D^.*^* WR-83,943-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/15/2017 4:44 PM Accepted 12/18/2017 3:15 PM NO. WR-83,943-01 DEANA WILLIAM^
IN THE TEXAS filed COURT OF CRIMINAL APPEALS C0URT %g^AL APPEALS AUSTIN, TEXAS deana Williamson, clerk
EX PARTE
KENNETH JAYE MCCLELLAN
APPLICANT
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW KEENETH JAYE MCCLELLAN and moves this
Honorable Court to reconsider its decision of November 15, 2017 and remand the
case to the trial court for an evidentiary hearing and would respectfully show unto
the Court the following:
1. Applicant requests this Honorable Court remand the cause for an
evidentiary hearing because a hearing was requested by Relator in his original
Application for Writ of Habeas Corpus. August 25, 2015. (Ex. 1 attached). Three
days after the State filed its proposed findings and order and before Applicant
could file his proposed findings and order, the trial court recommended relief be
(.T5^' denied. (Ex. 2-3 attached). Applicant was effectively denied an evidentiary
hearing that could have provided this Honorable Court with additional facts that
could warrant relief for Applicant based on the Court's opinion in this case. For
example, Applicant could show that he would not have entered a plea but for the
anti-defensive provisions of the statute.
2. Applicant would also respectfully request this Honorable Court revisit the
opinion in this case based on the fact that the burden appears to have been placed
upon him to show that the unconstitutional provisions had some effect on his
decision to enter a plea. Applicant would submit to the court that the party
benefiting from the error (the State) has the burden to prove beyond a reasonable
doubt that the error did not affect the outcome of the case. See Phillips v. State, 193
S.W.3d 904 (2006).
Applicant requests this Honorable Court grant a rehearing and after a
rehearing the Court should reverse the conviction and sentence, or in the
alternative Applicant requests this Honorable Court to remand this case to the trial
court to conduct an evidentiary hearing.
CONCLUSION AND PRAYER
Applicant moves this case be remanded for hearing so that the record may be more fully developed at the trial court and for such other and further relief to which
the he is entitled.
Respectfully submitted,
Isi Blake R. Burns BLAKE R. BURNS bburnslaw@gmail.com 115 North Henderson Street Fort Worth, Texas 76102-1940 (817) 870-1544 fax (817) 870-1589 State Bar No. 24066989
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing Motion has been hand delivered to
the Honorable Sharen Wilson Assistant Criminal District Attorney of Tarrant
County, Texas on December 15, 2017.
Is/ Blake R. Burns BLAKE R. BURNS bburnslaw@gmail.com CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Applicant KENNETH JAYE
MCCLELLAN prays this Honorable Court to set this matter for heariiig and after a
full review to remand the cause for the trial court so that this case may be disposed
of in accordance with this Court's holdings in Ex Parte Lo, for a termination of his
requirement to register as a sex offender, and for other such relief to which the
Applicant may show himselfjustly entitled.
BLAKE R. BURNS 115 North Henderson Street Fort Worth, Texas 76102-1940 Bar No. 24066989 (817) 870-1544 FAX (817) 870-1589
NICK DAVIS 115 North Henderson Street Fort Worth, Texas 76102-1940 Bar No! 24065123 (817) 870-1544 FAX (817) 870-1589
EXHIBIT
\ FILiD TH^W8W£r NO. C-371-010555-1060758-A SEP 18 2015 TIME ^ffifc^r * EX PARTE § IN THE 371* JUDICftb- &&L*L DEPL^" .§• . § DISTRICT COURT OF -.• § . KENNETH J. MCCLELLAN § TARRANT COUNTY, TX
STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW
The State proposes the following Memorandum, Findings of Fact and
Conclusions of Law regarding the issues raised in the present Application for Writof
Habeas Corpus.
MEMORANDUM
The applicant, KENNETH J, MCCLELLAN ("Applicant"), alleges that he is
being unlawfully confined because the statute under which he was convicted has
been declared unconstitutional. See Application, p. 6.
In light of Applicant's contentions and the evidence presented in the Writ
Transcript, the Court should consider the following proposed findings of fact and
conclusions of law:
FINDINGS OF FACT
General Facts
L Applicant pled guilty, pursuant to a plea agreement, to the second degree felony offense of solicitation of a minor under 14 - online on November 28\ 2007. See Judgment, No. 1060758D. 2. In accordance with the plea agreement, Applicant was sentenced to three years confinement in the Texas Department of Criminal Justice - Institutional Division. See Judgment.
3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No. 106075BD.
Statute
4. The indictment alleged that Applicant solicited a minor online '% meet with [Applicant] with the intent that the minor would engage in sexual contact, sexual intercourse, or deviate sexual intefeourse, with said defendant." See Indictment, No. 1060758D.
5. Applicant was indicted and convicted for the offense of online solicitation of a minor under §33.021(c). See Indictment; Tex. Penal Code §33.021(c).
CONCLUSIONS OF LAW
General Law
1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977). An applicant "must prove by a preponderance of the evidence that the error contributedto his conviction or punishment." Ex parte Williams, 65 S.W.3d. 656, 658 (Tex. Crim. App. 2001).
2. Relief may be denied if the applicant states only conclusions, and not specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Grim. App. 1988).
3. Subsection (b) of section 33.021 of the Texas Penal Code was facially unconstitutional. See ExparteLo, 424 S.W.3d 10,14 (Tex. Crim. App. 2013); see also Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App,2014); Freeman v. State,425S.W.3d289(Tex. Crim. App.2014).
4. Because Applicant was convicted under subsection (c) of section 33.021 ofthe Texas Penal Code, the holding that subsection (b) of section 33.021 of the Texas Penal Code is unconstitutional does not apply to Applicant.
5. ThisCourtrecommends that Applicant's sole ground for'reliefbe DENIED.
WHEREFORE, the State prays that this Court adopt these Proposed Findings
of Fact and Conclusions of Law and recommend that Applicant's application be
DENIED.
SHAREN WILSON Criminal District Attorney Tarrant County
Andrea Jacobs, Assistant Criminal District Attorney State Bar No. 24037596 401 WestBelknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672
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D^.*^* WR-83,943-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/15/2017 4:44 PM Accepted 12/18/2017 3:15 PM NO. WR-83,943-01 DEANA WILLIAM^
IN THE TEXAS filed COURT OF CRIMINAL APPEALS C0URT %g^AL APPEALS AUSTIN, TEXAS deana Williamson, clerk
EX PARTE
KENNETH JAYE MCCLELLAN
APPLICANT
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW KEENETH JAYE MCCLELLAN and moves this
Honorable Court to reconsider its decision of November 15, 2017 and remand the
case to the trial court for an evidentiary hearing and would respectfully show unto
the Court the following:
1. