WR-82,772-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/13/2015 8:35:28 AM
Accepted 2/13/2015 9:00:57 AM
ABEL ACOSTA
CLERK
Nos. 82,772-01, 82,772-01 and 82,772-03
RECEIVED
COURT OF CRIMINAL APPEALS
EX PARTE § IN THE COURT OF CRIMINAL
2/13/2015
ABEL ACOSTA, CLERK
§
DONALD LEE GRAY § APPEALS OF TEXAS
BRIEF OF APPLICANT
To the Honorable Judges of the Court of Criminal Appeals:
In 2006, Donald Lee Gray was convicted of three violations of
Texas Penal Code § 21.15, Improper Photography, which has since been
held unconstitutional by this Court. He respectfully asks the Court to
vacate his convictions.
IDENTITY OF ALL PARTIES AND COUNSEL
Petitioner:
Mr. Donald Lee Gray
Former inmate no. 1460267
Tyler, TX
c/o Mr. Volberding
Mr. James W. Volberding Attorney for habeas
First Place
100 E. Ferguson Street
Suite 500
Tyler, TX 75702
(903) 597-6622
(866) 398-6883 (fax)
Jamesvolberding@gmail.com
Respondent:
Hon. Mr. Matt Bingham
Hon. Mr. Mike West
Smith County District Attorney
101 N. Broadway, Fourth Floor
Tyler, TX 75702
District Court :
Hon. Judge Jack Skeen, Jr.
241st District Court
Courthouse
101 N. Broadway, 2nd Floor
Tyler, TX 75702
ii
CONTENTS
Identity of All Parties and Counsel........................................................... ii
Authorities ..................................................................................................iv
Statement of Jurisdiction ...........................................................................1
Statement of the Case.................................................................................1
Ground for Habeas Corpus Relief ..............................................................3
Donald Lee Gray was convicted of violation of Texas Penal Code §
21.15(b)(1), which on its face violates the First Amendment to the
U.S. Constitution and has been held so by the Court of Criminal
Appeals. ....................................................................................................3
I. Penal Code section 21.15(b)(1) has been held unconstitutional by
the Court of Criminal Appeals. ...............................................................3
II. Mr. Gray was convicted of section 21.15(b)(1) violations and is
therefore entitled to habeas relief. ..........................................................6
III. The record in this application is sufficient for the Court to vacate
the convictions. .........................................................................................7
IV. Alternatively, Gray requests dismissal without prejudice to re-
filing, or remand to consider affidavit and testimony..........................13
Conclusion .................................................................................................14
Relief ...................................................... Error! Bookmark not defined.
iii
AUTHORITIES
CASES
Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) ..............7, 9, 10
Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) ...............11, 12
Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) ...............10
Ex parte Thompson, 442 S.W.3d 325, 2014 Tex. Crim. App. LEXIS 969
(Tex. Crim. App. Sept. 17, 2014). ....................................................4, 5, 9
Shohreh v. State, 2014 Tex. App. LEXIS 12216 (Tex. App. -- Dallas Nov.
10, 2014, no pet.) ................................................................................6, 10
Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008) .................13
CONSTITUTION
Tex. Const., Art. V, § 8 ………....……………………………………… passim
STATUTES
Tex. Code Crim. Proc., Art. 11.07 (2014) ……...………………….… passim
Tex. Penal Code § 21.15 (2014) …...…….………………………….… passim
iv
STATEMENT OF JURISDICTION
Gray’s application was submitted pursuant to Texas Constitution,
Article V, § 8 (amended application), and article 11.07 of the Texas Code
of Criminal Procedure (original and amended application).
STATEMENT OF THE CASE
Mr. Gray was indicted in Tyler November 15, 2006, in cause
numbers 241-2620-06, 241-2621-06, 241-2622-06 for violation of Texas
Penal Code section 21.15(b)(1), improper photography or visual
recording. See Exhibit 3, Habeas App.
On September 25, 2007, he pled guilty in each case pursuant to a
plea agreement and was sentenced to confinement for one year in a
state jail, and ordered to pay court costs of $276 and other fees of $30.
