Texas Court of Criminal Appeals
Ex parte Williams
No. WR-96,658-1 10/23/25
Issue:
Should the defendant’s application for writ of habeas corpus be granted after he was convicted for online solicitation of a minor under the former version of Penal Code §33.021(b) found unconstitutional in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)?
Holding:
Yes. In a per curiam opinion, the Court concluded that the defendant was entitled to habeas relief, to which the State had agreed, and the defendant’s conviction should be set aside. Read opinion.
Concurrence (Newell, J., joined by Richardson and Walker, JJ.):
“An opinion granting relief in this case should have been handed down months ago. … Both the State and the defense agree relief is warranted. So does the habeas court. So do I. But the continued refusal to follow this Court’s precedent by some members of this Court has led to the unnecessary delay in resolving what should have been an easy case.” Read concurrence.
Concurrence and dissent (Parker, J., joined by Finley, J.):
“My current thinking leads me to want to overrule Lo, but a majority of the Court declines to file and set this case to reconsider that decision. I dissent from that declination, because I would file and set the case to reconsider Lo. But longstanding precedent holds that a statute that has been held facially unconstitutional is void, and I agree with that precedent. Consequently, in my view, so long as Lo remains binding precedent, its effect of rendering the statute void remains, and Applicant is entitled to relief. Moreover, if I voted to deny relief and that vote resulted in this Court denying relief with a plurality decision, such action would create a walking contradiction—denying relief when majorities of the Court (albeit shifting ones) continue to adhere to legal propositions that, when combined, require that relief be granted.” Read concurrence/dissent.
Dissent (Schenck, P.J., joined by Yeary, J.):
“The question is whether, as Lo held, the proscription of [the “speech” involved] in Texas Penal Code §33.021(b) was so substantially overbroad as to compel its invalidation under the First Amendment. I believe Lo was wrong to answer ‘yes’ to that question at the time it was decided, and that further development of federal First Amendment jurisprudence only reinforces that conclusion,” citing United States v. Hansen, 599 U.S. 762 (2023). Read dissent.
Dissent (Yeary, J., joined by Schenck, P.J., and Keel, J. in part):
“I have long believed that this Court was clearly wrong when—nearly 12 years ago, in Lo—it declared that the former Texas online solicitation of a minor statute was facially unconstitutional in violation of the United States Supreme Court’s Overbreadth Doctrine. The Court has not so far shared my view on that question.” But the dissent contended that the U.S. Supreme Court’s decision in Hansen “has clarified the Overbreadth Doctrine in a way that arguably further undermines the Court’s decision in Lo. The Court should, therefore, not grant relief in this case without first addressing the continuing validity of the overbreadth analysis employed in Lo, in light of Hansen.” Read dissent.
Commentary:
The bottom line for this defendant is that he was granted habeas relief. But there appears to be much more going on here. There now seems to be a majority of the judges on the highest criminal court that believes Ex parte Lo was wrongly decided—that the version of the online-solicitation-of-a-minor statute in that case was in fact not unconstitutional on its face. At the very least, a majority of the court appears willing to revisit Ex parte Lo. The problem is that the Texas Legislature has since re-written §33.021 so that it does not run afoul of Ex parte Lo. Prosecutors should closely watch the court’s First Amendment jurisprudence. The opinions by the dissenting judges in this case suggest that the court may be willing to uphold some sex-crime statutes that previously might have been struck down by the analysis from cases like Ex parte Lo. But note that in June of this year, the court also held in Owens v. State that the harassment statute (Penal Code §42.07(a)(7)) violated the First Amendment.
Texas Courts of Appeals
State v. Chavez
No. 03-25-00124-CR 10/17/25
Issue:
If a search warrant for a blood sample is invalid because there was no oath or affirmation verbally administered, can the good-faith exception in Code of Criminal Procedure Art. 38.23(b) apply to allow the admission of the evidence?
Holding:
No. The good-faith exception requires objective, rather than subjective, good-faith reliance upon a search warrant. The Court concluded that a reasonable officer would have known that the search warrant in this case was invalid because a sworn affidavit was not filed and there was no oath or affirmation. “[T]elling an officer where to sign an affidavit is not the same as placing her under oath or asking her to confirm the truth of her statements. …” Read opinion.
