                                                                       ACCEPTED
                                                                  03-14-00818-CR
                                                                          4576568
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                            3/20/2015 10:45:46 AM
                                                                 JEFFREY D. KYLE
                                                                            CLERK
                 NO. 03-14-00818-CR

                                                 FILED IN
                                          3rd COURT OF APPEALS
          IN THE THIRD COURT OF    APPEALS AUSTIN, TEXAS
                   AUSTIN, TEXAS          3/20/2015 10:45:46 AM
                                              JEFFREY D. KYLE
                                                   Clerk

               CLINTON DAVID BECK,
                              Appellant
                        v.

               THE STATE OF TEXAS,
                               Appellee

                 Appealed from the
                 207th District Court
                Comal County, Texas

             BRIEF FOR THE APPELLANT


                  ZIMMERMANN LAVINE
                        & ZIMMERMANN, P.C.
                  770 South Post Oak Lane, Suite 620
                  Houston, Texas 77056
                  (713) 552-0300 * (713) 552-0746 fax

                  TERRI R. ZIMMERMANN
                  State Bar No. 00797883
                  Terri.Zimmermann@ZLZSlaw.com

                  JACK B. ZIMMERMANN
                  State Bar No. 22266500
                  Jack.Zimmermann@ZLZSlaw.com

                  Attorneys for the Appellant,
                  CLINTON DAVID BECK

THE APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
                IDENTITY OF PARTIES AND COUNSEL

     Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all

interested parties is provided below:

     The Appellant:

           Mr. Clinton David Beck

     Counsel for Clinton David Beck:

           Ms. Terri R. Zimmermann (on the writ and appeal only)
           Mr. Jack B. Zimmermann
           Zimmermann Lavine & Zimmermann, P.C.
           770 South Post Oak Lane, Suite 620
           Houston, Texas 77056

           Mr. Robert M. “Matt” Kyle (trial only)
           The Kyle Law Firm
           707 N. Walnut Avenue
           New Braunfels, Texas 78130

     Counsel for the State:

           Mr. Joshua D. Presley (on the writ and appeal only)
           Ms. Jennifer C. Smith (trial only)
           Comal County District Attorney’s Office
           150 N. Seguin Ave, Suite 307
           New Braunfels, Texas 78130-5122




                                        i
                                        TABLE OF CONTENTS
                                                                                                              PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

GENERAL STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
         BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
         BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
         SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
         FINDER OF FACT COULD FIND THAT MR. BECK ACTED
         WITH UNLAWFUL INTENT.

         STATEMENT OF FACTS PERTINENT TO ISSUE ONE. . . . . . . . . . . . 9

         ARGUMENT AND AUTHORITIES IN SUPPORT OF
         ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

         A.       Standard of Review... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



                                                           ii
                                                                                                              PAGE


         B.       The Statute of Conviction Required an Unlawful Intent.. . . . . 11

         C.       The State Abandoned and Presented No Evidence of
                  Unlawful Intent – The Evidence is Legally
                  Insufficient.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

         D.       Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ISSUE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

         THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
         BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
         BECAUSE THE STATUTE UPON WHICH THIS
         CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
         A NULLITY AB INITIO.

         STATEMENT OF FACTS PERTINENT TO ISSUE TWO.. . . . . . . . . . 14

         ARGUMENT AND AUTHORITIES IN SUPPORT OF
         ISSUE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A.       Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B.       The Instant Conviction Relies Exclusively on the
         Violation of an Invalid Statute; therefore, the Trial
         Court Erred in Denying Habeas Relief.. . . . . . . . . . . . . . . . . . . . . . . . . 15

                  1.       Section 33.021(b) is Unconstitutional... . . . . . . . . . . . . . . . 15

                  2.       Mr. Beck’s Conviction and Sentence
                           Are Defective and Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C.       Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


                                                          iii
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                  iv
                                INDEX OF AUTHORITIES
                                                                                                PAGE
                                            State Cases

Ex Parte Chance, 2014 WL 1796648 (Tex. Crim. App. 2014) . . . . . . . . 16, 17, 19

Ex Parte Cooper, 2014 WL 1871722 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . 18

Ex Parte Downs, 2014 WL 2609723 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . 18

Ex parte Hollowell, No. 03-11-00240-CR, 2012 WL 1959309
      (Tex. App. June 1, 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14

Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 11

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)),
      reh'g denied, (Mar. 19, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15, 16

Ex parte Martin, 6 S.W.3d 524 (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . 10

