           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. WR-82,102-01

                    EX PARTE CURTIS FOURNIER, Applicant

           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        FROM CAUSE NO. 1151921-A IN THE 351ST DISTRICT COURT
                          HARRIS COUNTY




                                   NO. WR-82,103-01

                EX PARTE CHRISTOPHER DOWDEN, Applicant

           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        FROM CAUSE NO. 1300886-A IN THE 337TH DISTRICT COURT
                          HARRIS COUNTY

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

                                     OPINION

      After being convicted and sentenced for online solicitation of a minor, Curtis Fournier

and Christopher Dowden filed applications for a writ of habeas corpus. In addition to
                                                                   FOURNIER & DOWDEN—2

seeking relief based on this Court’s opinion holding the applicable statute unconstitutionally

overbroad, Applicants also seek relief under an actual innocence theory. Holding that

Applicants do not present true actual innocence claims, we conclude they are not entitled to

actual innocence relief. However, consistent with precedents granting relief under an

unconstitutional statute theory, we set aside Applicants’ judgments.

       Fournier and Dowden both pleaded guilty to the offense of online solicitation of a

minor under Texas Penal Code § 33.021(b)1 and were sentenced to terms of confinement in

2008 and 2011, respectively. In 2013, this Court in Ex parte Lo held § 33.021(b) to be

unconstitutionally broad.2 Although the State had a compelling interest in protecting children

from sexual predators, § 33.021(b) was not narrowly drawn “because there are narrower

means of achieving the State interests advanced here, at least some of which are already

covered by other statutes.”3 Section 33.021(b)’s constitutional infirmity was found in the

Legislature’s drafting. The Court did not necessarily hold that Lo’s conduct was



       1
         T EX. P ENAL C ODE § 33.021(b) (West 2012) (“A person who is 17 years of age or
older commits an offense if, with the intent to arouse or gratify the sexual desire of any
person, the person, over the Internet, by electronic mail or text message or other
electronic message service or system, or through a commercial online service,
intentionally:

       (1) communicates in a sexually explicit manner with a minor; or

       (2) distributes sexually explicit material to a minor.”).
       2
           424 S.W.3d 10, 19 (Tex. Crim. App. 2013).
       3
           Id. at 24.
                                                                FOURNIER & DOWDEN—3

constitutionally protected.

       In their respective applications, Applicants request habeas corpus relief under Lo and

under the theory that, because the statute is unconstitutional, they are “actually innocent.”

There is no disagreement among the parties that Applicants are entitled to have their

judgments set aside under Lo.4 We agree. The undecided issue is whether Lo entitles

Applicants to relief under an “actual innocence” theory. We filed and set their applications

to answer this question.

                           Actual Innocence in the Texas Courts

       Texas’s actual innocence jurisprudence is heavily borrowed from federal law, but its

application has been substantially modified. In Herrera v. Collins, by way of a federal

habeas corpus petition, Herrera sought to present evidence that his brother committed the

capital murder for which he was convicted.5 He claimed that he was “actually innocent” of

the capital murder and that the prohibition of cruel and unusual punishment and the

Fourteenth Amendment’s due process guarantee forbade his execution for the offense.6 The

United States Supreme Court addressed the use of actual innocence as a way to avoid the bar

of subsequent federal habeas petitions. Although a federal petitioner may have his federal

constitutional claim considered on the merits if he “supplements his constitutional claim with



       4
           See Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).
       5
           Herrera v. Collins, 506 U.S. 390, 393–94 (1993).
       6
           Id. at 393.
                                                                FOURNIER & DOWDEN—4

a colorable showing of factual innocence,” “a claim of ‘actual innocence’ is not itself a

constitutional claim, but instead a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on the merits.” 7 The Court never

held that factual innocence is eligible as a freestanding claim for relief.8 For the sake of

argument, the Court assumed that it did and went on to hold that Herrera could not satisfy

the extraordinarily high showing required.9

       Taking the concept of actual innocence from the United States Supreme Court’s

opinion in Herrera, this Court in State ex rel. Holmes v. Honorable Court of Appeals for the

Third District first declared that the execution of an innocent person would violate the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.10 The

