            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                   NO. WR-82,867-02


                        EX PARTE DAVID RAY LEA, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 52758-A IN THE 239TH DISTRICT COURT
                          FROM BRAZORIA COUNTY


      Y EARY, J., filed a dissenting opinion.

                               DISSENTING OPINION

      The Court today grants post-conviction habeas corpus relief on the grounds that

Applicant was convicted under a statute that was later declared to be unconstitutionally

overbroad, namely, Texas’ improper photography statute. See Majority Opinion (granting

relief based upon Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)). However,

I believe the argument I made in my dissenting opinion in Ex parte Fournier, while

addressing a different statute—Texas’ Online Solicitation of a Minor statute—still applies

to Applicant in this case. See Ex parte Fournier, 473 S.W.3d 789, 800-805 (Tex. Crim. App.
2015) (Yeary, J., dissenting) (arguing that the Court should not grant retroactive relief in

post-conviction habeas corpus proceedings without deciding whether applicants who were

convicted under a statute that has been held to be unconstitutionally overbroad should have

to show that the statute was unconstitutional as applied to them). Therefore, I dissent for the

reasons stated in my dissenting opinion in Fournier. See Ex parte Chang, ___ S.W.3d ___,

No. WR-82,712-01, 2016 WL 1161092 (Tex. Crim. App. Mar. 23, 2016) (Yeary, J.,

dissenting).




Filed: April 6, 2016
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