Ex Parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . 11

Ex parte Rodriguez-Grimaldo, No. 03-12-00019-CR,
      2013 WL 2631629 (Tex. App. June 5, 2013). . . . . . . . . . . . . . . . . . . . . . . 10

Ex Parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . 10

Ex Parte Williams, 2014 WL 2527787 (Tex. Crim. App. 2014). . . . . . . . . . . . . 18

Ex Parte Zavala, 421 S.W.3d 227 (Tex. App. – San Antonio 2013). . . . . . . . . 18

Freeman v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 18

Freeman v. State, No. 05-12-00923-CR,
     2014 WL 6602691 (Tex. App. Nov. 21, 2014). . . . . . . . . . . . . . . . . . . . . 18

Ravenbark v. State, 942 S.W.2d 711 (Tex. App. –
     Houston [14th Dist.] 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

                                                   v
                                                                                                            PAGE


Reyes v. State, 753 S.W.2d 382 (Tex. Crim. App. 1988)). . . . . . . . . . . . . . . . . . 16

Sanders v. State, 2014 WL 887781 (Tex. App. – Texarkana 2014). . . . . . . . . . 18

Schuster v. State, 435 S.W.3d 362 (Tex. App. –
     Houston [1st Dist.] 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Thomas v. State, 444 S.W.3d 4 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . 11

                                                Federal Cases

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Reyes–Requena v. United States, 243 F.3d 893 (5th Cir. 2001).. . . . . . . . . . . . . 17

                               Constitutions, Statutes, and Rules

Tex. Penal Code Ann. § 21.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Penal Code Ann. § 33.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

TEX. R. APP. P. 9.4(1)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. R. APP. P. 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i




                                                         vi
                           NO. 03-14-00818-CR


                  IN THE THIRD COURT OF APPEALS
                           AUSTIN, TEXAS


                        CLINTON DAVID BECK,
                                       Appellant
                                 v.

                         THE STATE OF TEXAS,
                                         Appellee


                            Appealed from the
                            207th District Court
                           Comal County, Texas


                      BRIEF FOR THE APPELLANT


TO THE HONORABLE COURT OF APPEALS:

     COMES NOW CLINTON DAVID BECK, the Appellant in the above-

styled and numbered cause, and files this Brief for the Appellant.

                       STATEMENT OF THE CASE

     This is a direct appeal from the trial court’s denial of relief from the

Application for Writ of Habeas Corpus that Mr. Beck filed pursuant to Section

11.072 of the Code of Criminal Procedure.
      In late 2010, Mr. Beck, a middle school health teacher and coach in New

Braunfels, was investigated based on text messages he sent to one of his

students. The investigation resulted in his arrest and he was charged in

Cause No. CR2011-197 with two offenses: Online Solicitation of a Minor,

Count     I;   and   engaging      in   an     Improper     Relationship     Between

Educator/Student, Count II. Original Indictment at Clk. R. 4-5.1 There was

no allegation of unlawful touching.

      On September 26, 2011, Mr. Beck pleaded guilty to Count II, Improper

Relationship Between Educator/Student, and the State dismissed the Online

Solicitation charged in Count I. Judgments at Clk. R. 15-20. On November 7,

2011 the trial court sentenced Mr. Beck to ten years in the Institutional

Division of the Texas Department of Criminal Justice, suspended the

confinement for ten years, and fined him $2,000.00. Id. Mr. Beck did not

appeal his conviction.

      On September 4, 2014, Mr. Beck filed his Application for Writ of Habeas

Corpus. Clk. R. 21. The trial court held a hearing on October 21, 2014. The


      1
             The Clerk’s Record is contained in one original volume and one supplemental
volume, cited as “Clk. R. Page Number” and “Supp. Clk. R. Page Number,” respectively.
For example, “Clk. R. 1.” The court reporter’s record from the writ hearing is in one
volume cited as “Rptr. R. Page Number.” For example, “Rptr. R. 1.”

                                           2
State submitted to the trial court proposed Findings of Fact and Conclusions

of Law, and the trial court signed them along with an Order denying relief on

November 24, 2014. Clk. R. 28-32. Mr. Beck’s counsel received the order on

December 11, 2014, and filed by mail Objections to the Findings and

Conclusions on December 18, 2014.2 Clk. R. 33-39. The trial court did not

withdraw or amend any of the Findings or Conclusions.3

        Mr. Beck timely filed his Notice of Appeal on December 22, 2014.4 Clk.

R. 40-41.

                   STATEMENT REGARDING ORAL ARGUMENT

        Mr. Beck respectfully requests oral argument. The issues involved in

this case are novel and present questions of first impression in the State.