See Exhibit 4, Habeas App. He did not appeal to the Court of Appeals or
the Court of Criminal Appeals.
On December 19, 2014, he filed an 11.07 writ application seeking
to vacate his section 21.15 convictions in light of the Court’s decision in
Ex parte Thompson, that the statute facially violated the First
Amendment. See Ex parte Gray, Habeas Nos. 241-2620-06-A, 241-2621-
06-A, 241-2622-06-A (Smith Co. Dist. Crt.).
1
On January 8, 2015, the State responded, asserting that article
11.07 does not convey jurisdiction for one no longer in custody and
arguing that Gray failed to supply a requisite affidavit confirming he is
still retrained by his three felony convictions.
On January 12, the court signed proposed findings and
conclusions supplied by the State.
On January 15, Gray amended his application to seek relief under
article V, section 8 of the Texas Constitution.
On January 20, Gray filed his affidavit explaining how the felony
convictions continue to restrain his activities.
On January 22, the district clerk sent the file to the Court.1
This is Gray’s first habeas action.
1
The January 12 signed F&Cs were not sent to Gray’s counsel and were not
recorded by the clerk on the docket sheet for several days. Smith County does not
possess electronic filing and notification for criminal cases. Consequently, Gray did
not learn of the signed F&Cs until after filing his January 20 affidavit, when the
Clerk of this Court notified Gray of receipt of the records.
2
GROUND FOR HABEAS CORPUS RELIEF
In his application, Gray presents a single ground for relief:
Donald Lee Gray was convicted of violation of Texas Penal
Code § 21.15(b)(1), which on its face violates the First
Amendment to the U.S. Constitution and has been held so
by the Court of Criminal Appeals.
I. Penal Code section 21.15(b)(1) has been held
unconstitutional by the Court of Criminal Appeals.
In 2001, the Texas Legislature enacted Penal Code section 21.15
to criminalize photographs taken in public to gratify the photographer’s
sexual desire:
Improper Photography or Visual Recording
(a) In this section, “promote” has the meaning assigned by Section
43.21.
(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic means
visually records another:
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual
desire of any person; or
(2) knowing the character and content of the photograph or
recording, promotes a photograph or visual recording
described by Subdivision (1).
(c) An offense under this section is a state jail felony.
3
(d) If conduct that constitutes an offense under this section also
constitutes an offense under any other law, the actor may be
prosecuted under this section or the other law.
Tex. Pen. Code § 21.15 (2011).
Last year the Court held that section 21.15(b)(1) violates the First
Amendment. Ex parte Thompson, 442 S.W.3d 325, 2014 Tex. Crim. App.
LEXIS 969 (Tex. Crim. App. Sept. 17, 2014).
Thompson involved a man charged with 26 counts of improper
photography or visual recording under section 21.15(b)(1). Each count
alleged that Thompson, “with intent to arouse or gratify the sexual
desire of the Defendant, did by electronic means record another . . . at a
location that was not a bathroom or private dressing room.” Thompson,
2014 Tex. Crim. App. LEXIS 969 * 3.
Tracing federal law, the Court “conclude[d] that photographs and
visual recordings are inherently expressive,” and “that a person’s
purposeful creation of photographs and visual recordings is entitled to
the same First Amendment protection as the photographs and visual
recordings themselves.” Thompson, 2014 Tex. Crim. App. LEXIS 969 *
15, 18. The Court recognized that the government was attempting to
prosecute thought crimes: “Banning otherwise protected expression on
4
the basis that it produces sexual arousal or gratification is the
regulation of protected thought, and such a regulation is outside the
government’s power[].” Thompson, 2014 Tex. Crim. App. LEXIS 969 *
21 (footnote and quote omitted). The Court rejected the State’s
insistence that “without consent” be interpreted broadly to remove the
statute from First Amendment concern. Id. * 28. Consequently, the
Court “conclude[d] that the improper-photography statute implicates
First Amendment expression on its face.” Id. * 35.
Having found that section 21.15(b)(1) triggers First Amendment
concerns, and that the statute’s criminalization is content based, the
Court reached for the strict scrutiny standard of review, which the
statute fails because “less restrictive alternatives would adequately
protect the substantial privacy interests that may sometimes be
threatened by nonconsensual photography.” Id. * 48-49.
