Reverse and Remand; Opinion Filed November 21, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00923-CR
COREY THOMAS FREEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80780-2011
MEMORANDUM OPINION ON REMAND
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
Corey Thomas Freeman was convicted of online solicitation of a minor under section
33.021(b) of the Texas Penal Code. On September 10, 2013, we affirmed the trial court’s
judgment. See Freeman v. State, No. 05-12-00923-CR, 2013 WL 4805698 (Tex. App.—Dallas
Sept. 10, 2013, pet. granted). After we issued our opinion and judgment, the Texas Court of
Criminal Appeals issued its opinion in Ex Parte Lo holding that section 33.021(b) is facially
unconstitutional. See Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The court then
granted Freeman’s petition for review in this case, vacated our judgment, and remanded the
cause for reconsideration in light of Lo. See Freeman v. State, 425 S.W.3d 289 (Tex. Crim. App.
2014) (per curiam).
A law that has been declared facially unconstitutional is void from its inception and
cannot provide a basis for any right or relief. See Ex Parte Chance, 439 S.W.3d 918, 918–19
(Tex. Crim. App. 2014) (per curiam) (Cochran, J., concurring). For this reason, a person may
always obtain relief from an indictment or conviction that was based on a penal statute that has
been declared unconstitutional. Id. at 919. “No one can be convicted for a non-existent crime
and no prior conviction based upon that unconstitutional statute is valid.” Id.
Freeman was convicted under a statute that has been declared facially unconstitutional.
Because Freeman cannot lawfully be convicted for a crime that does not exist, we reverse the
trial court’s judgment, remand the cause, and direct the trial court to dismiss the indictment.
/David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120923RF.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
COREY THOMAS FREEMAN, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-12-00923-CR V. Trial Court Cause No. 401-80780-2011.
Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED with instructions to enter an order dismissing the indictment.
Judgment entered this 21st day of November, 2014.
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Freeman, Corey Thomas v. State
Combined Opinion