Because there are no cases directly on point under the exact same fact pattern,

oral argument would facilitate and aid this Court’s decisional process by




        2
               Although counsel mailed and emailed the document on December 18, 2014,
it was not officially filed until December 29, 2014, presumably due to the holidays.
        3
               The trial court’s Court Administrator called the undersigned counsel on
December 19 to inform her that he had handed the Objections to the judge and the judge
denied relief.
        4
                   Again, there was a slight delay between the mailing of the document and its
official filing.

                                                3
allowing counsel the opportunity to answer any questions that the Court

might have that are not adequately covered in the parties’ Briefs.

                                 ISSUES PRESENTED

       Mr. Beck raises the following issues for appellate review:

                                        ISSUE ONE

       THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
       BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
       BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
       SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
       FINDER OF FACT COULD FIND THAT MR. BECK ACTED
       WITH UNLAWFUL INTENT.

                                       ISSUE TWO

       THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
       BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
       BECAUSE THE STATUTE UPON WHICH THIS
       CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
       A NULLITY AB INITIO.

                       GENERAL STATEMENT OF FACTS

       As stated above, in late 2010, Mr. Beck was a middle school health

teacher and coach in New Braunfels, Texas. Offense Report, State’s Exhibit

2 from Plea Hearing.5 He was investigated and charged based on text


       5
               The Transcript from the plea hearing that took place on September 26, 2011
as well as State’s Exhibit 2 (the offense report) were not originally designated for filing with
this Court. Undersigned counsel has requested that the court reporter and District Clerk,

                                               4
messages he sent to one of his students that the State believed were

inappropriate. Original Indictment at Clk. R. 4-5. However, the text messages

did not contain any solicitation of the student to perform any physical act, and

there was never any allegation of any unlawful touching. Mr. Beck resolved

the charges against him by pleading guilty to Improper Relationship Between

Educator and Student in violation of Section 21.12 of the Texas Penal Code;

the State dismissed the Online Solicitation count under Section 33.021(b) of

the Texas Penal Code.          Judgments at Clk. R. 15-20.            He is currently

successfully serving his ten year probated sentence.

      Undersigned counsel did not represent Mr. Beck at the time that the trial

court accepted his plea and sentenced him to probation. When she was hired

to represent him on habeas, she requested a complete copy of the District

Clerk’s file. Clk. R. 42. In response, she received a copy of the original

indictment in this case. It did not contain any pen and ink changes or other

amendments. The allegation in Count II under Section 21.12 in the original

indictment contained all of the required elements of that statute.




respectively, file these documents as soon as possible with this Court.

                                            5
      At the hearing on the Application, Mr. Beck argued that his conviction

was void because the Court of Criminal Appeals invalidated the underlying

statute upon which the conviction was based. Rptr. R. 5, 7, 33-37. The State

submitted Proposed Findings of Fact and Conclusions of Law and an Order

denying relief, which the trial court signed. Clk. R. 27-32. Mr. Beck objected

to those Findings and Conclusions, based primarily on two grounds:6

      1. Subsequent to the hearing but immediately prior to filing Objections,

Mr. Beck’s counsel discovered that at the plea hearing, the State had deleted

all language in the indictment pertaining to the intent element of the offense.

In addition, there was no evidence to support that element and the trial

court’s Findings and Conclusions pertaining to Mr. Beck’s intent were

completely without factual support in the record, since the only evidence that

exists is that he had a lawful intent at the time he sent the messages. The

absence of any allegation or proof of the unlawful intent element justified

granting of habeas relief.




      6
              Mr. Beck objected to additional Findings and Conclusions as being
unsupported by the record, and respectfully incorporates those objections into this Brief
as further evidence of the trial court’s erroneous Findings and Conclusions.

                                           6
      2. Even had the indictment been valid, under the undisputed facts of

this case (text messages only; no solicitation and no unlawful touching) the

conviction rests solely upon an allegation that Mr. Beck’s conduct violated

Section 33.021(b) of the Texas Penal Code, which the Court of Criminal

Appeals held unconstitutional. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.

2013), reh'g denied, (Mar. 19, 2014). Therefore, Mr. Beck argued that relief was

justified. Clk. R. 33-39.

      The trial court elected not to withdraw or amend the erroneous Findings

and Conclusions, and therefore the denial of relief stands and this appeal

followed.

