
    Ex parte Donald Ray CHANCE, Applicant.
    No. WR-81,136-01.
    Court of Criminal Appeals of Texas.
    May 7, 2014.
    Matt Horak, for Donald Ray Chance.
    William J. Delmore III, Houston, for State of Texas.
   OPINION

PER CURIAM.

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App.1967). Applicant was convicted of two counts of online solicitation of a minor and sentenced to concurrent terms of two years’ imprisonment for each count.

This Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App.2013). Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his convictions be set aside. The trial court recommends granting relief. After considering the trial court’s findings and the parties’ objections and responses regarding them, this Court agrees with the trial court, and relief is granted.

The judgments for both counts in Cause No. 10-05-05347-CR in the 410th District Court of Montgomery County are set aside. Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment so that the indictment may be disposed of in accordance with this Court’s opinion in Ex parte Lo. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice — Correctional Institutions Division and Pardons and Paroles Division.

COCHRAN, J., filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

COCHRAN, J.,

filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.

The Court properly grants prompt relief to applicant on his claim that his conviction under Section 32.021(b) was void ab initio because we have held that the “sexually explicit communications” statute is unconstitutional. It is hornbook law that

Generally, a statute that has been declared unconstitutional is void from its inception and cannot provide a basis for any right or relief. It is thus the general rule that an unconstitutional statute, even though it has the form and name of law, in reality is not law and in legal contemplation is as inoperative as if it had never undergone the formalities of enactment.

For this reason, 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.

As the United States Supreme Court explained over a century ago, in holding that a person may obtain habeas corpus relief if he has been convicted of a crime later declared unconstitutional,

The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws.

The idea that one could be incarcerated for conduct that has been held not to be criminal “inherently results in a complete miscarriage of justice.” Therefore, most federal courts, including the Fifth Circuit, hold that one who has been convicted under a penal statute that is later found unconstitutional is “actually innocent” of any crime because the “core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law.”

We follow this “void ab initio” concept. For example, we quoted the above sectioii of Texas Jurisprudence in Reyes d. State, as we held that the Speedy Trial Act, which had previously been held uncohstitu-tional in Meshell v. State, was void ab initio, unenforceable, and could provide no relief to anyone. As if beating a dead horse, we said, “an unconstitutional statute is void from its inception!;] ... when a statute is adjudged to be unconstitutional, it is as if it had never been passed!;] • • • the statute is stillborn, ... [and] had been fatally smitten by the Constitution at its birth!,] • • • [and] is of no rrlore force or validity than a piece of blank paper, and is utterly void.”

A penal statute that has been declared unconstitutional cannot suddenly rise like Phoenix from the ashes just because a defehdant did not challenge its constitutionality before it had been declared unconstitutional in some other case. An unconstitutional penal statute is void for all comers, those who have already been convicted of it before it was declared void, as well as those prosecuted under it after it had been declared void. It has long been held that a person convicted under a statute later declared to be void is entitled to relief when he raises that claim for the first time in a writ of habeas corpus.

As the Fifth Circuit has explained, a person who is convicted of a void penal offense, is “actually innocent” of any crime. Actual innocence does not depend upon complaining about one’s innocence in the trial court before the penal statute was declared void. For example, in Raven-bark v. State, the Houston Fourteenth Court of Appeals ignored the defendant’s ineffective-assistance-of-counsel claim on appeal and summarily reversed his conviction and entered a judgment of acquittal because the stalking statute had been found facially unconstitutional after his conviction. The court of appeals granted relief even though the defendant never raised the issue on appeal, not even after we held the stalking statute unconstitutional. No matter. He was innocent of the crime of stalking because that statute had been found void by this Court. All courts grant relief to a person convicted under a void penal statute with the sole exception that if the parties have mutually benefitted from the statute, they are es-topped from later complaining about that benefit.

In Karenev v. State, we held that a defendant could not raise a facial challenge to the constitutionality of a statute for the first time on appeal. But that situation is entirely different from the present one. In Karenev, the defendant was attacking a valid statute (or at least one that had not yet been declared void); in the present case, applicant is requesting relief for a conviction of a non-crime. He is actually innocent of any criminal wrongdoing because the penal statute under which he was convicted has already been declared nonexistent. He may take advantage of that “void ab initio” status today, yesterday, tomorrow, or even ten years from now. Anyone who has been convicted under the now void provisions of Section 32.021(b) is “innocent” and may obtain an acquittal, whether it is in the trial court, on direct appeal, or in a habeas proceeding. That is constitutionally required. That is hornbook law.

