Opinion issued June 5, 2014.




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-13-00039-CR
                         ———————————
                   PETER JOHN SCHUSTER, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 337th District Court
                          Harris County, Texas
                      Trial Court Case No. 1322485


                                  OPINION

     Peter John Schuster appeals from his conviction under Section 33.021(b)(1)

of the Texas Penal Code, which prohibits certain types of sexually explicit

communications with a minor child. TEX. PENAL CODE ANN. § 33.021(b)(1) (West

2012).   On appeal, Schuster argues that Section 33.021(b)(1) is facially
unconstitutional because it is overbroad and vague and because it violates the

Dormant Commerce Clause of the United States Constitution. Alternatively, he

argues that his trial counsel was ineffective because he did not preserve the

constitutionality challenges for appeal. We reverse the judgment, direct the trial

court to dismiss the indictment, and direct that Schuster be released from

imprisonment.

                                   Background

      Schuster was charged with one count of violating Section 33.021(b)(1) of

the Penal Code, “Online Solicitation of a Minor,” which states in relevant part:

      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.

TEX. PENAL CODE ANN. § 33.021(b)(1) (West 2012). “Minor” is defined as “(A)

an individual who represents himself or herself to be younger than 17 years of age;

or (B) an individual whom the actor believes to be younger than 17 years of age.”

Id. § 33.021(a)(1). Only the second definition of “minor” was charged in the

indictment. For purposes of Section 33.021, “sexually explicit” is defined as “any

communication, language, or material, including a photographic or video image,

that relates to or describes sexual conduct, as defined by [Penal Code] Section

43.25.” Id. § 33.021(a)(3). Section 43.25 of the Penal Code defines “sexual


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conduct” as “sexual contact, actual or simulated sexual intercourse, deviate sexual

intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd

exhibition of the genitals, the anus, or any portion of the female breast below the

top of the areola.” Id. § 43.25(a)(2).

      Schuster pleaded guilty to the charge and pleaded “true” to an enhancement

paragraph stating that he had previously received three convictions of possession

of child pornography. After a pre-sentence investigation hearing, the trial court

found Schuster guilty and assessed a penalty of 40 years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. Schuster now

appeals, asking that this Court find Section 33.021(b)(1) unconstitutional and order

entry of a judgment of acquittal. Alternatively, he asks that we order a new trial

due to ineffective assistance of counsel.

      While this appeal was pending, the Court of Criminal Appeals decided Ex

parte Lo, in which it held that Section 33.021(b) is unconstitutionally “overbroad

because it prohibits a wide array of constitutionally protected speech and is not

narrowly drawn to achieve only the legitimate objective of protecting children

from sexual abuse.” 424 S.W.3d 10, 14 (Tex. Crim. App. 2013), rev’g Lo v. State,

393 S.W.3d 290, 299 (Tex. App.—Houston [1st Dist.] 2011). The State of Texas

sought rehearing, which the Court of Criminal Appeals denied. 424 S.W.3d at 30.




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                             Constitutional Challenges

      Schuster’s second argument on appeal is the same as that raised in Ex parte

Lo, namely that Section 33.021(b)(1) is facially overbroad. The record reveals—

and Schuster concedes—that Schuster did not raise any constitutional challenges to

Section 33.021(b)(1) in the trial court.

      The Court of Criminal Appeals has stated that “a defendant may not raise for

the first time on appeal a facial challenge to the constitutionality of a statute.”

