OFFICIAL NOTICE FROM COURTOF CRIMINAL APPEALS OF TEXAS FILE COPY P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
,._~ ,.
11/26/2014 .,; ' •, '• .· . ·.• . ·' .. ELMORE, DEREK MARSHALh,,: Tr:·¢(.Np. QR(i7538A WR-82,491-01 On this day, the application fof'J 1:0.7)Nri.tof ljabeas Corpus has been received and presented to the Court. '·:•: •. ·~ · :· .. , <' · ·.·.:.:~~::,(.i(."· ·.··•· Abel Acosta, Clerk v JOHN W. STICKELS STICKELS & ASSOCIATES, P.C. 770 NORTH FIELDER ROAD ARLINGTON, TX 76012 * DELIVERED VIA E-MAIL *
_/
I NO. CR-07538
EX PARTE § IN THE 220™ JUDICIAL § § § DISTRICT COURT OF § DEREK MARSHALL ELMORE § § HAMILTON COUNTY, TEXAS
MEMORANDUM
1. The Court finds that the applicant was convicted under a statute (Texas Penal Code
§33.021(b)) that has been declared facially unconstitutional.
2. The Court recommends that the applicant's ground for relief be granted, and his
conviction for online solicitation of a minor be set aside.
ORDER
The Court directs the post-conviction writ clerk to:
1. File these fmdings and transmit them along with the current writ transcript to the Clerk of
the Court of Criminal Appeals as required by law. \
2. Furnish a copy of this order to the appellant's counsel, the Hon. John W. Stickels, 770
North Fielder Rd., Arlington, Texas 76012; and to the Hamilton County District
Attorney's Office.
SIGNED AND ENTERED THIS _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2014.
JUDGE PRESIDING Case No. - - - ' - - - - - (The Clerk of the convicting court will fill this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Derek Marshall Elmore
DATE OF BIRTH: November 1, 1984 --------~~------------------------------------- PLACE OF CONFINEMENT: ------------~------~-------------------
TDCJ-CID NUMBER: .,:;..17=3=5=06=5-·-------.-SID NUMBER:_0_7_87_8_8_72_ _ _ _~
(1) This application concerns (check all that apply):
0 a conviction 0 parole
0 a sentence 0 mandatory supervision
0 time credit 0 out-of-time appeal or petition for discretionary review
(2) What district court entered the judgment of the conviction you want relief from? (Include the court number and county.)
2201h Judicial District Court, Hamilton County
(3) What was the case number in the trial court?
CR-07538
(4) What was the name of the trial judge?
Honorable James Morgan
I Effective: January 1, 2014 (5) Were you represented by counsel? If yes, provide the attorney's name:
Yes, Ricky Bryan
(6) What was the date that the judgment was entered? (
{August 19, 2009
(7) For what offense were you convicted and what was the sentence?
Online Solicitation ofaMinor, TX Penal Code §33.021(£), 10 years
(8) If you were sentenced on more than one count of an indictment in the same court at t~e same time, what counts were you convicted of and what was the sentence in each count?
NIA
(9) What was the plea you entered? (Check one.)
0 guilty-open plea 0 guilty-plea bargain 0 not guilty 0 nolo contendere/no contest
Ifyou entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
0 no jury 0 jury for guilt and punishment 0 jury for guilt, judge for punishment
2 (11) Did you testify at trial?- If yes, at what phase of the trial did you.testify?
N/A
(12) Did you appeal froilt the judgment of conviction?
0 yes 1& no
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? _ ___;;_N:.;..;/A;_:__ _ _ _ _ _ __
(B) What was the case number? N/A ------------~-~~-----------------
(C) Were you represented by counsel on appeal? If yes, provide the attorney's name: \ N/A
(D) What was the decision and the date of the decision? ____N/A ____________ __;;_
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
0 yes ~ no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? NIA
(B) What was the decision and the date of the decision? N/A --~~~-----------
(14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas 'Code of Criminal Procedure challenging this conviction?
0 yes X no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals' writ number?------------
3 (B) What was the decision and the date of the decision?
(C) Please identify the reason that the current claims were not presented and cotild not have been presented on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal court? / 1 yes X no
If you answered yes, please provide the name of the court and the case number:
(16) If you are presenting a claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies)
1 yes 1 no
If you answered yes, answct' the following questions:
(A) What date did you present the claim?
