                                                                           WR-82,772-02
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 2/13/2015 8:39:26 AM
                                                            Accepted 2/13/2015 9:01:07 AM
                                                                              ABEL ACOSTA
                                                                                      CLERK
                Nos. 82,772-01, 82,772-01 and 82,772-03
                                                           RECEIVED
                                                    COURT OF CRIMINAL APPEALS
EX PARTE                         §    IN THE   COURT OF CRIMINAL
                                                           2/13/2015
                                                      ABEL ACOSTA, CLERK
                                 §
DONALD LEE GRAY                  §    APPEALS OF TEXAS


                          BRIEF OF APPLICANT


     To the Honorable Judges of the Court of Criminal Appeals:

     In 2006, Donald Lee Gray was convicted of three violations of

Texas Penal Code § 21.15, Improper Photography, which has since been

held unconstitutional by this Court. He respectfully asks the Court to

vacate his convictions.
                IDENTITY OF ALL PARTIES AND COUNSEL

Petitioner:

       Mr. Donald Lee Gray
       Former inmate no. 1460267
       Tyler, TX
       c/o Mr. Volberding

       Mr. James W. Volberding               Attorney for habeas
       First Place
       100 E. Ferguson Street
       Suite 500
       Tyler, TX 75702
       (903) 597-6622
       (866) 398-6883 (fax)
       Jamesvolberding@gmail.com

Respondent:

       Hon. Mr. Matt Bingham
       Hon. Mr. Mike West
       Smith County District Attorney
       101 N. Broadway, Fourth Floor
       Tyler, TX 75702

District Court :

       Hon. Judge Jack Skeen, Jr.
       241st District Court
       Courthouse
       101 N. Broadway, 2nd Floor
       Tyler, TX 75702




	                                  ii	  
                                                    CONTENTS

Identity of All Parties and Counsel........................................................... ii
Authorities ..................................................................................................iv
Statement of Jurisdiction ...........................................................................1
Statement of the Case.................................................................................1
Ground for Habeas Corpus Relief ..............................................................3

       Donald Lee Gray was convicted of violation of Texas Penal Code §
       21.15(b)(1), which on its face violates the First Amendment to the
       U.S. Constitution and has been held so by the Court of Criminal
       Appeals. ....................................................................................................3

       I. Penal Code section 21.15(b)(1) has been held unconstitutional by
       the Court of Criminal Appeals. ...............................................................3

       II. Mr. Gray was convicted of section 21.15(b)(1) violations and is
       therefore entitled to habeas relief. ..........................................................6

       III. The record in this application is sufficient for the Court to vacate
       the convictions. .........................................................................................7

       IV. Alternatively, Gray requests dismissal without prejudice to re-
       filing, or remand to consider affidavit and testimony..........................13
Conclusion .................................................................................................14
Relief ...................................................... Error! Bookmark not defined.




	                                                         iii	  
                                          AUTHORITIES
	  

CASES
Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) ..............7, 9, 10
Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) ...............11, 12
Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) ...............10
Ex parte Thompson, 442 S.W.3d 325, 2014 Tex. Crim. App. LEXIS 969
 (Tex. Crim. App. Sept. 17, 2014). ....................................................4, 5, 9
Shohreh v. State, 2014 Tex. App. LEXIS 12216 (Tex. App. -- Dallas Nov.
 10, 2014, no pet.) ................................................................................6, 10
Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008) .................13

CONSTITUTION

Tex. Const., Art. V, § 8 ………....……………………………………… passim

STATUTES

Tex. Code Crim. Proc., Art. 11.07 (2014) ……...………………….… passim
Tex. Penal Code § 21.15 (2014) …...…….………………………….… passim




	                                                 iv	  
                     STATEMENT OF JURISDICTION

       Gray’s application was submitted pursuant to Texas Constitution,

Article V, § 8 (amended application), and article 11.07 of the Texas Code

of Criminal Procedure (original and amended application).

                        STATEMENT OF THE CASE

       Mr. Gray was indicted in Tyler November 15, 2006, in cause

numbers 241-2620-06, 241-2621-06, 241-2622-06 for violation of Texas

Penal Code section 21.15(b)(1), improper photography or visual

recording. See Exhibit 3, Habeas App.

       On September 25, 2007, he pled guilty in each case pursuant to a

plea agreement and was sentenced to confinement for one year in a

state jail, and ordered to pay court costs of $276 and other fees of $30.

