Texas Penal Code § 21.15(b)(1) made it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.”


In 2014, the Texas Court of Criminal Appeals in Ex parte Thompson declared the statute facially unconstitutional and that it infringed upon protected First Amendment speech.


In 2012, David Ray Lea pled guilty in Brazoria County to one count of improper visual photography, a state jail felony, and was given a two-year sentence.


That 2012 conviction posed a serious problem for Lea.


Defendant on Probation for Possession of Child Pornography


In April 2008, he pled guilty to three counts of possession of child pornography. The first count resulted in a two-year prison term. The other two counts resulted in 10-year prison terms but those sentences were probated for ten years.


The very day Lea was sentenced on the improper visual photography conviction, the State moved to revoke his probation on the two 10-year terms imposed in 2008. Because a conviction for a new offense while on probation is almost always grounds for revocation, the trial court revoked Lea’s probation and ordered him to serve the 10-year prison terms.


Previous Probation Revoked for Crime of Improper Visual Photography


In the wake of Thompson, Lea promptly filed two post-conviction applications for habeas corpus relief. One application sought to vacate his § 21.15(b)(1) conviction and the other sought reinstatement of his probation because the only basis for his revocation was the one ground, the improper visual photography conviction, which was found to be unconstitutional.


Both these habeas applications ended up before the Court of Criminal Appeals.


Last April, 2016, the state’s high court granted relief on the first habeas petition, vacating and setting aside Lea’s § 21.15(b)(1) conviction.


Improper Photography Conviction Set Aside


That did not end the court’s inquiry. The same day it reversed Lea’s improper visual photography conviction, April 6th, the court agreed to hear Lea’s claim that his probation should be reinstated. The court ordered the parties to submit briefs on this one issue.


In an unusual but professional move, the State conceded to the Court of Criminal Appeals that Lea’s probation should be reinstated. The state’s position, quite simply, was identical to Lea’s position—that a probation cannot not be revoked on the basis of a void statute.


The appeals court opened its analysis with the observation that “where a statute is found to be facially unconstitutional, it is void from its inception and should be treated as if it never existed.” In a word, all collateral consequences from a void conviction must be set aside.


But what about collateral consequences that occurred before a statute is found to be facially unconstitutional?


Unconstitutional Offense is Void from Inception, Never Existed


The Court of Criminal Appeals answered that question this way:


“There is no dispute that, at the time Lea was convicted of visual photography under Section 21.15(b)(1), this Court had not yet determined the statutory provision was unconstitutional on its face. Nor is there any dispute that a defendant’s community supervision can be revoked based on a sole violation of one condition, and that one condition of Lea’s supervision was that he not commit any crime. However, we now recognize that the statute under which Lea was convicted is void from its inception, and we have to set aside his conviction. The harm here flows from his void conviction, namely, the revocation of his community supervision based on an offense that never existed.”


Thus, this past November the appeals court set aside the revocation order of Lea’s probation and remanded to the trial court for its reinstatement.


The State should be commended for its handling of this case, conceding to the law rather than opposing it.