KELLER, P. J.,

filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

Applicant claimed at trial that the statute under which he was prosecuted was unconstitutional because it was overly broad, but he failed to litigate that claim on direct appeal. In its answer to the habeas application, the State contends, among other things, that applicant forfeited his claim by failing to raise it on direct appeal. Relying upon our decision in Karenev v. State, the State contends that a “facial challenge to the constitutionality of a statute does not implicate the ‘jurisdiction’ of a trial court, and is based upon a right that is subject to forfeiture by inaction.” The State argues that “applicant could have complained of the facial unconstitutionality of the statute in his direct appeal from the original judgment of conviction. Having failed to do so, he cannot raise the issue for the first time in a postco.nviction writ after his probation was revoked.” The Court grants relief without addressing this contention. I dissent because I think that the Court as a whole should address the State’s claim after full briefing by the parties.

Ordinarily, a claim is not cognizable on habeas if it could have been, but was not, raised on direct appeal. In Karenev v. State, we held that a facial challenge to the constitutionality of a statute — even one that defines the offense charged — is a claim that can be forfeited. It would be anomalous to hold that a claim can be forfeited for the purpose of direct appeal but not for habeas. Perhaps Karenev can be meaningfully distinguished from the present case because, here, applicant at least raised his claim at trial. Or perhaps Karenev can be distinguished on the basis that the statute in that case had not been ruled unconstitutional while the statute at issue in the present case has. If the latter is the case, then a defendant might forfeit a facial challenge to the constitutionality of the statute for the purpose of direct appeal, but then be permitted to raise it on habeas if someone else later mounts a successful challenge. Such a divergence of results might be justified by judicial economy concerns (because most facial challenges to statutes are unmeritorious) or for other reasons.

The facial constitutional challenge at issue in Karenev was based on the First Amendment, and, in the First Amendment context, rules about standing are relaxed to allow a person to lodge a facial challenge, even if the statute is not unconstitutional as to him, in order to prevent the chilling of protected expression. The statute that defines the offense charged in the present case was ruled unconstitutional in Ex parte Lo on First Amendment grounds. If a defendant fails to timely assert a First Amendment challenge to a statute, has he failed to serve the anti-chilling-effect purpose of the liberalized standing rule? And, perhaps most important, should such a defendant be required to show that the law is unconstitutional as to him? We held in Lo that the statute was overly broad, in that it prohibited “a wide range of constitutionally protected speech,” but we do not know whether the conduct for which applicant was convicted fell within this constitutionally protected range or outside of it. There might be a difference between (1) a defendant who engages in conduct that was legitimately criminalized but who is charged under a constitutionally overbroad statute, and (2) a defendant who engages in conduct that cannot constitutionally be criminalized (an example of the latter being the defendants convicted of homosexual conduct in Lawrence v. Texas).

The concurrence contends that it is “hornbook law” that, once a law defining a crime has been held unconstitutional on its face, the law becomes “void ab initio” and anyone convicted under that law may challenge it in a habeas proceeding even if he has never challenged it before. The concurrence cites a few cases in which defendants have obtained habeas relief under those circumstances. For a variety of reasons, the cases cited by the concurrence are potentially distinguishable.

As the concurrence acknowledges in a parenthetical, the Siebold case involved a mere claim that the statute was facially unconstitutional — a claim that the Supreme Court ultimately resolved against the habeas applicant. In Karenev, we declined to follow Siebold’s pronouncement that such a claim could be considered for the first time on habeas, and we observed that the Supreme Court had “backed off’ from that pronouncement in subsequent cases.

The Davis and Hiett cases cited by the concurrence were ones in which the defendant did raise his claim in an earlier proceeding. Many of the federal cases cited by the concurrence deal with the interplay between two federal habeas statutes and whether the failure to raise a claim in an initial habeas proceeding under one statute will bar a subsequent habeas proceeding under the other statute. These cases seem to suggest that the defendants had no earlier opportunity to raise thfeir claims because the law of the circuit clearly foreclosed those claims at the ttoie. The Tenth Circuit, however, has criticized these cases and their use of a “circuit foreclosure test.”