See Exhibit 4, Habeas App. He did not appeal to the Court of Appeals or

the Court of Criminal Appeals.

       On December 19, 2014, he filed an 11.07 writ application seeking

to vacate his section 21.15 convictions in light of the Court’s decision in

Ex parte Thompson, that the statute facially violated the First

Amendment. See Ex parte Gray, Habeas Nos. 241-2620-06-A, 241-2621-

06-A, 241-2622-06-A (Smith Co. Dist. Crt.).



	                                  1	  
                 On January 8, 2015, the State responded, asserting that article

11.07 does not convey jurisdiction for one no longer in custody and

arguing that Gray failed to supply a requisite affidavit confirming he is

still retrained by his three felony convictions.

                 On January 12, the court signed proposed findings and

conclusions supplied by the State.

                 On January 15, Gray amended his application to seek relief under

article V, section 8 of the Texas Constitution.

                 On January 20, Gray filed his affidavit explaining how the felony

convictions continue to restrain his activities.

                 On January 22, the district clerk sent the file to the Court.1

                 This is Gray’s first habeas action.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	  The January 12 signed F&Cs were not sent to Gray’s counsel and were not

recorded by the clerk on the docket sheet for several days. Smith County does not
possess electronic filing and notification for criminal cases. Consequently, Gray did
not learn of the signed F&Cs until after filing his January 20 affidavit, when the
Clerk of this Court notified Gray of receipt of the records.	  

	                                                                                                              2	  
                       GROUND    FOR   HABEAS CORPUS RELIEF

            In his application, Gray presents a single ground for relief:

            Donald Lee Gray was convicted of violation of Texas Penal
            Code § 21.15(b)(1), which on its face violates the First
            Amendment to the U.S. Constitution and has been held so
            by the Court of Criminal Appeals.

       I.      Penal Code section 21.15(b)(1) has been held
               unconstitutional by the Court of Criminal Appeals.

            In 2001, the Texas Legislature enacted Penal Code section 21.15

to criminalize photographs taken in public to gratify the photographer’s

sexual desire:

            Improper Photography or Visual Recording

            (a) In this section, “promote” has the meaning assigned by Section
            43.21.

            (b) A person commits an offense if the person:

                  (1) photographs or by videotape or other electronic means
                      visually records another:

                        (A) without the other person's consent; and

                        (B) with intent to arouse or gratify the sexual
                        desire of any person; or

                  (2) knowing the character and content of the photograph or
                      recording, promotes a photograph or visual recording
                      described by Subdivision (1).

            (c) An offense under this section is a state jail felony.


	                                          3	  
       (d) If conduct that constitutes an offense under this section also
           constitutes an offense under any other law, the actor may be
           prosecuted under this section or the other law.

       Tex. Pen. Code § 21.15 (2011).

       Last year the Court held that section 21.15(b)(1) violates the First

Amendment. Ex parte Thompson, 442 S.W.3d 325, 2014 Tex. Crim. App.

LEXIS 969 (Tex. Crim. App. Sept. 17, 2014).

       Thompson involved a man charged with 26 counts of improper

photography or visual recording under section 21.15(b)(1). Each count

alleged that Thompson, “with intent to arouse or gratify the sexual

desire of the Defendant, did by electronic means record another . . . at a

location that was not a bathroom or private dressing room.” Thompson,

2014 Tex. Crim. App. LEXIS 969 * 3.

       Tracing federal law, the Court “conclude[d] that photographs and

visual recordings are inherently expressive,” and “that a person’s

purposeful creation of photographs and visual recordings is entitled to

the same First Amendment protection as the photographs and visual

recordings themselves.” Thompson, 2014 Tex. Crim. App. LEXIS 969 *

15, 18. The Court recognized that the government was attempting to

prosecute thought crimes: “Banning otherwise protected expression on


	                                      4	  
the basis that it produces sexual arousal or gratification is the

regulation of protected thought, and such a regulation is outside the

government’s power[].” Thompson, 2014 Tex. Crim. App. LEXIS 969 *

21 (footnote and quote omitted). The Court rejected the State’s

insistence that “without consent” be interpreted broadly to remove the

statute from First Amendment concern. Id. * 28. Consequently, the

Court “conclude[d] that the improper-photography statute implicates

First Amendment expression on its face.” Id. * 35.