Holmes Court adopted as persuasive Herrera’s passage in assuming a freestanding

constitutional right: “We may assume for the sake of argument in deciding this case . . . a

truly persuasive demonstration of ‘actual innocence’ made after trial would render the

execution of a defendant unconstitutional, and warrant federal habeas relief if there were no

state avenue open to process such a claim.”11 Holmes held that only when an applicant can


       7
            Id. at 404.
       8
            Id. at 404–405. See House v. Bell, 547 U.S. 518, 554–55 (2006).
       9
            Herrera, 506 U.S. at 417–20.
      10
        State ex rel. Holmes v. Honorable Court of Appeals for the Third District, 885
S.W.2d 389, 397 (Tex. Crim. App. 1994).
       11
            Id. (citing Herrera, 506 U.S. at 417).
                                                                 FOURNIER & DOWDEN—5

show that no rational trier of fact could find applicant guilty beyond a reasonable doubt in

light of newly discovered evidence is an applicant entitled to relief on a factual innocence

claim.12

       Two years after Holmes, the Supreme Court’s “actual innocence” assumption 13 was

firmly established into Texas habeas corpus law as a path to habeas relief. This Court’s

opinion in Ex parte Elizondo extended the potential due process violation from death-penalty

cases to every case involving incarceration.14 Elizondo also established an applicant’s burden

to obtain actual-innocence relief: “The petitioner must show by clear and convincing

evidence that no reasonable juror would have convicted him in light of the new evidence.” 15

Because punishment of an innocent man violates the Due Process Clause of the United States

Constitution, an applicant is entitled to relief if he can “prove by clear and convincing

evidence to this Court, in the exercise of its habeas corpus jurisdiction, that a jury would




       12
            Id. at 398; Ex parte Franklin, 72 S.W.3d 671, 676 (Tex. Crim. App. 2002).
       13
          See Ex parte Elizondo, 947 S.W.2d 202, 206–207 (Tex. Crim. App. 1996)
(“Most justices of the Supreme Court, including Justice White, refused to hold that
Herrera’s claim of actual innocence was independently cognizable in a federal habeas
corpus proceeding. Indeed, they specifically declined to decide that question because the
facts plainly showed Herrera to be guilty of the crime under any standard. The Court
simply reasoned that, even if it were unconstitutional to execute an innocent person, it
would not be unconstitutional to execute Herrera since he was not innocent.”).
       14
            Id. at 204.
       15
            Id. at 209 (emphasis in original).
                                                                FOURNIER & DOWDEN—6

acquit him based on his newly discovered evidence.”16 Elizondo’s statement was clear: To

be eligible for actual innocence relief, an applicant must “unquestionably establish” his

factual innocence through newly discovered evidence.17

       Subsequent precedent reaffirmed Elizondo’s fact- and conduct-centric notions of

actual innocence. In Ex parte Rich, this Court rejected the characterization of Rich’s “actual

innocence” claim that an improper enhancement rendered him actually innocent as to the

improper enhancement paragraph.18 Although we granted Rich relief because his sentence

was illegal, this Court stated that it is incorrect to treat Rich’s claim as involving actual

innocence. The Court so held because there was no evidence that Rich was innocent of the

offense used to enhance his punishment, and the mischaracterization of the offense used for

enhancement did not make Rich innocent of the primary offense for which he was charged.19

Further, Rich’s claims did not involve the “traditional hallmarks of actual innocence

claims—newly discovered evidence showing that the defendant is being wrongfully

imprisoned for a crime that he did not commit.” 20




       16
            Id.
       17
            Id.
       18
            Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006).
       19
            Id. at 515.
       20
            Id.
                                                                 FOURNIER & DOWDEN—7

       Our opinion in Wilson v. State21 elaborated on Rich’s holding. In a nearly unanimous

opinion written by Judge Johnson, the Court stated, “We hold that the term ‘actual

innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did

not, in fact, commit the charged offense or any of the lesser-included offenses.” 22 Looking

back to its federal origins, the Wilson Court clarified that a bare actual innocence claim does

not countenance“legal innocence”—the notion that, despite committing the alleged conduct,

the applicant is nonetheless not guilty.23

       The Wilson clarification was at the center of our recent opinion in Ex parte Mable, in

which we denied an applicant’s actual innocence claim when newly discovered forensic

testing revealed that the substances forming the basis of Mable’s drug possession conviction

contained no illicit substances.24 Although newly discovered evidence and facts were

pleaded, we again looked to the applicant’s conduct: “In this case, the applicant pleaded

guilty to possession of a controlled substance. Therefore, it is possible that he intended to

possess a controlled substance (which is not alone an offense) or that he attempted to possess




