Bernal, Caleb Patrick

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,469-01
EX PARTE CALEB PATRICK BERNAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F42292-B
IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY
YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.
DISSENTING OPINION
Applicant, Caleb Patrick Bernal, was convicted of online solicitation of a minor in
violation of former Section 33.021(b) of the Penal Code in 2008. TEX. PENAL CODE §
33.021(b). He was sentenced to two years’ imprisonment. 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. Applicant’s sentence has since
discharged; however, he contends that he is suffering collateral consequences due to his
conviction.
Today, the Court grants Applicant 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
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be unconstitutional. See Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). As Applicant
has not demonstrated that his conduct constituted protected speech such that the statute
may be said to have operated unconstitutionally as applied to him, I disagree with the
granting of relief. 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 21, 2021
DO NOT PUBLISH