The concurrence says that most federal courts, including the Fifth Circuit, hold that a person who has been convicted under a statute later found unconstitutional is “actually innocent.” The concurrence says that applicant is “actually innocent,” and so is anyone who has been convicted under the same statute. If applicant is actually innocent, perhaps he is entitled to health benefits coverage and to compensation from the State of Texas for each year he was incarcerated. Or perhaps not,

This case presents important questions regarding the applicability of habeas cog-nizability rules, the scope of the holding in Korenev, and the meaning of “aetdal ihno-cence” in this context. The concurrence believes the answers are obvious, and it may be correct that the rule of procedural default articulated by Korenev must be limited to situations hi which the statute has not yet been declared unconstitutional. But if so, we should say so and explain why in a written opinion. This is not the only case before us that raises this issue, and the State has asked us to address it. I would do so. Because the Court does not, I respectfully dissent. 
      
      . See Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App.2013) (online-solicitation statute, creating third degree felony offense of communicating in a sexually explicit manner with a person believed to be a minor with an intent to arouse or gratify sexual desire, violated First Amendment and was facially unconstitutional).
     
      
      . 12B Tex. Jur. 3d Constitutional Law § 57, at 97 (2012); see also 16A Am Jur. 2d Constitutional Law § 195-96, 61-65 (2009) (setting out law and collecting cases).
     
      
      . For example, this Court summarily reversed the defendant’s conviction for abandoning his wife when that penal statute had previously been held unconstitutional. McFarlin v. State, 123 S.W. 133 (Tex.Crim.App.1909). We did not inquire about whether the defendant had attacked the constitutionality of the statute in his own trial, because the statute had been declared unconstitutional in a different case. Instead, we simply announced,
      The law upon which this prosecution is predicated was held by this court unconstitutional. See Ex parte Frank Smythe, 56 Tex.Crim. 375, 120 S.W. 200 (1909). There being no valid law upon which to predicate a prosecution, the judgment is reversed, and the prosecution ordered dismissed.
      
        Id.
      
     
      
      
        .Ex parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879) (addressing petitioner’s claim in habeas proceeding, but finding that the statute criminalizing interference with the supervisors of election was not void and that the convictions were valid, denying habeas relief); see also Hiett v. United States, 415 F.2d 664, 666 (5th Cir.1969) ("It is well settled that if the statute under which appellant has been convicted is unconstitutional, he has not in the contemplation of the law engaged in criminal activity; for an unconstitutional statute in the criminal area is to be considered no statute at all.”).
      And the principles set out in Ex parte Siebold have not withered away or been jettisoned in the "modern" era. In State v. Benzel, 220 Wis.2d 588, 583 N.W.2d 434 (Wis.Ct.App.1998), the Wisconsin court granted relief to the defendant who had been convicted of violating the drug tax-stamp statute which had later been declared unconstitutional. Id. at 436. The court rejected the State’s argument that the defendant was not entitled to relief because he had pled guilty and had not himself attacked the constitutionality of the statute in the trial court. Id. The court explained that normally "even a claim of a constitutional right will be deemed waived unless timely raised before the trial court,” but this case was different because "the conduct in question cannot constitutionally be punished in the first place.” Id. (relying on "an almost identical issue” in United States v. United States Coin & Currency, 401 U.S. 715, 723-24, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971)). As the court stated, the failure to grant relief to all who have been convicted under a statute declared to be unconstitutional would lead "to the untenable result that a person stands convicted for conduct which has been held constitutionally immune from punishment.” Id. Further, relief was required by the application of simple logic: “A court cannot acquire jurisdiction to try a person for an act made criminal only by an unconstitutional law.” Id. (collecting cases). Therefore, the logic goes, "an offense created by an unconstitutional statute is no longer a crime and a conviction under such statute cannot be a legal cause for imprisonment.” Id. And the court also relied upon an earlier decision which had held that this rule and logic applied even when the defendant had pled guilty to the now-non-existent offense. Id.
      