       21
            State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010).


       22
            Id. at 598.
       23
        See id. at 598–99. But see Ex parte Sparks, 206 S.W.3d 680, 683 (Tex. Crim.
App. 2006).
       24
            Ex parte Mable 443 S.W.3d 129, 130–31 (Tex. Crim. App. 2014).
                                                               FOURNIER & DOWDEN—8

a controlled substance (which is a lesser included offenses of possession).” 25      In his

application, Mable did not contest that newly discovered evidence proved that he did not

commit or intend to commit a significant portion of the charged conduct, specifically the

possession element.

       “A prototypical example of ‘actual innocence’ in a colloquial sense is the case where

the State has convicted the wrong person of the crime.”26 An actual innocence claim must

be accompanied by new “affirmative evidence of the applicant’s innocence.”27 In the past we

have evaluated the merits of actual innocence claims supported by new evidence in the form

of witness recantations,28 scientific testing like DNA,29 and new expert testimony.30

Applicants’ requests for relief on a bare actual innocence basis do not allege any evidence



       25
            Id.
      26
            Sawyer v. Whitley, 505 U.S. 333, 340 (1992).
      27
            Ex parte Franklin, 72 S.W.3d at 678.
      28
           See, e.g., Ex parte Navarijo, 433 S.W.3d 558, 564 (Tex. Crim. App. 2014)
(newly discovered recantation from sexual assault victim); Ex parte Thompson, 153
S.W.3d 416, 420–21 (Tex. Crim. App. 2005) (granting relief on actual innocence as a
result of sexual assault victim’s recantation); Ex parte Tuley, 109 S.W.3d 388, 395–97
(Tex. Crim. App. 2002) (victim recantation).
      29
        See, e.g., Ex parte Holloway, 413 S.W.3d 95, 96–97 (Tex. Crim. App. 2013)
(DNA testing on weapon excluded applicant).
      30
           See, e.g., Ex parte Jimenez, 364 S.W.3d 866, 874 (Tex. Crim. App. 2012) (four
experts’ testimony contesting State’s theory that defendant committed the conduct
causing death); Ex parte Spencer, 337 S.W.3d 869, 878–80 (Tex. Crim. App. 2011)
(forensic optometrist’s testimony that witnesses could not have seen what they testified to
at trial).
                                                                 FOURNIER & DOWDEN—9

establishing that had it been presented at trial, Applicants would not have been found guilty

of the offense they were convicted of. Applicants do not contest that they engaged in the

conduct for which they were convicted. The conduct on which the criminal prosecution was

based still exists as a matter of historical fact. Instead, Applicants’ contentions rest solely

on a legal basis—the statute under which they were convicted is unconstitutionally broad in

violation of the First Amendment. This claim is much different than pointing to new

evidence supporting an argument that Applicants did not commit the conduct for which they

were convicted. Lo, as matter of law, removed the criminal sanctions once affixed to

Applicants’ conduct because the statute criminalizing it was unconstitutionally drafted. Lo

was decided on the heightened standard we use to measure a statute’s language that restricts

free speech. Our opinion in Lo is irrelevant to whether Applicants’ conduct was in fact

committed. We conclude that Applicants do not assert true claims of actual innocence for

which relief may be granted; they are decidedly different.

       By relying on the statute’s overbreadth as a constitutional impediment to their

convictions, Applicants’ claims, if anything, more closely resemble Schlup v. Delo 31 claims

made in federal court or claims made in Texas pursuant to Code of Criminal Procedure

Article 11.07, § 4(a)(2) or Article 11.071, § 5(a)(2)32 as a procedural vehicle to get merits


       31
            513 U.S. 298 (1995).
       32
          T EX. C ODE C RIM. P ROC. arts. 11.07, § 4(a)(2), 11.071, § 5(a)(2) (stating that a
court may not consider a subsequent writ application unless the application contains
specific facts establishing that “by a preponderance of the evidence, but for a violation of
the United States Constitution no rational juror could have found the applicant guilty
                                                               FOURNIER & DOWDEN—10

review for procedurally barred claims. But Applicants’ claims are not found in subsequent

applications; these are Applicants’ initial writs.