Consequently, after a careful critique, the Court held that “to the
extent that it proscribes taking photographs and recording visual
images, Subsection (b)(1) of the statute is facially unconstitutional in
violation of the freedom of speech guarantee of the First Amendment.”
Thompson, 2014 Tex. Crim. App. LEXIS 969 * 1, 53.
5
One intermediate court has so far followed Thompson, dismissing
a pre-Thompson conviction. Shohreh v. State, 2014 Tex. App. LEXIS
12216 (Tex. App. -- Dallas Nov. 10, 2014, no pet.).
II. Mr. Gray was convicted of section 21.15(b)(1) violations
and is therefore entitled to habeas relief.
All three of Gray’s indictments track the statutory language of
section 21.15(b)(1). The indictment in case number 241-2620-06 charged
Gray:
that on or about the 19th day of August, 2006, and anterior to
the presentment of this indictment, in the County of Smith
and State of Texas, DONALD GRAY did then and there,
with intent to arouse or gratify the sexual desire of the
defendant, by digital video recorder, visually record another,
namely, [B.W.], without the consent of the said [B.W.] . . . .
Similarly, the indictment in case number 241-2621-06 charged:
that on or about the 19th day of August, 2006, and anterior to
the presentment of this indictment, in the County of Smith
and State of Texas, DONALD GRAY did then and there,
with intent to arouse or gratify the sexual desire of the
defendant, by digital video recorder, visually record another,
namely, [D.W.], without the consent of the said [D.W.] . . . .
Similarly, the indictment in case number 241-2622-06 charged:
that on or about the 19th day of August, 2006, and anterior to
the presentment of this indictment, in the County of Smith
and State of Texas, DONALD GRAY did then and there,
with intent to arouse or gratify the sexual desire of the
6
defendant, by digital video recorder, visually record another,
namely, [S.A.], without the consent of the said [S.A.] . . . .
Mr. Gray was not prosecuted for any other offense other than
violation of section 21.15(b)(1).
As Gray was prosecuted solely for violation of Penal Code section
21.15(b)(1), now held unconstitutional and therefore unenforceable, Mr.
Gray is entitled to habeas relief. The Court has held that his guilty plea
and failure to challenge or appeal earlier do not bar relief. Ex parte
Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).
III. The record in this application is sufficient for the Court
to vacate the convictions.
In its response, the State argued, and its proposed and signed
F&Cs agree, that a habeas applicant cannot vacate his or her felony
conviction of a subsequently invalidated penal statute unless the
applicant provides an affidavit testifying that he or she continues to
suffer some additional restraint, above and beyond the disapprobation
of a felony conviction and violation of constitutional rights.
Our research indicates that no such additional proof of continuing
restraint is required when the only relief sought is invalidation of a
conviction based on a statute previously held to violate the First
7
Amendment on its face. But anyway, after receiving the State’s
response, Gray filed such an affidavit, explaining how the three
convictions continue to retrain him.
A. Gray has filed an affidavit attesting to continuing
restraints.
The record contains Gray’s affidavit, listing continued restraints
created by his three convictions:
• The convictions bar him under federal and state law from
owning or possessing a firearm. Consequently, he can no
longer hunt, one of the loves of his life.
• He would like to, but cannot, apply for a concealed handgun
license for self-protection.
• He served on a jury once, and would like to do so again, but
cannot with these convictions.
• He would like to serve on a grand jury, but cannot.
• He would like to travel internationally, but many countries
will not issue visas to a convicted felon.
• He has suffered social stigma and suspicion because of the
convictions and continues to do so.
• The convictions continue to cause him anxiety and dread
with measurable health effects.
See Aff. of Mr. Gray (Jan. 20, 2015).
These and scores of other restraints are placed on convicted felons
as a matter of law. Gray urges the Court to hold that felony convictions
8
impose restraints as a matter of law when an applicant seeks relief
from a penal code violation declared unconstitutional. 2
Further, the convictions themselves constituted a governmental
restraint on Gray. His First Amendment rights were violated in 2006
with his arrest and prosecution under a statute, which this Court said
is “facially unconstitutional in violation of the freedom of speech
guarantee of the First Amendment.” Thompson, 2014 Tex. Crim. App.