                     SUMMARY OF THE ARGUMENT

                                 ISSUE ONE

      In order to violate Section 21.12 (Improper Relationship Between

Educator and Student), Mr. Beck must have sent the text messages with the

intent “to arouse or gratify the sexual desire of a person.” Although this

language appeared in the original indictment, the State amended the

indictment at trial and struck those words. Therefore, the guilty plea did not

encompass that element. The State offered no witnesses to testify or any other


                                       7
evidence indicating that Mr. Beck had an unlawful intent. The only evidence

before the trial court was that Mr. Beck acted with a lawful intent. The

evidence is legally insufficient.

                                    ISSUE TWO

      The Court of Criminal Appeals held the Online Solicitation statute

(Section 33.021(b)) unconstitutional and as such, it was void ab initio and

cannot be used for any purpose. Mr. Beck’s conviction rests solely upon an

allegation that he violated that invalid subsection of the Online Solicitation

statute. There is no allegation or proof that any other subsection of the

Improper Relationship Between Educator and Student statute or the Online

Solicitation statute was implicated in this case. Even had the indictment and

the proof in this case not omitted the required intent element under the Online

Solicitation statute, because that statute was a nullity Mr. Beck’s conviction

of Improper Relationship Between Educator and Student based on the invalid

statute must fail. The trial court should have granted habeas relief.




                                        8
                                ARGUMENT

                                 ISSUE ONE

      THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
      BECK'S APPLICATION FOR WRIT OF HABEAS CORPUS
      BECAUSE THE EVIDENCE IS LEGALLY INSUFFICIENT TO
      SUSTAIN A CONVICTION IN THIS CASE; NO RATIONAL
      FINDER OF FACT COULD FIND THAT MR. BECK ACTED
      WITH UNLAWFUL INTENT.

         STATEMENT OF FACTS PERTINENT TO ISSUE ONE

      As noted above, Mr. Beck entered a guilty plea to an amended

indictment that did not allege any unlawful intent. The State called no

witnesses. The offense report contains no admissions by Mr. Beck or other

evidence that he sent text messages to his student for any reason other than

he believed he was answering the student’s questions about topics they had

discussed at school during the health class that he taught. There is no

evidence that Mr. Beck had any intent to arouse anyone’s sexual desires.

      Despite the lack of an allegation or evidence, the trial court’s Findings

of Fact state that Mr. Beck acted with an intent “to arouse or gratify the sexual

desire of a person . . . [and without] any legitimate purpose.” Clk. R. 29. Mr.

Beck specifically challenged the trial court’s Finding of Fact Number 5 on this

issue, calling to the court’s attention the lack of evidence in the record. Clk.

                                       9
R. 35. The State did not file a response of any kind to the Objections. The trial

court did not withdraw or amend its Findings or Conclusions.

     ARGUMENT AND AUTHORITIES IN SUPPORT OF ISSUE ONE

A.    Standard of Review.

      This Honorable Court has held that, “When reviewing the trial court’s

denial of an application for writ of habeas corpus under article 11.072 of the

Texas Code of Criminal Procedure, the appellate court must view the facts in

the light most favorable to the trial court’s ruling and uphold that ruling

absent an abuse of discretion.”             Ex parte Rodriguez-Grimaldo, No.

03-12-00019-CR, 2013 WL 2631629, at *1 (Tex. App. June 5, 2013) (not

designated for publication) (citing Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex.

Crim. App. 2006)). “However, a deferential abuse of discretion review is not

appropriate in the context of the application of law to facts when the trial

court’s decision does not turn on the credibility or demeanor of witnesses.

When the trial judge is not in an appreciably better position than the

reviewing court, a de novo review by the appellate court is appropriate.” Ex

parte Hollowell, No. 03-11-00240-CR, 2012 WL 1959309, at *2 (Tex. App. June

1, 2012) (not designated for publication) (citing Ex parte Martin, 6 S.W.3d 524,


                                       10
526 (Tex. Crim. App. 1999). “When the resolution of the ultimate question

turns on the application of legal standards, we conduct a de novo review.” Id.

(citing Ex Parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled

on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)).

      “To determine if there is sufficient evidence to support a criminal

conviction, a reviewing court must ask whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

B.    The Statute of Conviction Required an Unlawful Intent.

      In order to violate Section 21.12 of the Texas Penal Code, Improper

Relationship Between Educator/Student (the offense of conviction), Mr. Beck

must have either engaged in conduct involving the unlawful touching of the

student (“sexual contact, sexual intercourse, or deviate sexual intercourse”)

or engaged in “conduct described by Section 33.021” with the student. Tex.

Penal Code Ann. § 21.12. Section 33.021 is the Online Solicitation statute. Tex.