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Under Karenev,

“[a] facial challenge to the constitutionality of a statute” falls within the category

of matters for which an objection is necessary to preserve error. Id. at 434; Marin

v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993) (recognizing three

different rules for error preservation), overruled on other grounds by Cain v. State,

947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see also Fuller v. State, 253 S.W.3d

220, 232 (Tex. Crim. App. 2008) (“almost all error—even constitutional error—

may be forfeited if the appellant failed to object”); Sanchez v. State, 120 S.W.3d

359, 365–66 (Tex. Crim. App. 2003) (stating that Marin is a watershed decision in

law of error preservation); TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting

a complaint for appellate review, the record must show that . . . the complaint was

made to the trial court . . . .”). As the Court of Criminal Appeals explained, the

“‘very nearly’ exclusive list” of situations in which a judgment can be considered



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void “does not include a judgment resulting from a facially unconstitutional

statute.” Karenev, 281 S.W.3d at 432 (citing Nix v. State, 65 S.W.3d 664, 668

(Tex. Crim. App. 2001)).

      The Court of Criminal Appeals premised its holding in Karenev on the

doctrine that “[s]tatutes are presumed to be constitutional until it is determined

otherwise.” 281 S.W.3d at 434. Thus, “[t]he State and the trial court should not be

required to anticipate that a statute may later be held to be unconstitutional,” and a

defendant must raise a facial challenge to a statute in the trial court. Id. Here,

however, that presumption of constitutionality cannot apply because the highest

criminal court in this state—the Court of Criminal Appeals—has already

determined that Section 33.021(b) is facially unconstitutional. See Ex parte Lo,

424 S.W.3d at 14.

      “The general rule concerning passage of an unconstitutional statute is that

the law is ‘void from its inception and cannot provide a basis for any right or

relief.’” Lapasnick v. State, 784 S.W.2d 366, 368 (Tex. Crim. App. 1990). There

is an exception to that rule, such that an unconstitutional statute may give rise to a

right “where a judgment has been rendered under an unconstitutional statute and

litigants have relied upon the benefits of the statute until declaration of its

invalidity.” Id. (quoting Rose v. State, 752 S.W.2d 529, 553 n.4 (Tex. Crim. App.

1987)) (noting that defendant had obtained dismissal of criminal case on basis of



                                          5
former Speedy Trial Act, before Act was declared unconstitutional, and such

reliance gave defendant right to avoid further prosecution). That exception does

not apply here, as Schuster has not relied upon any “benefits” of the statute in

question that might give rise to a substantive right.

      We have been able to identify only one case implicating Karenev’s error-

preservation requirements as applied to a conviction under a statute that has been

judicially declared unconstitutional by our state’s highest criminal court before the

resolution of the appeal. Coincidentally, that case also addressed Ex parte Lo’s

holding that Section 33.021(b) of the penal code is unconstitutional. Sanders v.

State, No. 06–13–00172–CR, 2014 WL 887781, at *1 (Tex. App.—Texarkana

Mar. 6, 2014, no pet. h.) (mem. op., not designated for publication). In a one-page

opinion, the Texarkana Court of Appeals held that the defendant’s conviction

could not stand, as the statute was void from inception. Id. (citing Lapasnick, 784

S.W.2d at 368). Although the court’s opinion did not address error preservation,

the briefs revealed that Sanders, like Schuster, did not raise a constitutional

challenge in the trial court. The court of appeals nonetheless reversed. Id. The

Texarkana court’s decision, however, has no precedential value, and, there, the

State agreed that Sanders’s conviction could not stand. Id.; see also TEX. R. APP.

P. 47.7(a) (“Opinions and memorandum opinions not designated for publication by

the court of appeals . . . have no precedential value . . . .”). We therefore must



                                           6
examine whether Schuster is entitled to reversal on his constitutional arguments in

light of both Ex parte Lo and Karenev, but without regard to Sanders.

      Karenev would control this case—defeating Schuster’s constitutional

arguments—if the Court of Criminal Appeals had not already declared Section

33.021(b) unconstitutional. But the Court of Criminal Appeals has done exactly

that, and the rationale for the Karenev rule—the presumption that a statute is

constitutional—does not apply to this case. See Karenev, 281 S.W.3d at 434.