       Having found that section 21.15(b)(1) triggers First Amendment

concerns, and that the statute’s criminalization is content based, the

Court reached for the strict scrutiny standard of review, which the

statute fails because “less restrictive alternatives would adequately

protect the substantial privacy interests that may sometimes be

threatened by nonconsensual photography.” Id. * 48-49.

       Consequently, after a careful critique, the Court held that “to the

extent that it proscribes taking photographs and recording visual

images, Subsection (b)(1) of the statute is facially unconstitutional in

violation of the freedom of speech guarantee of the First Amendment.”

Thompson, 2014 Tex. Crim. App. LEXIS 969 * 1, 53.



	                                   5	  
             One intermediate court has so far followed Thompson, dismissing

a pre-Thompson conviction. Shohreh v. State, 2014 Tex. App. LEXIS

12216 (Tex. App. -- Dallas Nov. 10, 2014, no pet.).

       II.     Mr. Gray was convicted of section 21.15(b)(1) violations
               and is therefore entitled to habeas relief.

             All three of Gray’s indictments track the statutory language of

section 21.15(b)(1). The indictment in case number 241-2620-06 charged

Gray:

             that on or about the 19th day of August, 2006, and anterior to
             the presentment of this indictment, in the County of Smith
             and State of Texas, DONALD GRAY did then and there,
             with intent to arouse or gratify the sexual desire of the
             defendant, by digital video recorder, visually record another,
             namely, [B.W.], without the consent of the said [B.W.] . . . .

             Similarly, the indictment in case number 241-2621-06 charged:

             that on or about the 19th day of August, 2006, and anterior to
             the presentment of this indictment, in the County of Smith
             and State of Texas, DONALD GRAY did then and there,
             with intent to arouse or gratify the sexual desire of the
             defendant, by digital video recorder, visually record another,
             namely, [D.W.], without the consent of the said [D.W.] . . . .

             Similarly, the indictment in case number 241-2622-06 charged:

             that on or about the 19th day of August, 2006, and anterior to
             the presentment of this indictment, in the County of Smith
             and State of Texas, DONALD GRAY did then and there,
             with intent to arouse or gratify the sexual desire of the



	                                         6	  
         defendant, by digital video recorder, visually record another,
         namely, [S.A.], without the consent of the said [S.A.] . . . .

         Mr. Gray was not prosecuted for any other offense other than

violation of section 21.15(b)(1).

         As Gray was prosecuted solely for violation of Penal Code section

21.15(b)(1), now held unconstitutional and therefore unenforceable, Mr.

Gray is entitled to habeas relief. The Court has held that his guilty plea

and failure to challenge or appeal earlier do not bar relief. Ex parte

Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).

       III. The record in this application is sufficient for the Court
            to vacate the convictions.

         In its response, the State argued, and its proposed and signed

F&Cs agree, that a habeas applicant cannot vacate his or her felony

conviction of a subsequently invalidated penal statute unless the

applicant provides an affidavit testifying that he or she continues to

suffer some additional restraint, above and beyond the disapprobation

of a felony conviction and violation of constitutional rights.

         Our research indicates that no such additional proof of continuing

restraint is required when the only relief sought is invalidation of a

conviction based on a statute previously held to violate the First



	                                     7	  
Amendment on its face. But anyway, after receiving the State’s

response, Gray filed such an affidavit, explaining how the three

convictions continue to retrain him.

       A.     Gray has filed an affidavit attesting to continuing
              restraints.

       The record contains Gray’s affidavit, listing continued restraints

created by his three convictions:

            • The convictions bar him under federal and state law from
              owning or possessing a firearm. Consequently, he can no
              longer hunt, one of the loves of his life.

            • He would like to, but cannot, apply for a concealed handgun
              license for self-protection.

            • He served on a jury once, and would like to do so again, but
              cannot with these convictions.

            • He would like to serve on a grand jury, but cannot.

            • He would like to travel internationally, but many countries
              will not issue visas to a convicted felon.

            • He has suffered social stigma and suspicion because of the
              convictions and continues to do so.

            • The convictions continue to cause him anxiety and dread
              with measurable health effects.

            See Aff. of Mr. Gray (Jan. 20, 2015).