       In Schlup, the United States Supreme Court held that Schlup could assert a procedural

form of “actual innocence” to overcome the procedural bar against raising subsequent habeas

corpus claims in federal court.33 The Court made clear that Schlup’s “constitutional claims

are based not on his innocence, but rather on his contention that the ineffectiveness of his

counsel, . . . and the withholding of evidence by the prosecution, . . . denied him the full

panoply of protections afforded to criminal defendants by the Constitution.” 34 Schlup’s claim

of actual innocence, the Court noted, was offered only to bring him within the “narrow class

of cases . . . implicating a fundamental miscarriage of justice,” a long-standing exception to

the federal procedural bar to subsequent habeas claims.35 The Court contrasted Schlup’s

actual innocence claim from Herrera’s: “[Herrera] advanced his claim of innocence to

support a novel substantive constitutional claim, namely, that the execution of an innocent

person would violate the Eighth Amendment.” 36

       Of course, Schlup’s “actual innocence” gateway for review of federally barred claims




beyond a reasonable doubt.”).
       33
            Schlup, 513 U.S. at 326–29
       34
            Id. at 314 (in-text citations omitted).
       35
            Id. (citing McClesky v. Zant, 499 U.S. 467, 494 (1991)).
       36
            Id.
                                                                FOURNIER & DOWDEN—11

serves only as a historical footnote to Texas’s abuse-of-the-writ statutes found in Article

11.07, § 4(a)(2) and Article 11.071, § 5(a)(2), as those statutes appear to have been patterned

after it.37 Schlup does not apply in Texas,38 and coincidently, like Herrera, does not provide

an avenue for relief in federal courts either.39 Because Applicants’ claims are made in initial

applications, we are not faced with procedurally barred claims, nor the obligation to measure

them against our subsequent-application statutes.       Applicants need not overcome any

procedural hurdles, and their Lo claims may be addressed outright.

       Applicants refer us to precedents holding that federal petitioners are “actually

innocent” when the statute under which they were convicted is declared unconstitutional.

Because they all deal with actual innocence as a way to avoid procedural default under

federal law, we find them inapplicable. In Bousley v. United States, petitioner Bousley

challenged his conviction of using a firearm in violation of 18 U.S.C. § 924(c)(1) claiming

that his plea was involuntary because he was misinformed of the offense’s elements.40

Bousley’s argument relied on the Supreme Court’s interpretation of the word “use” in the


       37
            See Ex parte Blue, 230 S.W.3d 151, 158, 160 (Tex. Crim. App. 2007).
       38
         Ex parte Villegas, 415 S.W.3d 885, 887–88 (Tex. Crim. App. 2013) (Price, J.,
concurring).
       39
         See, e.g., House, 547 U.S. at 555; In re Swearingen, 556 F.3d 344, 348 (5th Cir.
2009); Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004); Johnson v. Bett, 349 F.3d
1030, 1038 (7th Cir. 2003); Rouse v. Lee, 339 F.3d 238, 255 (4th Cir. 2003); David v.
Hall, 318 F.3d 343, 347–48 (1st Cir. 2003); Burton v. Dormire, 295 F.3d 839, 848 (8th
Cir. 2002); LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001).
       40
            Bousley v. United States, 523 U.S. 614, 617–18 (1998).
                                                                  FOURNIER & DOWDEN—12

statute five years after his conviction.41 The Court found Bousley’s claim procedurally

defaulted, and held that if Bousley could establish “that the constitutional error in his plea

colloquy ‘has probably resulted in the conviction of one who is actually innocent,’” only then

could his claim be entertained.42 The Court did not, as Applicants seems to suggest, find that

Bousley was actually innocent under Schlup or that his plea was invalid; the Court remanded

to permit Bousley the opportunity to make that showing.43              Bousley stands for the

unremarkable principle that actual innocence, if proved, can serve as a claim to overcome the

federal courts’ bar on successive habeas petitions.

