IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,867-02
EX PARTE DAVID RAY LEA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 52758-A IN THE 239TH DISTRICT COURT
FROM BRAZORIA COUNTY
Y EARY, J., filed a dissenting opinion.
DISSENTING OPINION
The Court today grants post-conviction habeas corpus relief on the grounds that
Applicant was convicted under a statute that was later declared to be unconstitutionally
overbroad, namely, Texas’ improper photography statute. See Majority Opinion (granting
relief based upon Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)). However,
I believe the argument I made in my dissenting opinion in Ex parte Fournier, while
addressing a different statute—Texas’ Online Solicitation of a Minor statute—still applies
to Applicant in this case. See Ex parte Fournier, 473 S.W.3d 789, 800-805 (Tex. Crim. App.
2015) (Yeary, J., dissenting) (arguing that the Court should not grant retroactive relief in
post-conviction habeas corpus proceedings without deciding whether applicants who were
convicted under a statute that has been held to be unconstitutionally overbroad should have
to show that the statute was unconstitutional as applied to them). Therefore, I dissent for the
reasons stated in my dissenting opinion in Fournier. See Ex parte Chang, ___ S.W.3d ___,
No. WR-82,712-01, 2016 WL 1161092 (Tex. Crim. App. Mar. 23, 2016) (Yeary, J.,
dissenting).
Filed: April 6, 2016
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