Further, nothing in the Karenev majority indicates that the Court of Criminal

Appeals intended that courts of appeals affirm convictions based on statutes that

have already been overturned.       Under these facts, we find instructive Justice

Cochran’s concurring opinion in Karenev, joined by three other judges, in which

she wrote,

      I do not think that the majority is suggesting that it is quite acceptable
      to send someone to prison for violating an unconstitutional penal
      statute if that person failed to object to the statute’s unconstitutionality
      in the trial court. But its language could well be misconstrued as
      allowing persons who are not guilty of violating any valid penal
      statute to be punished nonetheless if they failed to complain soon
      enough. The moral of that story would be: Because you were a
      slowpoke at noticing that you were not guilty of any valid criminal
      offense, we will punish you as if you really were guilty of some valid
      criminal offense. That is not the American way: every person has an
      absolute, fundamental, and unforfeitable right to be punished only for
      the violation of a valid criminal statute.

281 S.W.3d at 438–39 (Cochran, J., concurring).




                                           7
      Justice Cochran identified three rationales for requiring an objection in the

trial court: (1) to give the opposing party an opportunity to respond or cure the

problem before it becomes error, (2) to give the trial judge an opportunity to

prevent the error from occurring, and (3) the interests of judicial economy. Id. at

439. None of those rationales applies when the highest court in our state has

already declared the statute in question to be facially unconstitutional in its

entirety, such that the defects in the proceeding cannot be saved or cured by the

prosecutor or trial court. Id. at 440. Rather, in such a circumstance, “the bedrock

American notion that we do not convict and punish people for unconstitutional

crimes” prevails over such concerns. Id.

      Further, the Karenev majority reaffirmed the “functional approach to error

preservation” first set out in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.

1993). Karenev, 281 S.W.3d at 434 (majority op.) (citing Marin, 851 S.W.2d at

279–80). Under Marin, error-preservation rules divide a criminal defendant’s

rights into three categories: (1) absolute requirements or prohibitions, (2) rights

subject to express waiver, and (3) rights that can be forfeited by a defendant’s

failure to assert them. Marin, 851 S.W.2d at 279–80. Ordinarily, “[a] facial

challenge to the constitutionality of a statute falls within the third category,” when

the presumption that the statute is constitutional applies. Karenev, 281 S.W.3d at




                                           8
 434. By contrast,

      The first category, “absolute requirements and prohibitions” or
      “systemic” rights, are those rights “which are essentially independent
      of the litigants’ wishes. Implementation of these requirements is not
      optional and cannot, therefore, be waived or forfeited by the parties.
      The clearest cases of . . . systemic requirements are laws affecting the
      jurisdiction of the courts.” Systemic requirements “are to be observed
      even without partisan request” and cannot “lawfully be avoided even
      with partisan consent.” Therefore, an appellant may “complain that
      an absolute requirement or prohibition was violated, and the merits of
      his complaint on appeal are not affected by the existence of a waiver
      or forfeiture at trial.”

Sanchez, 120 S.W.3d at 366 (citations and footnotes omitted). We conclude that a

criminal conviction under a statute that the Court of Criminal Appeals has already

held unconstitutional falls into this category of absolute prohibitions, because such

a statute is “void from its inception” and thus cannot support a criminal conviction

when the defendant challenges its constitutionality on appeal. Lapasnick, 784

S.W.2d at 368; see also Karenev, 281 S.W.3d at 439 (Cochran, J., concurring).

      We hold that the Court of Criminal Appeals’ decision in Ex parte Lo excuses

Schuster’s failure to preserve his constitutional arguments below. The Court of

Criminal Appeals has already determined that the argument has merit in that

Section 33.021(b)(1) is unconstitutionally, facially overbroad.       We therefore

sustain Schuster’s second issue on appeal.




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                                    Conclusion

      Because Schuster’s conviction depended entirely on a statute that the Court

of Criminal Appeals has held to be constitutionally invalid before our decision in

this appeal, that conviction cannot stand. We reverse the judgment, direct the trial

court to dismiss the indictment, and direct that Schuster be released from

imprisonment. We deny all pending motions as moot.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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