Penal Code Ann. § 33.021. As mentioned above, there was never any


                                      11
allegation or proof that Mr. Beck engaged in any unlawful touching of the

student; the only basis for the Improper Relationship charge and conviction

was an alleged violation of the Online Solicitation statute.

      There are two ways to violate the Online Solicitation statute:

      1) to use the internet to send an electronic mail or text message to
      communicate in a sexually explicit manner with a minor or
      distribute sexually explicit material to a minor (with the intent to
      arouse or gratify the sexual desire of any person), which violates
      subsection (b); or

      2) to use the internet to knowingly solicit a minor to meet another
      person (with the intent that the minor will engage in sexual
      contact, sexual intercourse, or deviate sexual intercourse with the
      actor or another person), which violates subsection (c).

Tex. Penal Code Ann. § 33.021.

      There was never any allegation or proof that Mr. Beck solicited the

student in a way to violate subsection (c) of the statute; the sole basis for the

charged criminal liability was the mere sending of text messages that were

allegedly sexually explicit in violation of Section 33.021(b). That subsection

requires an unlawful intent – the same intent contained in the language the

prosecutor struck from the original indictment at the plea hearing. Amended

Indictment, Clk. R. 7.



                                       12
C.    The State Abandoned and Presented No Evidence of Unlawful Intent
      – The Evidence is Legally Insufficient.

      Mr. Beck argued to the trial court on habeas that, “Neither the State’s

allegation or proof suffices to constitute a criminal offense.” Clk. R. 38. The

State did not refute this claim in any way.

      This is a purely legal issue that this Court is capable of adjudicating,

therefore a de novo standard is appropriate.           However, based on the

undisputed state of the record, even under an abuse of discretion standard,

the trial court erred. Despite calling the trial court’s attention to the failure of

an allegation or any proof whatsoever as to Mr. Beck’s unlawful intent, and

the statute’s requirement for Mr. Beck to have had such intent for conviction,

the trial court refused to reconsider and withdraw its Findings and

Conclusions denying habeas relief. On this record, no rational finder of fact

could find that Mr. Beck acted with unlawful intent and the evidence is

legally insufficient.

D.    Conclusion.

      The trial court committed reversible error when it denied relief on Mr.

Beck’s Application for a Writ of Habeas Corpus. This Honorable Court




                                        13
should reverse and enter an appellate acquittal because the evidence is legally

insufficient.

                                  ISSUE TWO

         THE TRIAL COURT REVERSIBLY ERRED BY DENYING MR.
         BECK’S APPLICATION FOR WRIT OF HABEAS CORPUS
         BECAUSE THE STATUTE UPON WHICH THIS
         CONVICTION RESTS IS UNCONSTITUTIONAL AND WAS
         A NULLITY AB INITIO.

            STATEMENT OF FACTS PERTINENT TO ISSUE TWO

         Mr. Beck specifically challenged the trial court’s Conclusions of Law,

which stated that despite the Court of Criminal Appeals’ invalidation of the

Online Solicitation statute subsection at issue in this case, the subsection was

still valid with regard to Section 21.12 prosecutions and that the conviction in

this case was not affected by Lo. Objections at Clk. R. 36-38. The trial court

did not withdraw its Order denying relief.

     ARGUMENT AND AUTHORITIES IN SUPPORT OF ISSUE TWO

A.       Standard of Review.

         As stated above, when issues of law as opposed to fact determine the

resolution of a case, this Court reviews the case de novo. Ex parte Hollowell,

supra.


                                       14
B.    The Instant Conviction Relies Exclusively on the Violation of an
      Invalid Statute; Therefore, the Trial Court Erred in Denying Habeas
      Relief.

      As of the date of this filing, there still are no Texas opinions analyzing

the legal relationship between the invalid Online Solicitation statute

subsection and the offense of conviction in this case, the Improper

Relationship Between Educator and Student statute. However, logic dictates

that because the conviction in this case relies exclusively on an invalid statute,

the conviction cannot stand. As a pure legal matter, this Court should review

this issue de novo and find that the trial court erred in denying relief.

      1.     Section 33.021(b) is Unconstitutional.

      In October 2013, the Texas Court of Criminal Appeals (CCA) held that

Section 33.021(b) of the Online Solicitation statute (which is the section

prohibiting the sending of sexually explicit messages) is unconstitutional. Ex

parte Lo, supra. The Court found that the statute infringed on citizens’ First

Amendment rights. Id. Interestingly, Mr. Lo also was a teacher who was

accused of sending sexually explicit messages to a student. See Lo indictment

and news article at Appellant’s Exhibit A.7 The CCA reversed the decision of

      7
           The Clerk’s Record filed in this case contains the Application for Writ of
Habeas Corpus that Mr. Beck filed; however, it is missing the Exhibits to that document.