(B) Did you receive a decision and, if yes, what was the date of the decision?
If you answered no, please explain why you have not submitted your claim:
4 (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. Ifyour grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. lfyou have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence., The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider, grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you · are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.
5 GROUND ONE:
Applicant was convicted under a state statute (Texas Penal Code, Sec. 33.021 (f)) that has since
been held to be facially unconstitutional by the Texas Court of Criminal Appeals.
FACTS SUPPORTING GROUND ONE:
Applicant was charged in a one count indictment, filed on Mar~h 9, 2009, for online solicitation
of a ~1inor in violation of Texas Penal Code, Sec. 33.021 (f) ("distribute sexually explicit
material to a minor" subsection). On August 19, 2009, Applicant was adjudicated guilty to count
one and was sentenced to I 0 years TDC which after conviction, was suspended for a term of I 0
years and was placed on community supervision pursuant to Art. 42.12 §3, C.C.P. The Texas
Free access — add to your briefcase to read the full text and ask questions with AI
OFFICIAL NOTICE FROM COURTOF CRIMINAL APPEALS OF TEXAS FILE COPY P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
,._~ ,.
11/26/2014 .,; ' •, '• .· . ·.• . ·' .. ELMORE, DEREK MARSHALh,,: Tr:·¢(.Np. QR(i7538A WR-82,491-01 On this day, the application fof'J 1:0.7)Nri.tof ljabeas Corpus has been received and presented to the Court. '·:•: •. ·~ · :· .. , <' · ·.·.:.:~~::,(.i(."· ·.··•· Abel Acosta, Clerk v JOHN W. STICKELS STICKELS & ASSOCIATES, P.C. 770 NORTH FIELDER ROAD ARLINGTON, TX 76012 * DELIVERED VIA E-MAIL *
_/
I NO. CR-07538
EX PARTE § IN THE 220™ JUDICIAL § § § DISTRICT COURT OF § DEREK MARSHALL ELMORE § § HAMILTON COUNTY, TEXAS
MEMORANDUM
1. The Court finds that the applicant was convicted under a statute (Texas Penal Code
§33.021(b)) that has been declared facially unconstitutional.
2. The Court recommends that the applicant's ground for relief be granted, and his
conviction for online solicitation of a minor be set aside.
ORDER
The Court directs the post-conviction writ clerk to:
1. File these fmdings and transmit them along with the current writ transcript to the Clerk of
the Court of Criminal Appeals as required by law. \
2. Furnish a copy of this order to the appellant's counsel, the Hon. John W. Stickels, 770
North Fielder Rd., Arlington, Texas 76012; and to the Hamilton County District
Attorney's Office.
SIGNED AND ENTERED THIS _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2014.
JUDGE PRESIDING Case No. - - - ' - - - - - (The Clerk of the convicting court will fill this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Derek Marshall Elmore
DATE OF BIRTH: November 1, 1984 --------~~------------------------------------- PLACE OF CONFINEMENT: ------------~------~-------------------
TDCJ-CID NUMBER: .,:;..17=3=5=06=5-·-------.-SID NUMBER:_0_7_87_8_8_72_ _ _ _~
(1) This application concerns (check all that apply):
0 a conviction 0 parole
0 a sentence 0 mandatory supervision
0 time credit 0 out-of-time appeal or petition for discretionary review
(2) What district court entered the judgment of the conviction you want relief from? (Include the court number and county.)
2201h Judicial District Court, Hamilton County
(3) What was the case number in the trial court?
CR-07538
(4) What was the name of the trial judge?
Honorable James Morgan
I Effective: January 1, 2014 (5) Were you represented by counsel? If yes, provide the attorney's name:
Yes, Ricky Bryan
(6) What was the date that the judgment was entered? (
{August 19, 2009
(7) For what offense were you convicted and what was the sentence?
Online Solicitation ofaMinor, TX Penal Code §33.021(£), 10 years
(8) If you were sentenced on more than one count of an indictment in the same court at t~e same time, what counts were you convicted of and what was the sentence in each count?
NIA
(9) What was the plea you entered? (Check one.)