       These and scores of other restraints are placed on convicted felons

as a matter of law. Gray urges the Court to hold that felony convictions



	                                      8	  
impose restraints as a matter of law when an applicant seeks relief

from a penal code violation declared unconstitutional. 2

                 Further, the convictions themselves constituted a governmental

restraint on Gray. His First Amendment rights were violated in 2006

with his arrest and prosecution under a statute, which this Court said

is “facially unconstitutional in violation of the freedom of speech

guarantee of the First Amendment.” Thompson, 2014 Tex. Crim. App.

LEXIS 969 * 1. As long as those convictions remain, his First

Amendment rights continue to be violated and his liberty restrained.

                 B.               The F&Cs are incorrect. This Court does not appear to
                                  require proof of continuing restraint when seeking
                                  habeas    relief   from    convictions   based    on
                                  unconstitutional statutes.

                 In Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014), the

Court vacated a conviction under article 11.07 for violation of a statute
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2	  See, e.g., Tex. Ag. Code § 76.108 (felon barred from herbicide license); Tex. Alcoh.

& Bev. Code §§ 11.46, 11.61, 25.06, 61.42, 61.43, 61.71, 61.74, 69.06 (felon barred
from alcohol license); Tex. Bus. & Comm. Code § 51.161 (felon required to disclose
for registration of business opportunity); Tex. Bus. Organ. Code § 11.301 (felon
subject to termination of corporate entity); Tex. Civ. Prac. & Rem. Code § 145.003
(felon can trigger loss of non-negligent presumption of in-home service); Tex. Educ.
Code § 22.084 (felon barred from school buses); § 22.085 (felon barred from school
employment); § 56.404, 56.304 (drug felon barred from student financial aid or
grants); Tex. Fam. Code § 6.004 (felon may lose marriage); Tex. Finance Code §
371.251 and Tex. Admin. Code Rule 7, § 85.601(c) (felon can be barred from pawn
dealer license); Tex. Finance Code § 156.303(a)(4) (felon barred as loan originator);
Tex. Occupations Code §§ 108.002, 164.153, 201.502, et seq. (long list of occupations
barred to felons).	  

	                                                                                                             9	  
subsequently held unconstitutional (online solicitation of minor)

without commenting on the need to prove continuing restraint following

service and discharge of the sentence.

       Judge Cochran elegantly explained that “a person may always

obtain relief from an indictment or a conviction based on a penal statute

that has been previously declared unconstitutional. He may obtain

relief in a pretrial motion or writ; he may obtain relief on direct appeal;

he may obtain relief in a habeas corpus proceeding, and it matters not

whether he had ever previously objected to the statute or its application

to him. The unconstitutional statute has disappeared in a puff of smoke.

No one can be convicted for a non-existent crime and no prior conviction

based upon that unconstitutional statute is valid.” Ex parte Chance, 439

S.W.3d at 919 (Cochran, J., concurring); see, e.g., Shohreh v. State, 2014

Tex. App. LEXIS 12216 (Tex. App. – Dallas 2014, no pet.) (applying

Thompson and dismissing section 21.15 conviction on direct appeal).

       Although the applicant was in custody, Chance did not comment

at all on the case cited by the State, and relied upon by the district

court to deny relief, Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim.

App. 2010), also written by Judge Cochran.



	                                  10	  
       Harrington dealt with an altogether different situation, one in

which Harrington was seeking article 11.07 relief on a claim of

ineffective assistance of counsel. Unlike Gray, he was not asserting that

he was convicted of a statute previously declared unconstitutional. That

makes all the difference. The Court requires someone like Harrington,

who had served his sentence, to prove that he remains under some

continuing restraint or loss of liberty in order to satisfy article 11.07’s

confinement requirement. But for someone like Gray, who seeks

ratification that his convictions disappeared with Thompson in “a puff

of smoke,” no such requirement is necessary.

       Consequently, Ex parte Chance appears to end debate that Gray is

required by article 11.07 to prove some additional restraint on his

liberty when seeking to vacate his section 21.15 convictions in light of

declaration   in   Thompson    that       the   statute   violates   the   First

Amendment.

       C.   Gray also sought habeas relief under Article V,
            Section 8 of the Texas Constitution, a second source of
            jurisdiction.

       In Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991), the

Court found jurisdiction under Texas Constitution, article V, section 8,



	                                    11	  
which grants plenary writ authority to district courts.

       Hargett filed an article 11.07, section 2 writ application, evidently

on two claims: that the State breached the plea agreement and that he

received ineffective assistance of counsel. This Court dismissed “because

an applicant must be ‘in custody’ before an Art. 11.07 writ is properly

before this Court.” Id. at 867.