LEXIS 969 * 1. As long as those convictions remain, his First
Amendment rights continue to be violated and his liberty restrained.
B. The F&Cs are incorrect. This Court does not appear to
require proof of continuing restraint when seeking
habeas relief from convictions based on
unconstitutional statutes.
In Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014), the
Court vacated a conviction under article 11.07 for violation of a statute
2
See, e.g., Tex. Ag. Code § 76.108 (felon barred from herbicide license); Tex. Alcoh.
& Bev. Code §§ 11.46, 11.61, 25.06, 61.42, 61.43, 61.71, 61.74, 69.06 (felon barred
from alcohol license); Tex. Bus. & Comm. Code § 51.161 (felon required to disclose
for registration of business opportunity); Tex. Bus. Organ. Code § 11.301 (felon
subject to termination of corporate entity); Tex. Civ. Prac. & Rem. Code § 145.003
(felon can trigger loss of non-negligent presumption of in-home service); Tex. Educ.
Code § 22.084 (felon barred from school buses); § 22.085 (felon barred from school
employment); § 56.404, 56.304 (drug felon barred from student financial aid or
grants); Tex. Fam. Code § 6.004 (felon may lose marriage); Tex. Finance Code §
371.251 and Tex. Admin. Code Rule 7, § 85.601(c) (felon can be barred from pawn
dealer license); Tex. Finance Code § 156.303(a)(4) (felon barred as loan originator);
Tex. Occupations Code §§ 108.002, 164.153, 201.502, et seq. (long list of occupations
barred to felons).
9
subsequently held unconstitutional (online solicitation of minor)
without commenting on the need to prove continuing restraint following
service and discharge of the sentence.
Judge Cochran elegantly explained that “a person may always
obtain relief from an indictment or a conviction based on a penal statute
that has been previously declared unconstitutional. He may obtain
relief in a pretrial motion or writ; he may obtain relief on direct appeal;
he may obtain relief in a habeas corpus proceeding, and it matters not
whether he had ever previously objected to the statute or its application
to him. The unconstitutional statute has disappeared in a puff of smoke.
No one can be convicted for a non-existent crime and no prior conviction
based upon that unconstitutional statute is valid.” Ex parte Chance, 439
S.W.3d at 919 (Cochran, J., concurring); see, e.g., Shohreh v. State, 2014
Tex. App. LEXIS 12216 (Tex. App. – Dallas 2014, no pet.) (applying
Thompson and dismissing section 21.15 conviction on direct appeal).
Although the applicant was in custody, Chance did not comment
at all on the case cited by the State, and relied upon by the district
court to deny relief, Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim.
App. 2010), also written by Judge Cochran.
10
Harrington dealt with an altogether different situation, one in
which Harrington was seeking article 11.07 relief on a claim of
ineffective assistance of counsel. Unlike Gray, he was not asserting that
he was convicted of a statute previously declared unconstitutional. That
makes all the difference. The Court requires someone like Harrington,
who had served his sentence, to prove that he remains under some
continuing restraint or loss of liberty in order to satisfy article 11.07’s
confinement requirement. But for someone like Gray, who seeks
ratification that his convictions disappeared with Thompson in “a puff
of smoke,” no such requirement is necessary.
Consequently, Ex parte Chance appears to end debate that Gray is
required by article 11.07 to prove some additional restraint on his
liberty when seeking to vacate his section 21.15 convictions in light of
declaration in Thompson that the statute violates the First
Amendment.
C. Gray also sought habeas relief under Article V,
Section 8 of the Texas Constitution, a second source of
jurisdiction.
In Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991), the
Court found jurisdiction under Texas Constitution, article V, section 8,
11
which grants plenary writ authority to district courts.
Hargett filed an article 11.07, section 2 writ application, evidently
on two claims: that the State breached the plea agreement and that he
received ineffective assistance of counsel. This Court dismissed “because
an applicant must be ‘in custody’ before an Art. 11.07 writ is properly
before this Court.” Id. at 867.
