Lea, David Ray

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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