Nino, Samuel Jr

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-91,955-01
EX PARTE SAMUEL NINO, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F42357-A
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 four counts 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 three years’ imprisonment in count one, and five years’ imprisonment in the
remaining counts. Today, the Court grants post-conviction relief based on Ex parte Lo, in
which the Court concluded that Subsection (b) of the former online solicitation of a minor
statute was 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 may be said to have operated unconstitutionally as applied him. I therefore dissent
from the Court’s order granting summary post-conviction habeas corpus relief for the
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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).
In separate claims, Applicant has also alleged that his convictions—at least those
obtained under the second, third, and fourth counts of the indictment—are void for other
reasons, unrelated to the constitutionality of the statute of conviction. The State in its
response seems to concede error. The convicting court has made no recommendation with
respect to these separate claims. Rather than grant summary relief for all counts under Lo,
the Court today should either remand the cause for recommended conclusions of law from
the convicting court, or else file and set the application to examine these remaining
contentions. Because the Court does not, I respectfully dissent.
FILED: November 18, 2020
DO NOT PUBLISH