      A federal district court also relied on United States v. United States Coin & Currency, in holding that the defendants were entitled to both relief from their federal convictions under the IRS law previously deemed unconstitutional, as well as the return of the fines that they had paid. The government did not oppose granting relief on the convictions because the penal law had been held unconstitutional in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), but it did object to repaying the fines. The district court disagreed, explaining that Justice Harlan, in United States v. United States Coin & Currency, had said that “Marchetti and Grosso [v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)] dealt with the kind of conduct that cannot constitutionally be punished in the first instance.” United States v. Lewis, 342 F.Supp. 833, 835 (E.D.La.1972) (quoting 401 U.S. at 723, 91 S.Ct. 1041). Therefore, complete retroactivity applied because the statute had been found unconstitutional. Id. The federal district court concluded that the defendants had pled guilty "under the duress of penalties provided by a statute since declared unconstitutional” and not knowing that those statutes would eventually be held unconstitutional. The court concluded that, although "there are no means available to compensate a person who has been imprisoned for violating a statute that is subsequently found constitutionally void and retrospectively applied, there is always a means for such a person to recoup his losses when the loss takes the form of a monetary fine.” Id. at 836. Thus, the convictions were voided and the government was ordered to repay the fines. Id.
      
     
      
      . Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
     
      
      . See Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir.2001); see also In re Jones, 226 F.3d 328, 334 (4th Cir.2000) (when law was settled at time of defendant’s conviction but later "the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal,” he may obtain relief in a subsequent habeas proceeding); Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.1999) ("The holding of [the] Supreme Court ... establishes the petitioner was convicted for a nonexistent offense”); In re Davenport, 147 F.3d 605, 611 (7th Cir.1998) (postconviction procedure is inadequate if it denies a defendant the opportunity for judicial rectification Qf “so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.”); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997) ("prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate” may challenge it for the first time in a subsequent habeas proceeding).
      The New Jersey Supreme Court long ago set out the general rule:
      [I]n case of conviction under an unconstitutional law, the judgment thereon may be impeached in habeas coipüs proceedings to establish the right of the person detained of his liberty and that, in such case, the trial court is without jurisdiction; that the judgment is utterly void and may be collaterally attacked.
      
        Ex parte Rose, 122 N.J.L. 507, 6 A.2d 388, 389 (1939). The supreme court wept op:
      In the case under cOPsideratioP, it is apparent that the statute having been declared unconstitutional, there was no jurisdiction in the trial court, aqd any propeedings thereunder were wholly void. And this conclusion is not shaken because the prisoner pleaded guilty. There was rto violation of law and no offense committed. Hence the prisoner is hot lawfully detained.
      
        Id. The rule has not changed.
     
      
      .753 S.W.2d 382, 383-84 (Tex.Crim.App.1988).
     
      
      . 739 S.W.2d 246 (Tex.Crim.App.1987).
     
      
      . Reyes, 753 S.W.2d at 383.
     
      
      . See Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116 (1900) ("As the indictment against Moore was evidently framed under this act [prohibiting the sale of alcohol in specified counties which was held facially unconstitutional in a companion case], the sentence against him, though based upon a plea of guilty, was a mere nullity, and he ought to have been discharged. It seems to be now well settled that, where one is indicted and tried under an unconstitutional statute, he may, even after final conviction and sentence, obtain his discharge from custody on a writ of habeas corpus.”) (citing Siebold, supra note 4 and collecting cases from numerous jurisdictions). In Moore, the Georgia Supreme Court quoted an early hornbook:
      "An unconstitutional enactment is never a law; and, if there can be a case in which a conviction is illegal and without jurisdiction, it seems that such a case is presented when it appears either that there is no law making criminal the alleged crime, or authorizing its prosecution in the court wherein the sentence has been imposed.”
      
        Id. at 116 (quoting 2 Freem. Judgm. p. 1092, § 624.).
     
      
      . Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir.2001) (although "[c]ourts have framed the actual innocence factor differently ... the incarceration of one whose conduct is not criminal 'inherently results in complete miscarriage of justice.' ")
     
      
      . See note 6, supra, and the cases cited therein.
     