                                          15
the intermediate Court of Appeals (which had upheld the conviction) and

remanded the case “to the trial court to dismiss the indictment.” Id. at 27.

      Judge Cochran’s concurrence in another case is instructive on the effect

of this invalidation:

      Generally, a statute that has been declared unconstitutional is
      void from its inception and cannot provide a basis for any right
      or relief. It is thus the general rule that an unconstitutional
      statute, even though it has the form and name of law, in reality is
      not law and in legal contemplation is as inoperative as if it had
      never undergone the formalities of enactment.

Ex Parte Chance, 2014 WL 1796648 (Tex. Crim. App. 2014) (emphasis added,

citations omitted).

      She further explained:

      an unconstitutional statute is void from its inception[;] ... when a
      statute is adjudged to be unconstitutional, it is as if it had never
      been passed [;] ... the statute is stillborn, ... [and] had been fatally
      smitten by the Constitution at its birth[,] ... [and] is of no more
      force or validity than a piece of blank paper, and is utterly void.

Id. (emphasis added, citing Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App.

1988)).




The Lo indictment and article were attached to the Application as Exhibit 3. Counsel has
asked the District Clerk to supplement the record with this exhibit.

                                          16
       2.    Mr. Beck’s Conviction and Sentence Are Defective and Void.

       The CCA has granted relief to other Applicants for writs of habeas

corpus who were convicted of violating the now-unconstitutional statute. See,

e.g., Ex Parte Chance, supra. Significantly, in Chance, Justice Cochran stated in

her concurring opinion that a person may “always obtain relief” from a

conviction based on a penal statute that is declared unconstitutional based on

the “void ab initio” concept. This means that “one who has been convicted

under a penal statute that is later found unconstitutional is ‘actually innocent’

of any crime because the ‘core idea is that the petitioner may have been

imprisoned for conduct that was not prohibited by law.’” Id. at 2, citing, inter

alia, Reyes–Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001). She

further states that an unconstitutional statute is “void for all comers.” Id.

This includes those who have been convicted of violating the statute before

it was declared void, like Mr. Beck:

       He may take advantage of that ‘void ab initio’ status today,
       yesterday, tomorrow, or even ten years from now. Anyone who
       has been convicted under the now void provisions of Section
       [33.021(b)] is ‘innocent’ and may obtain an acquittal, whether it is
       in the trial court, on direct appeal, or in a habeas proceeding.
       That is constitutionally required.

Id. at 3.

                                       17
         The CCA also granted relief in other cases involving convictions under

Section 33.021(b), including those involving guilty pleas at trial without a

challenge to the statute at trial or on appeal. Ex Parte Williams, 2014 WL

2527787 (Tex. Crim. App. 2014) (not designated for publication); Ex Parte

Cooper, 2014 WL 1871722 (Tex. Crim. App. 2014) (not designated for

publication); Ex Parte Downs, 2014 WL 2609723 (Tex. Crim. App. 2014) (not

designated for publication); see also, Freeman v. State, 425 S.W.3d 289 (Tex.

Crim. App. 2014) (noting that the lower court denied relief prior to Ex Parte

Lo; PDR granted and case remanded “for further action in light of our opinion

in Ex Parte Lo.”; on remand, conviction reversed and remanded for

dismissal8).

         Other Courts of Appeal around the State also have issued decisions

following Lo and reversing convictions under Section 33.021(b). Sanders v.

State, 2014 WL 887781 (Tex. App. – Texarkana 2014); Schuster v. State, 435

S.W.3d 362 (Tex. App. – Houston [1st Dist.] 2014); Ex Parte Zavala, 421 S.W.3d

227 (Tex. App. – San Antonio 2013).




         8
               Freeman v. State, No. 05-12-00923-CR, 2014 WL 6602691 (Tex. App. Nov. 21,
2014).

                                           18
      Therefore, given the factual similarity and legal outcome of Ex Parte Lo,

and subsequent cases decided by the CCA and other Texas intermediate

appellate courts in light of the Lo decision, Mr. Beck submits that his

conviction and sentence are defective and void. As many courts have stated,

unconstitutional statutes are void from their inception, and Mr. Beck cannot

be punished based on his conviction for violating a provision of a statute

(Improper Relationship) that relies exclusively on a void statute (Online

Solicitation subparagraph (b)) for liability. In fact, he is actually innocent. Ex

Parte Chance, supra. Therefore, this Court may enter an acquittal. Ravenbark

v. State, 942 S.W.2d 711 (Tex. App. – Houston [14th Dist.] 1997, no pet.)