Hargett immediately “filed an amendment to his application to
the trial court,” sought habeas relief under Texas Constitution, article
V, section 8, and “alleged continued restraint in the form of impairment
of his right to military-retirement benefits.” Hargett, 819 S.W.2d at 867.
This Court approved such an amendment procedure, commenting
that Hargett’s “decision to pursue post-conviction relief under Tex.
Const., Art. V, § 8 in the district court overcame this obstacle.” Id.
Gray followed the same procedure. When the State filed its
response, challenging jurisdiction and lack of evidence of restraint,
Gray amended his application and designated alternative jurisdiction of
article V, section 8. See Gray Amend. Pet. (Jan. 15, 2015) (first page).
The signing of the F&Cs on January 12 did not cut off Gray’s
ability to amend his petition. He followed precisely the procedure
12
approved in Hargett of amending in the same cause number, alleging
article V, section 8. Just as in Hargett, the district court did not issue
the writ; instead the court instead denied an evidentiary hearing,
expansion of the record, and relief. Cf. Hargett, 819 S.W.2d at 868; see
generally Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008)
(discussing interplay between article 11.072, article V, section 8 and
appellate jurisdiction).
IV. Alternatively, Gray moves for dismissal without
prejudice to re-filing, or remand to consider affidavit
and testimony.
If the Court believes it is bound by the record before the signing of
the F&Cs --- and we know of no precedent or rule that imposes such a
restriction --- then Gray respectfully asks the Court to remand for a
hearing on the application and affidavit, followed by F&Cs to address
them. Alternatively, he asks the Court to dismiss the application
entirely, without a ruling on the merits, and without prejudice to re-
filing so he can re-file and attach the affidavit in a revised application.
To protect jurisdiction of his article V, section 8 amended
application, Gray filed a notice of appeal with the district clerk
February 11, the last day before expiration of the thirty-day appeal
13
period following the court’s January 12 F&Cs and denial. In light of
Hargett’s determination that courts of appeal possess jurisdiction over
article V, section 8 habeas applications, Gray did not want to risk loss of
appellate jurisdiction over that aspect of his application and bar to
filing another one. Gray’s notice of appeal does not deprive this Court of
jurisdiction over his article 11.07 application.
CONCLUSION
Donald Lee Gray has met his burden of proof for habeas relief.
1. He has proved that he was convicted of Texas felonies;
2. He has proved that he was convicted of a Penal Code statute
held unconstitutional;
3. He satisfies the requirements of Texas Constitution, Article V,
§ 8, and Code of Criminal Procedure article 11.07.
4. He is not procedurally barred from relief.
RELIEF
WHEREFORE, Gray respectfully asks that a writ of habeas
corpus be issued to the Smith County 241st District Court and the
Smith County District Clerk, ordering Mr. Gray’s convictions vacated
and his indictments dismissed. Mr. Gray prays for all other relief
required by law or equity.
14
Respectfully submitted this 12 day of
February 2015,
/s/ James W. Volberding
______________________________
JAMES W. VOLBERDING
SBN: 00786313
First Place
100 E. Ferguson Street
Suite 500
Tyler, Texas 75702
(903) 597-6622
(866) 398-6883 (fax)
e-mail: jamesvolberding@gmail.com
Counsel for Donald Lee Gray
Certificate of Compliance
Pursuant to Rule 73.1(f), I hereby certify that this pleading
contains 2,836 words, measured in MS Word for MAC version 14.3.6,
from the statement of jurisdiction through the prayer.
/s/ James W. Volberding
____________________________________
JAMES W. VOLBERDING
15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this pleading has
been delivered this 12 day of February 2015 to:
Smith County District Attorney
101 N. Broadway, Fourth Floor
Tyler, TX 75702
by the following means:
_____ By U.S. Postal Service Certified Mail, R.R.R.
_____ By First Class U.S. Mail
_____ By Special Courier _______________________
_X___ By Hand Delivery
_____ By Fax before 5 p.m.
_____ By Fax after 5 p.m.
_____ By Electronic Filing.
/s/ James W. Volberding
____________________________________
JAMES W. VOLBERDING
16