Kirksey, Paul Lafayette ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,795-01
EX PARTE PAUL LAFAYETTE KIRKSEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR6072-B IN THE 424TH DISTRICT COURT
LLANO COUNTY
J OHNSON, J., filed a dissenting statement in which A LCALA, J., joined.
DISSENTING STATEMENT
The parties agree that applicant is entitled to relief pursuant to Ex parte Lo, 424 S.W.3d 10
(Tex. Crim. App. 2013), and the trial court found that relief should be granted. The fly in the
ointment is that applicant’s sentence has been discharged. This Court’s long-held position on the
availability of habeas relief when the actual sentence has been discharged is to deny relief unless the
applicant has plead collateral consequences. The collateral consequences of a conviction as a sexual
offender are severe, including limiting where one may reside, what professions one may practice,
whether one may possess a firearm, and who one may associate with.
This is not a case in which applicant asserts that the trial court did not inform applicant about
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possible immigration consequences or about the possible consequences of being labeled a thief and,
therefore, a liar. The collateral consequences of a conviction for a sexual offense are not mere
possibilities; they are set out in black-letter law. Among those clear and certain consequences are:
being on a public list of sexual offenders; having to report to the police changing one’s place of
residence; being unable to spend time with one’s minor children; being unable to go to theaters and
amusement parks because of the presence of children; even being unable to attend church. Properly
warned–or not–as to the consequences of a conviction, when a conviction is nullified, clearly the
consequences arising from that conviction should, nay must, be nullified also. If there is no
conviction, no valid collateral consequences can arise from it.
In this application, applicant’s counsel failed to plead collateral consequences, and the Court
therefore holds that applicant has failed to properly invoke this Court’s § 11.07 jurisdiction. The
result is that applicant’s writ is dismissed without prejudice, but “without prejudice” means that
applicant may legally file another application and raise the existence of collateral consequences in
that application.
Because such a subsequent application will not be barred by § 4, judicial economy suggests
that, in cases such as this one, which has clear and certain consequences, this Court should grant
relief without requiring an applicant to duplicate and supplement his prior application.1 Surely, when
an applicant is clearly entitled to relief and the collateral consequences are obvious and clear, we
should not waste our limited resources on two reviews when one will accomplish the correct result.
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Sexual offenses are perhaps the only class of crimes with such clear and certain collateral consequences. This
Court could choose to limit granting relief without a pleading of collateral consequences to that class and any future class
of offense that has clear and certain consequences that are controlled by statutes.
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Filed: November 2, 2016
Do not publish