0 guilty-open plea 0 guilty-plea bargain 0 not guilty 0 nolo contendere/no contest
Ifyou entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
0 no jury 0 jury for guilt and punishment 0 jury for guilt, judge for punishment
2 (11) Did you testify at trial?- If yes, at what phase of the trial did you.testify?
N/A
(12) Did you appeal froilt the judgment of conviction?
0 yes 1& no
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? _ ___;;_N:.;..;/A;_:__ _ _ _ _ _ __
(B) What was the case number? N/A ------------~-~~-----------------
(C) Were you represented by counsel on appeal? If yes, provide the attorney's name: \ N/A
(D) What was the decision and the date of the decision? ____N/A ____________ __;;_
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
0 yes ~ no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? NIA
(B) What was the decision and the date of the decision? N/A --~~~-----------
(14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas 'Code of Criminal Procedure challenging this conviction?
0 yes X no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals' writ number?------------
3 (B) What was the decision and the date of the decision?
(C) Please identify the reason that the current claims were not presented and cotild not have been presented on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal court? / 1 yes X no
If you answered yes, please provide the name of the court and the case number:
(16) If you are presenting a claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies)
1 yes 1 no
If you answered yes, answct' the following questions:
(A) What date did you present the claim?
(B) Did you receive a decision and, if yes, what was the date of the decision?
If you answered no, please explain why you have not submitted your claim:
4 (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. Ifyour grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. lfyou have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence., The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider, grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you · are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.
5 GROUND ONE:
Applicant was convicted under a state statute (Texas Penal Code, Sec. 33.021 (f)) that has since
been held to be facially unconstitutional by the Texas Court of Criminal Appeals.
FACTS SUPPORTING GROUND ONE:
Applicant was charged in a one count indictment, filed on Mar~h 9, 2009, for online solicitation
of a ~1inor in violation of Texas Penal Code, Sec. 33.021 (f) ("distribute sexually explicit
material to a minor" subsection). On August 19, 2009, Applicant was adjudicated guilty to count
one and was sentenced to I 0 years TDC which after conviction, was suspended for a term of I 0
years and was placed on community supervision pursuant to Art. 42.12 §3, C.C.P. The Texas
Court of Criminal Appeals holds that Sec. 33.021(b) is unconstitutional on its face because it is
over broad and criminalizes constitutionally protected speech in violation of the First
Amendment to the United States Constitution. Applicant is therefore confined solely under a
statute that has now been held to be unconstitutional on its face. Applicant should be granted
relief.
6 WHEREFORE, APPLICANT [ . PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION
This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalf of an applicant, for example, an applicant's attorney. An inmate is a person who is in custody. .. The inmate applicant must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the "Oath Before a Notary Public" as petitioner and then complete ''Petitioner's Information." A non~inrriate applicant must sign the :•oath Before a Notary Public" before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.
A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public" before a notary public and must also complete "Petitioner's Information." An inmate petitioner must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public and mustalso complete the appropriate "Petitioner's Information."
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF TARRANT
JOHN W. STICKELS being duly sworn, under oath says: 'I am the applicant I petitioner (circle one) in this action and know the contents of the above appl' adon for a writ of habeas corpus and, according to my belief, the facts state in t lie are true."
(
SUBSCRIBED AND SWORN TO BEFORE ME THIS 7TH DAY OF OCTOBER, 2014 !}
\ JlltktA ~-Jo~u~ Signaturl of Notary Public
7 PETITIONER'S INFORMATION
Petitioner's printed name: John W. Stickels
State b~r number, if applicable: 19225300
Addfess: 770 N. Fielder Rd.
Arlington, Texas 76012
j ohn@stickelslaw. cmn
Telephone: (817) 4 79-9282
Fax: (817) 622-8071
INMATE'S DECLARATION
I , - - - - - - - - - - - - - ' am the applicant I petitioner (circle one) and
being presently incarcerated in , declare under penalty of
perjury that, according to my beiief, the facts stated in the above application are true and correct.
Signed on--'---------,-----' 20 _ _ .
·signature of Applicant I Petitioner (circle one)
8 ' L
PETITIONER'S INFORMATION
Petitioner's printed name: John W. Stickels --------------------------- Address: 770 N. Fielder Rd.
johr1@stickelslaw.corh
Signed on Odobel '1 ,2oJ!i_.
Signature of Petitioner
r