Colton Lester v. Cecil E. Berg, Seth Johnson, Johnson Law Office, Pllc, Dustin Andreas, and Phillips and Andreas, Pllc ( 2022 )

Supreme Court of Texas
══════════
No. 21-0775
══════════
Colton Lester,
Petitioner,
v.
Cecil E. Berg, Seth Johnson, Johnson Law Office, PLLC, Dustin
Andreas, and Phillips and Andreas, PLLC,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Ninth District of Texas
═══════════════════════════════════════
JUSTICE BUSBY, concurring in the denial of the petition for review.
Colton Lester was charged with two separate offenses of online
solicitation of a minor, and he pleaded guilty to one count of attempted
solicitation under a subsection of the statute that had been declared
unconstitutional. After obtaining habeas relief, he sued his criminal
defense attorneys for malpractice. The trial court granted summary
judgment for the attorneys, and the court of appeals affirmed.
The court of appeals took the position that the Court of Criminal
Appeals’ decision granting habeas relief in Ex parte Lester and our
Court’s analysis granting wrongful-imprisonment compensation in In re
Lester were wrong, based on the clerk’s record as the court of appeals
parsed it.1 Although I agree with my colleagues that this case does not
meet the criteria for granting discretionary review, our denial of Lester’s
petition is not an endorsement of the court of appeals’ undertaking, or
of its conclusion.
Lester pleaded guilty to attempted online solicitation of a minor.
The trial court ordered deferred adjudication of a “third-degree felony”
under Texas Penal Code subsection “33.021(f).”2 Subsection (f) relates
to two crimes, subsections 33.021(b) and 33.021(c), which are variations
of an offense entitled “online solicitation of a minor.” TEX. PENAL CODE
§ 33.021. An offense under subsection (c) is a second-degree felony, and
an offense under subsection (b) is a third-degree felony.3
Though the State charged Lester with two offenses, Lester
pleaded guilty to only one: a third-degree felony corresponding to an
offense under subsection (b). The order of deferred adjudication reflects
as much, as Lester was found guilty of a third-degree felony. The Court
1No. 09-19-00305-CV, 2021 WL 3196530, at *11 (Tex. App.—Beaumont
July 29, 2021) (citing Ex parte Lester, No. WR-88, 227-01, 2018 WL 1736686(Tex. Crim. App. Apr. 11, 2018) (per curiam), and In re Lester, 602 S.W.3d 469(Tex. 2020)).
2 Id. at *2–3.
3 An offense under Subsection (b) is a felony of the third degree,
except that the offense is a felony of the second degree if the
minor is younger than 14 years of age or is an individual whom
the actor believes to be younger than 14 years of age at the time
of the commission of the offense. An offense under Subsection
(c) is a felony of the second degree.
TEX. PENAL CODE § 33.021(f).
2
of Criminal Appeals so held, explicitly stating that Lester was convicted
of an offense under subsection (b). Ex parte Lester, 2018 WL 1736686,
at *1 (“Applicant was convicted of attempted online solicitation of a
minor and sentenced to imprisonment. TEX. PENAL CODE § 33.021(b).”).
At the time Lester committed his crime, subsection (b) had been
declared unconstitutional.4 For that reason, the Court of Criminal
Appeals granted Lester’s application for a writ of habeas corpus,
declaring his conviction under subsection (b) “not valid.” Id. Relying on
that decision, our Court determined that Lester could seek
compensation for wrongful imprisonment under the Tim Cole Act. In re
Lester, 602 S.W.3d at 475.
In its analysis, the court of appeals observed that Lester’s guilty
plea also “fits the ‘solicit’ verbiage of section 33.021(c), which has . . .
never been held unconstitutional.” 2021 WL 3196530, at *10. The court
of appeals theorized that Lester might have been convicted under
section 33.021(c), which had no constitutional infirmity. The court of
appeals also stated that the “appellate record does not support a finding
that Lester’s conduct was not a crime at the time it was committed,”
venturing that our Court’s opinion in In re Lester “would be incorrect
based on the record now before us.” Id. at *11.
The flaw in this analysis is that Lester was not convicted of any
crime save an unconstitutional one. As the Court of Criminal Appeals
determined, Lester’s conviction under subsection (f) was to an offense
4Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Legislature
later amended the statute. Act of May 5, 2015, 84th Leg., R.S., ch. 61, § 2, 2015
Tex. Gen. Laws 1036, 1036.
3
under subsection (b), not (c). Ex parte Lester, 2018 WL 1736686, at *1.
For that reason alone, the Court of Criminal Appeals granted habeas
relief.5
The Court of Criminal Appeals has the final word on matters of
criminal law.6 In its opinion, the court of appeals should have adhered
to the pronouncements of the Court of Criminal Appeals in matters of
criminal law, as well as to this Court’s decision in In re Lester.7
J. Brett Busby
Justice
OPINION FILED: November 4, 2022
5 A concurring judge would have granted relief based on ineffective
assistance of counsel instead. 2018 WL 1736686, at *2 (Yeary, J., concurring).
6 The Texas Constitution provides that the “Court of Criminal Appeals
shall have final appellate jurisdiction coextensive with the limits of the state,
and its determinations shall be final, in all criminal cases of whatever
grade . . .” TEX. CONST. art. V § 5(a) (emphasis added).
7 “It is fundamental to the very structure of our appellate system that
this Court’s decisions be binding on the lower courts.” Dall. Area Rapid Transit
v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex.
2008). “[I]n reaching their conclusions, courts of appeals are not free to
disregard pronouncements from this Court, as did the court of appeals here.”
In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (citing Lofton v. Tex. Brine Corp.,
777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from
criticism from courts of appeals; rather they must follow this court’s
pronouncements.”)).
4