      
      . 942 S.W.2d 711 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
     
      
      . Id. at 711; see also Golson v. State, 931 S.W.2d 705, 706 (Tex.App.-Corpus Christi 1996, no pet.) (defendant first raised challenge to stalking conviction on motion for rehearing in court of appeals, but because statute had been declared facially unconstitutional, defendant was summarily entitled to acquittal on appeal); Atkinson v. State, No. 03-96-00497-CR, 1997 WL 304176, *1 (Tex.App.-Austin June 5, 1997, no pet.) (not designated for publication) (defendant who had been convicted of stalking was summarily acquitted on appeal after statute was declared facially unconstitutional and was void from its inception).
     
      
      . "Although an act be unconstitutional and void, it will operate as an estoppel upon the party applying for it, and procuring its passage and accepting its benefits.” 2 Herman, Commentaries on the Law of Estoppel and Res Judicata, § 1068, at 1198; see Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509, 516 (1954) ("[Wjhile an unconstitutional statute does not convey any rights, duties or obligations and is in legal contemplation inoperative ab initio[,] nonetheless the parties may so deal with each other relying upon the validity of the statute that neither may invoke the aid of the courts to undo what they have done.”).
     
      
      . 281 S.W.3d 428 (Tex.Crim.App.2009).
     
      
      . Id. at 434.
     
      
      . His direct appeal was dismissed for want of prosecution.
     
      
      . Ex parte Webb, 270 S.W.3d 108, 111 (Tex.Crim.App.2008). It is also generally true that claims that were raised on direct appeal are not cognizable on habeas. Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex.Crim.App.2008). But there is an exception to that rule "where our prior judgment is subsequently rendered void or where we have decided to apply relief retroactively after a subsequent change in the law.” Ex parte Drake, 883 S.W.2d 213, 214 (Tex.Crim.App.1994).
     
      
      . 281 S.W.3d 428, 434 (Tex.Crim.App.2009).
     
      
      . See Karenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008) (construing and analyzing the defendant’s claim "as including a complaint that the statute offends the First Amendment”), rev’d, 281 S.W.3d 428 (Tex.Crim.App.2009).
     
      
      . Sanchez v. State, 995 S.W.2d 677, 683 (Tex.Crim.App.1999).
     
      
      . 424 S.W.3d 10 (Tex.Crim.App.2013).
     
      
      . 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
     
      
      . Some of the cases relied upon by the concurrence seem to fall into this second category-
     
      
      . Ravenbark v. State, 942 S.W.2d 711 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
     
      
      . See Ex parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879).
     
      
      . 281 S.W.3d at 430-31. A recent law review article indicates that the position taken in Karertev is currently the majority view of federal and state courts. Ryan Walters, Note and Comment, Raise It or Waive It? Addressing the Federal and State Split in Authority on Whether a Conviction Under an Unconstitutional Statute is a Jurisdictional Defect, 62 Baylor L.Rev. 909, 913-15, 930-32 (Fall 2010).
     
      
      . See Davis v. United States, 417 U.S. 333, 334-341, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (raised and rejected on direct appeal); Hiett v. United States, 415 F.2d 664, 665-66 (5th Cir.1969) (raised at trial).
     
      
      . See Reyes-Requena v. United States, 243 F.3d 893, 901-04 (5th Cir.2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000); Wofford v. Scott, 177 F.3d 1236, 1243-44 (11th Cir.1999); In re Davenport, 147 F.3d 605, 610-11 (7th Cir.1998); In re Dorsainvil, 119 F.3d 245, 250-51 (3rd Cir.1997).
     
      
      . Abernathy v. Wandes, 713 F.3d 538, 545-46 (10th Cir.2013); Prost v. Anderson, 636 F.3d 578, 591-94 (10th Cir.2011). Instead, the Tenth Circuit simply asks "whether a petitioner's argument challenging the legality of his detention could have beeri tested in an initial [habeas proceeding]. If the answer is yes, then the petitioner may nqt resort to" subsequent habeas proceedings tinder the other statute. Abernathy, 713 F.3d at 547. In Abernathy, the prisoner argued that his claim was unavailable in the first habeas proceeding because it was resolved against him on direct appeal and that resolution became the law of the case, but the Tenth Circuit rejected that argument because the prisoner’s claim could still have been tested in the first habeas proceeding. Id. at 545.
     
      
      . Tex. Civ. Prac. & Rem.Code § 103.001.
     