Freeman, Corey Thomas v. State ( 2014 )


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  • 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    Do Not Publish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
    –2–
    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.
    –3–
    

Document Info

Docket Number: 05-12-00923-CR

Filed Date: 11/21/2014

Precedential Status: Precedential

Modified Date: 10/15/2015