Ex parte Chang , 2016 Tex. Crim. App. Unpub. LEXIS 294 ( 2016 )

DISSENTING OPINION

Yeary, J., filed a 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.Crirm.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.