Commentary:
Blood search warrants are commonplace today. With suspects all too often refusing to consent or withdrawing consent, such search warrants have become an effective means of gaining access to crucial evidence, especially in light of the increasing availability of magistrates to sign such search warrants. And the requirements for these search warrants are not complicated: probable cause to believe that the suspect operated a vehicle while intoxicated (in the typical case). As such, it is vital that officers seeking these warrants not “go through the motions,” even though they may obtain many, many of these warrants on a given night. The decision in this case is thorough and completely in keeping with the current law—both on the issue of whether an oath was actually made as to this warrant and whether the good-faith exception can apply to a case in which an oath is not made. Having said that, however, this is a State’s appeal, and a reading of the opinion suggests that the court of appeals may have reached a different result if the trial judge had denied the defendant’s motion to suppress. The trial judge had before him the affidavit and body-camera footage of the taking of the oath. It certainly seems like the officer believed that an oath was being made. Nevertheless, this decision should be a lesson for officers to make sure that they actually swear or make an oath in completing a search warrant affidavit. If the court finds that there was no oath, then there was no warrant, and the good-faith exception (in Texas) will not apply.
State v. Payne
No. 14-24-00798-CR 10/16/25
Issue:
Must an indictment under Penal Code §21.02 include all the elements of the underlying predicate offenses that constitute the manner and means of continuous sexual abuse of a young child?
Holding:
No. The indictment included the victim’s initials, the names and dates of the predicate offenses, the charged offense, and the fact that the victim was younger than 14, which the Court found gave the defendant sufficient notice. “When charging an offense for continuous sexual abuse of a young child, the State need not allege the specific manner and means by which the defendant allegedly committed the predicate ‘acts of sexual abuse’ to provide constitutionally sufficient notice of the crime with which the defendant is charged.” Read opinion.
Commentary:
The holding by the court of appeals in this case is based upon now very well-settled law. The whole purpose for the statute criminalizing continuous sexual abuse of a young child is to relieve the State of the requirement to plead the specific acts of sexual abuse or to elect upon which acts of sexual abuse it is basing its prosecution. All of the arguments raised by the defense in this case have been dealt with in the past, but this decision is still a good resource for child-abuse prosecutors. Apparently this decision also provides a reminder for some trial court judges.
State v. Navarro
No. 03-23-00637-CR 10/17/25
Issue:
May a judge grant a motion for new trial “in the interest of justice” if the defendant failed to articulate a valid legal claim in his motion?
Holding:
No. “[W]hile a prevailing movant may raise an issue in his motion for new trial that was not preserved at trial, he must still raise the issue in the motion for it to serve as the basis for the trial court’s ruling.” While the judge may have been entitled to correct an illegal sentence, the sentence in this case was not illegal or void. “And the court lacked discretion to grant the motion ‘in the interest of justice’ as a means of modifying or vacating its grant of shock probation because [the appellant] did not tie his interest-of-justice request to a valid legal basis for granting the motion but rather presented it as a standalone argument.” Read opinion.
Commentary:
The trial judge granted the defendant’s motion for new trial in this case on the basis that she did not realize that the defendant was not eligible for shock probation—a basis that the defendant did not argue in his motion for new trial. It is important to remember that, when a defendant attempts to argue— or a trial judge attempts to grant—a motion for new trial on a basis not originally set forth within the defendant’s motion, the State must object—as the State did in this case. This decision is completely in keeping with long-standing law on this issue. Prosecutors might want to keep watch over this decision for an additional holding that the court issued on a ground that the defendant did raise in his motion for new trial. The court held that a defendant’s Sixth Amendment right of confrontation does not apply to a deferred-adjudication community-supervision revocation hearing. The Court of Criminal Appeals has not yet addressed this issue on the merits. Perhaps it will do so in this case.
Attorney General Opinion Requests
RQ-0623-KP 10/22/25
Issue:
Does the suspension of an elected sheriff’s TCOLE license disqualify the sheriff from serving in that position, and if so, how does that disqualification affect deputies? Read opinion request.
Requested by:
Timothy M. Good, 18th Judicial District Attorney