       Applicants’ citations to other federal precedent are equally unpersuasive. Applicants

rely heavily on Alexander v. Johnson, a magistrate’s opinion holding that because petitioner’s

parole was revoked on the grounds of a facially unconstitutional statute, he “is by necessity

actually innocent of a violation of law.”44 In so holding, the judge purportedly applied Fifth

Circuit and Supreme Court precedent. In granting relief, the magistrate’s opinion made no

mention of a bare actual innocence claim and did not grant relief on that basis. The inclusion

of the term “actually innocent” is found in its discussion of whether equitable tolling

permitted the applicant to file his habeas petition outside the federal statute’s one-year statute


       41
         Id. at 616. See Bailey v. United States, 516 U.S. 137, 144 (1995) (holding that
“use” requires the Government to show “active employment of the firearm.”).
       42
            Bousley, 523 U.S. at 623.
       43
            Id. at 623–24.
       44
            Alexander v. Johnson, 217 F. Supp.2d 780, 792 (S.D. Tex. 2001).
                                                                FOURNIER & DOWDEN—13

of limitations.45 Like in Bousley, the magistrate’s opinion, and the authority it relies upon,

is only relevant to successive habeas petitions in federal court.

       In Reyes-Requena v. United States, the Fifth Circuit also used the term actual

innocence, but did so in the context of whether Reyes-Requena’s claim properly fell within

18 U.S.C. § 2255(h)’s “savings clause.”46 Reyes-Requena spoke only in terms of how a

particular claim may be pursued after an initial habeas petition and did not grant habeas

relief. Instead, the court remanded the matter to the district court to determine the merits of

Reyes-Requena’s claim.47 Citing to Hiett v. United States48 and Davis v. United States49 also

does not help Applicants’ request for actual innocence relief. Hiett involved a direct appeal

of a federal conviction under a statute that criminalized using the mail to solicit business in

connection with securing a divorce in a foreign country.50 The Fifth Circuit found the statute




       45
            Id. at 791–92.
       46
          Reyes-Requena v. United States, 243 F.3d 893, 904–905 (5th Cir. 2001). See 18
U.S.C. § 2255(h) (2000) (permitting second or successive motions only if the motion
contains “(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant guilty of the offense; or (2) a
new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”).
       47
            Reyes-Requena, 243 F.3d at 904–906.
       48
            415 F.2d 664, 666 (5th Cir. 1969).
       49
            417 U.S. 333, 346 (1974).
       50
            Hiett, 415 F.2d at 665.
                                                                FOURNIER & DOWDEN—14

unconstitutionally vague and reversed the conviction.51 Davis involved a federal habeas

petition, but “[t]he sole issue before the Court . . . [was] the propriety of the Court of

Appeals’ judgment that a change in the law of that Circuit after the petitioner’s conviction

may not be successfully asserted by him in a § 2255 proceeding.” 52 While it expressed no

view on the merits of the claim, the Court held that Davis could proceed under § 2255 with

his claim that his underlying conduct was not criminal because the administrative order that

criminalized his conduct was unconstitutional.53 This holding is inapplicable to Applicants’

actual innocence claims.

                                 Relief under Ex parte Lo

       Although we find against Applicants in their claims for actual innocence relief,

Applicants are entitled to relief under Lo and our subsequent decision in Ex parte Chance.54

In a short per curiam opinion, we granted Chance relief based on our judgment in Lo despite

Chance’s failure to contest the statute’s constitutionality at trial or on appeal.55 Consistent


       51
            Id. at 673.
       52
            Davis, 417 U.S. 341 (1974).
       53
          Id. at 346–47 (“If this contention is well taken, then Davis’ conviction and
punishment are for an act that the law does not make criminal. There can be no room for
doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’
and ‘present(s) exceptional circumstances’ that justify collateral relief under § 2255.”).
       54
         439 S.W.3d 918 (Tex. Crim. App. 2014). Accord Reyes v. State, 753 S.W.2d
382, 383 (Tex. Crim. App. 1988) (holding that an unconstitutional statute is void from its
inception).
       55
            See generally Chance, 439 S.W.3d at 918.
                                                            FOURNIER & DOWDEN—15

with Chance, we set aside Fournier’s and Dowden’s judgments of conviction in Cause

Numbers 1151921 and 1300886, respectively, and remand those causes to the respective trial

courts to dismiss the indictments.




DELIVERED: October 28, 2015

PUBLISH
