Rice, Kenneth Eugene Jr. ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,488-01
EX PARTE KENNETH EUGENE RICE JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F45892-B
IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY
YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.
DISSENTING OPINION
Applicant was convicted of online solicitation of a minor in violation of former
Section 33.021(b) of the Penal Code. TEX. PENAL CODE § 33.021(b). He was sentenced to
ten years’ imprisonment in count one of this cause. Applicant filed this writ of habeas
corpus contending that the statute under which he was convicted was found
unconstitutional. See TEX. CODE CRIM. PROC. art. 11.07.
Today, the Court grants post-conviction relief based on Ex parte Lo, in which the
Court held Subsection (b) of the former online solicitation of a minor statute to be
unconstitutional. See Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). But Applicant
has not demonstrated that his conduct constituted protected speech such that the statute
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may be said to have operated unconstitutionally as applied to him. I therefore dissent from
the Court’s order granting summary post-conviction habeas corpus relief for the reasons
stated in my dissenting opinions in Ex parte Fournier, 473 S.W.3d 789, 800–805 (Tex.
Crim. App. 2015) (Yeary, J., dissenting), and Ex parte Chavez, 542 S.W.3d 583, 584–85
(Tex. Crim. App. 2018) (Yeary, J., dissenting).
FILED: April 14, 2021
DO NOT PUBLISH