one consequence of declaring a

penal statute unconstitutional and void is to put a conviction pursuant to that statute into the Marin

“category one”—an absolute right or legal requirement that is so fundamental that it cannot be

forfeited or waived by those complaining thereafter.

        As the state notes, in Karenev we held that a defendant could not raise a facial challenge to

the constitutionality of a statute for the first time on appeal.9 But the situation in that case is

distinguishable from the present one in appellant’s case. In Karenev, the defendant was attacking

a valid statute that had not yet been declared void. In the present case, appellant is seeking relief for

a conviction of a non-crime under a statute that has already been held to be invalid.

        We offer an example. Suppose a juvenile, who had been convicted of capital murder in 2004

and sentenced to death, complained for the first time on appeal that our death-penalty statute was

unconstitutional because it permitted the execution of juveniles. In 2004, we would have summarily



        9
            281 S.W .3d at 434.
                                                                                                    9

rejected any such complaint because the defendant did not object at trial. But in 2005, the Supreme

Court held that the Eighth Amendment bars the execution of juveniles, even when they commit

murder. Roper v. Simmons, 543 U.S. 551 (2005). Once the Supreme Court had spoken, that same

defendant, whose claim we had summarily rejected in 2004, would be entitled to relief from his

death sentence in a habeas application or, if his direct appeal were still pending, on direct appeal.

See, e.g., Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014) (determining propriety of

addressing merits of unobjected-to constitutional challenge to statute requiring life-without-parole

sentence for juvenile capital murderer).

       The distinction is that a Marin “category one” right, which is not subject to forfeiture or

waiver by the failure to object, is a right that was recognized as fundamental before the defendant

made his present claim. Any defendant, convicted or not, may obtain relief from a conviction under

a statute that has already been held void. Imagine that the Supreme Court holding that the

constitution does not permit the execution of juveniles was interpreted by trial courts to not apply

to juveniles who were tried before the Simmons decision and who did not object at trial, thus

permitting those juveniles to be executed. Such a rule would be both a fundamental miscarriage of

justice and a rule that the Supreme Court, American society, and this Court would not accept. That

is what Marin “category one” rights represent–a bulwark against the miscarriage of justice.

       Appellant is entitled to relief. Because we have previously held that Section 33.021(b) is

facially unconstitutional, there is no valid law upon which to base the conviction that appellant

challenges in petition number PD-1793-13. See McFarlin v. State, 123 S.W. 133 (Tex. Crim. App.

1909) (“The law upon which this prosecution is predicated was held by this court unconstitutional.

See Ex parte Frank A. Smythe, [56 Tex. Crim. 375;] 120 S.W. 200[; 1909 Tex. Crim. App. LEXIS
                                                                                                    10

262]. There being no valid law upon which to predicate a prosecution, the judgment is reversed, and

the prosecution ordered dismissed.”) Because it is facially unconstitutional, it was “stillborn” and

void ab initio. See Reyes, 753 S.W.2d at 383. Accordingly, we sustain 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 render a judgment of acquittal for the online-solicitation offense based

on Section 33.021(b). See Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).

                                         State’s Petitions

       The state’s petitions challenge the court of appeals’s treatment of the trial court’s assessment

of court costs. After the court of appeals handed down its opinion, we decided Johnson v. State, 423

S.W.3d 385 (Tex. Crim. App. 2014), which sets out a roadmap for resolving questions concerning

court costs. The court of appeals did not have the benefit of our Johnson opinion when it addressed

appellant’s claim concerning court costs. Therefore, we grant the state’s petitions for discretionary

review in petition numbers PD-1790-13, PD-1791-13, and PD-1792-13, vacate the judgments of the

court of appeals in those cases, and remand those three cases to the court of appeals for

reconsideration in light of our Johnson opinion. Because of our disposition of applicant’s ground

for review, we dismiss as moot the state’s petition number PD-1793-13.



Delivered: June 24, 2015
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