(holding on direct appeal “from a conviction under a void statute, we hold the

judgment is void. The judgment is reversed and a judgment of acquittal is

rendered.”).9

C.    Conclusion.

      The trial court committed reversible error when it denied relief on Mr.

Beck’s Application for a Writ of Habeas Corpus. This Honorable Court




      9
              Mr. Beck acknowledges that Lo and its progeny remand for dismissal of the
indictment.

                                          19
                                                                            DJl LOG NUMBER.-1594515
                                                    02471S1S                CJIS TRACKING NO.-9W4971430-A001
    JOHNCHRISTOPHER LO                   SPN:
   200WELLINGTON #5308                                                      BY: RZ DA NO: 001901698
                                         SOB: AM 06-24-1560                 AGENCYrHFD
   MNGWOOD,TX                            DATEPREPARED: 1/5K201O             O/RNO: 161163409H
                                                                            ARREST DATE*01-05-2009
   NaC CODE-369911F3                    RELATEDCASES:

  FEWNY CHARGE: ONLINE SOLICITATION OF AMINOR
  HARRIS COUNTY DISTRICT COURTNO:                      1246900
                                                                            BAIL:$5000 J^*
  FIRST SETTING DATE*                                                       PRIOR CASsHjO:
                                                       248


  IN THE NAME ANDBYAUTHORITYOF THE STATE OF TEXAS:                            "7F

  JOHNCmUSTOFHmiX>,henate^                                                       ',Texas, dial inHams County, Texas,
  tfctotofflTOiadfinit^^                                            _         31,2009, did men and tfcercunlawfully, with
                                                                               inasexuallyexplicit maimervnQi FOREST
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AGAINSTTHE PEACE AND DIGNITY OF THE STATE.




                                                           FOREMAN OFTHE GRAND JURY

                                                    INDICTMENT




                                                                         Appellant's Exhibit A                Exhibit 3
   html




 .A teacher, sexting and the right to free speech
  Posted Tuesday, Feb. 25,2014

  BY MITCH MITCHELL
  mltchmitchell@star-telegram.com

  He was 30 and she was 13— a teacher and his student— but their relationship went far beyond the classroom, authorities say.
  In six days in October 2012, they sent 688 text messages to each other, and the conversation became sexual, according toanarrest
  warrant affidavit.

  The messages —known as "sexting" —included descriptions of sexual preferences and fantasies and discussions of dreams about each
  other, the affidavit says.
  Sean Arlis Williams, now 31, who was a junior high school teacher inthe Everman district, was eventually arrested on a charge ofonline
  solicitation ofa minor, which was later changed to improper relationship between an educator and student.
  But this month, based ona recent appeals court ruling dealing with a similar case in Harris County, Tarrant County prosecutors dismissed
  his case.

 The Texas Court ofCriminal Appeals ruled inOctober thata 2005 statute, which made sexually explicit online communication between an
 adult and minor illegal, violates the First Amendment right to free speech. The court examined the case ofJohn Christopher Lo, who was
 arrested in2010 after being accused ofsending sexually explicit text messages to a student he met while working as a choir director in a
 school district outside Houston.

 'It's OK foradults to talk dirty to children," said Mark Bennett, the Houston attorney who defended Lo.
 Bennett had argued that thestatute is too broad because "simple profanity orvulgarity —not rising to the level ofobscenity — is
 constitutionally protected speech."
 Lawyers for the statecontended that without the law "perverts will befree to bombard our children with salacious emails and text
 messages."
 The court's opinion said sexualexpression that is indecent but notobscene is protected bythe First Amendment, and includes sexually
 explicit literature suchas 50Shades ofGrey and Lady Chatterle/s Lover, as wellas Miley Cyrus' "twerking" during the 2013 MTV Video
 Music Awards.

 Jurisprudence experts say the ruling, depending on the appellate process, could throw other cases into a legal black hole and could force
 state legislators to rewrite the law.
 Bennettsaid that in the meantime, prosecutors should contact those convicted under the 2005 statute and tell them they havean avenue
for redress, Bennett said.

"I believe they havea duty to go back and set things right," Bennett said.
Tarrant County prosecutors dismissed their case against Williams on Feb. 10.
The recent opinion by the Texas Court of Criminal Appeals has certainlycaused us to re-examine a handful of cases and, where
appropriate, seek to re-indict them under... online solicitation ofa minor," said Melody McDonald, spokeswoman forthe Tarrant County
districtattorney's office. "In this particular case, however, the facts didn'tfit that statute and that wasn't an option."
Attempts to contact Williams were unsuccessful. His attorney, Jim Shaw, said the statute is clearly unconstitutional.
"it's (ike having a 16-year-old talking to a 20-year-old and although 16-year-olds aren't naive I guess state lawmakers figured they need
protection,"Shaw said.