       Hargett immediately “filed an amendment to his application to

the trial court,” sought habeas relief under Texas Constitution, article

V, section 8, and “alleged continued restraint in the form of impairment

of his right to military-retirement benefits.” Hargett, 819 S.W.2d at 867.

       This Court approved such an amendment procedure, commenting

that Hargett’s “decision to pursue post-conviction relief under Tex.

Const., Art. V, § 8 in the district court overcame this obstacle.” Id.

       Gray followed the same procedure. When the State filed its

response, challenging jurisdiction and lack of evidence of restraint,

Gray amended his application and designated alternative jurisdiction of

article V, section 8. See Gray Amend. Pet. (Jan. 15, 2015) (first page).

       The signing of the F&Cs on January 12 did not cut off Gray’s

ability to amend his petition. He followed precisely the procedure



	                                   12	  
approved in Hargett of amending in the same cause number, alleging

article V, section 8. Just as in Hargett, the district court did not issue

the writ; instead the court instead denied an evidentiary hearing,

expansion of the record, and relief. Cf. Hargett, 819 S.W.2d at 868; see

generally Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008)

(discussing interplay between article 11.072, article V, section 8 and

appellate jurisdiction).

       IV.   Alternatively, Gray moves for dismissal without
             prejudice to re-filing, or remand to consider affidavit
             and testimony.

         If the Court believes it is bound by the record before the signing of

the F&Cs --- and we know of no precedent or rule that imposes such a

restriction --- then Gray respectfully asks the Court to remand for a

hearing on the application and affidavit, followed by F&Cs to address

them. Alternatively, he asks the Court to dismiss the application

entirely, without a ruling on the merits, and without prejudice to re-

filing so he can re-file and attach the affidavit in a revised application.

         To protect jurisdiction of his article V, section 8 amended

application, Gray filed a notice of appeal with the district clerk

February 11, the last day before expiration of the thirty-day appeal



	                                     13	  
period following the court’s January 12 F&Cs and denial. In light of

Hargett’s determination that courts of appeal possess jurisdiction over

article V, section 8 habeas applications, Gray did not want to risk loss of

appellate jurisdiction over that aspect of his application and bar to

filing another one. Gray’s notice of appeal does not deprive this Court of

jurisdiction over his article 11.07 application.

                               CONCLUSION

       Donald Lee Gray has met his burden of proof for habeas relief.

       1. He has proved that he was convicted of Texas felonies;

       2. He has proved that he was convicted of a Penal Code statute
          held unconstitutional;

       3. He satisfies the requirements of Texas Constitution, Article V,
          § 8, and Code of Criminal Procedure article 11.07.

       4. He is not procedurally barred from relief.

                                  RELIEF

       WHEREFORE, Gray respectfully asks that a writ of habeas

corpus be issued to the Smith County 241st District Court and the

Smith County District Clerk, ordering Mr. Gray’s convictions vacated

and his indictments dismissed. Mr. Gray prays for all other relief

required by law or equity.



	                                   14	  
                                Respectfully submitted this 12 day of
                                February 2015,
                                /s/ James W. Volberding
                                ______________________________
                                JAMES W. VOLBERDING
                                SBN: 00786313

                                First Place
                                100 E. Ferguson Street
                                Suite 500
                                Tyler, Texas 75702
                                (903) 597-6622
                                (866) 398-6883 (fax)
                                e-mail: jamesvolberding@gmail.com

                                Counsel for Donald Lee Gray

                     Certificate of Compliance

     Pursuant to Rule 73.1(f), I hereby certify that this pleading
contains 2,836 words, measured in MS Word for MAC version 14.3.6,
from the statement of jurisdiction through the prayer.
                                  /s/ James W. Volberding
                                  ____________________________________
                                  JAMES W. VOLBERDING




	                               15	  
                       CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of this pleading has
been delivered this 12 day of February 2015 to:

       Smith County District Attorney
       101 N. Broadway, Fourth Floor
       Tyler, TX 75702

by the following means:

_____            By U.S. Postal Service Certified Mail, R.R.R.
_____            By First Class U.S. Mail
_____            By Special Courier _______________________
_X___            By Hand Delivery
_____            By Fax before 5 p.m.
_____            By Fax after 5 p.m.
_____            By Electronic Filing.
                                  /s/ James W. Volberding
                                  ____________________________________
                                  JAMES W. VOLBERDING




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