Reversed and Remanded and Opinion Filed November 10, 2014




                                               Court of Appeals
                                                                 S      In The


                                        Fifth District of Texas at Dallas
                                                            No. 05-14-00134-CR

                                                 HAMID SHOHREH, Appellant
                                                            V.
                                                THE STATE OF TEXAS, Appellee

                                    On Appeal from the 199th Judicial District Court
                                                 Collin County, Texas
                                        Trial Court Cause No. 199-82213-2013

                                               MEMORANDUM OPINION
                               Before Chief Justice Wright and Justices Myers and Brown
                                            Opinion by Chief Justice Wright
             Hamid Shohreh was convicted of improper photography or visual recording in violation

of section 21.15(b)(1) of the penal code. TEX. PENAL CODE ANN. § 21.15(b)(1) (West 2011).

Pursuant to a plea agreement, the trial court assessed punishment at two years’ confinement in a

state jail, probated for five years, and a $1,500 fine. Appellant filed a motion for new trial

asserting, among other things, that the statute under which he was convicted is unconstitutional.

The trial court denied appellant’s motion for new trial but granted appellant the right to appeal.1

In his first issue in his original brief, appellant asserts that section 21.15 is unconstitutional. In

his supplemental brief, appellant specifically asserts that his conviction is void in light of Ex

parte Thompson, No. PD-1371-13, 2014 WL 4627231 (Tex. Crim. App. Sept. 17, 2014), in

1
    The trial court made a written finding of fact that appellant had not met his burden to show the statute is unconstitutional.
which the court of criminal appeals held section 21.15(b)(1) facially unconstitutional. The State

has filed a letter brief agreeing that Ex parte Thompson applies to this case and, in light of the

holding, appellant’s conviction should be reversed and the case remanded to the trial court with

instructions to dismiss the indictment. We agree with the parties.

             After appellant was convicted and while this appeal has been pending, the Texas Court of

Criminal Appeals issued Ex parte Thompson. In Ex parte Thompson, the court held that section

21.15(b)(1), to the extent it proscribes the taking of photographs and the recording of visual

images, is facially unconstitutional and violates the Free Speech clause of the First Amendment

to the United States Constitution.2 Id. at *16. The court affirmed the San Antonio Court of

Appeals, which had likewise held the statute unconstitutional, reversed the trial court’s order

denying habeas corpus relief, and remanded the case to the trial court to enter an order

dismissing the prosecution. Id.; Ex parte Thompson, 414 S.W.3d 872, 881 (Tex. App.––San

Antonio 2013), aff’d, 2014 WL 4627231.

             Appellant was convicted of improper photography or visual recording. The indictment

alleged that appellant “did then and there, with intent to arouse the sexual desire of [appellant],

photograph another, namely [complainant] at a location that was not a bathroom or private

dressing room, without the consent of the said [complainant].” This tracks the statutory language

held to be unconstitutional in Ex parte Thompson. We sustain appellant’s first issue.3




2
 The court did not address the constitutionality of the part of section 21.15(b)(1) which proscribes the broadcast or transmission of visual images,
and that portion of the statute is not at issue in this case.
3
    In light of our disposition of issue one, we do not address appellant’s remaining issues. See TEX. R. APP. P. 47.1.



                                                                         –2–
       We reverse the trial court’s judgment and remand the case to the trial court with

instructions to dismiss the indictment.




                                                /Carolyn Wright/
                                                CAROLYN WRIGHT
                                                CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140134F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

HAMID SHOHREH, Appellant                          On Appeal from the 199th Judicial District
                                                  Court, Collin County, Texas
No. 05-14-00134-CR        V.                      Trial Court Cause No. 199-82213-2013.
                                                  Opinion delivered by Chief Justice Wright,
THE STATE OF TEXAS, Appellee                      Justices Myers and Brown participating.

       Based on the Court’s opinion of this date, we REVERSE the trial court’s judgment and
REMAND the case to the trial court with instructions to enter an order dismissing the
indictment.


Judgment entered November 10, 2014.




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