Used 'bad judgment'

The student, identified in court documents by the pseudonym Mary Swan, had two classes with Williams at Baxter Junior High, which is
located in Fort Worth and is governed by the Everman school district.

Afterschool officials found that Williams had been sending the text messages to the student, they called the .enforcement authorities and
                                                                                        Appellant's Exhibit A
     contacted her mother.

     The mother contacted Fort Worth police, who interviewed the student. The student told police that she had exchanged phone numbers and
     began texting with Williams on Oct. 2, 2012. The messages became sexual, shesaid, and shetold detectives that he had asked her not
     to tellanyone about theirconversations, according to the arrestwarrant affidavit.
     The text messages included "talking about if either ofthem walked around naked in their homes, keeping the relationship secret until the
     victim graduates, dreams that each of them had about each other, virginity and showing restraint while they are in the classroom," the
     affidavit says.

     Photographs were exchanged, Including one ofthe student wearing a bra with no shirt.
    In November 2012, police interviewed Williams, who said that he had used "bad judgment" in sending the messages and that he knew she
    was a minor. He said he had not touched the student or met with her alone, according to the affidavit.
    He was arrested Jan. 18,2013, on acharge of online solicitation of aminor and was booked into jail on the improper relationship charge
    May 20. Hewas released on bail after three days, according to court records.

    Still has teaching certificate

    Williams, who began working in the Everman district in August 2007, left the district Nov. 30, 201Z District officials declined to discuss the
   reasons for Williams' departure or the district's response to the criminal investigation of his behavior.
   Williams' teacher certification remains valid until July 2017 for teaching secondary history and social studies classes But Williams*
   certrfication is under review by the State Board of Education's Professional Discipline Unit, according to Texas Education Agency records.
   There are Instances when ateacher is under acriminal investigation and we suspend our investigation until the criminal investigation plays
   out, aTEA spokeswoman said. There also have been instances where aperson might be exonerated in acriminal investigation but his
   certificate becomes invalid because ofsomething that comes out during aschool district investigation."
  A legislative matter?

  Though the case against Williams has been dismissed, amotion for rehearing Lo's case is pending at the appeals court level.
  Because the appellate jurists voted JH) to overturn the statute, Bennett, who defended Lo, said he doubts that the petition for arehearinq
  will be successful.                                                                                                                          y

  Ifthe Court of Criminal Appeals denies the petition, the state could petition the U.S. Supreme Court.
 Alan Curry, chiefofthe appellate division for the Harris County district attorney's office, said his staff is awaiting adecision on the petition
 before deciding on the nextstep.                                                                                                        fwuuwi

 He said the best option may be for state lawmakers to rewrite the law so that it satisfies the courts, "but that's way down the road," Curry
 State Rep. Bill Zedler, R-Arlington, said the 2005 statute was originally proposed to keep children from being groomed by sexual predators
 &tert?                 810 b,OCk *•,3W',aWmakefS ^ ^t0 ^ ^ ^ ^ aU°mey 9enera'and come UP «*"i"* «£w
 The purpose ofthe First Amendment was to allow political dissent, not to allow adults to be vulgar with minors," Zedlersaid.
Vague or ambiguous'

Shaw, Williams' attorney, said it would not matter whether an adult sent 2,000 sexually explicit text messages to aminor orjust one
unless the adult« tiying to get the minor to do something illegal, such as ameeting for sex, or is texting something obscene or
pornographic; nonetheless, the state cannot get a conviction using the 2005 statute. .          -•
This is not the first time lawmakers in Austin have written a law that did not pass constitutional muster.
"A lot oftimes these statues are vague or ambiguous," Shaw said. "A lot oftimes they fail to say what's illegal."
T^^l^ aPPe,!,ate ^Ty who"orked at *» Fort Worth offi°e ofthe Court of Criminal Appeals, said the court's message is
directed to state lawmakers, saying they need to rewrite the law so that it achie^s its stated purpose ofprotecting minorsSsLng.
"Ourcourts have ruled that limits on free speech are permissible but those limits need to be reasonable," Ruback said. "Iknow lawmakers
S"I7                               *"wouw "" better^draftln9 new'egls,aUon that Appellant's
                                                                                ls more —•*«—and
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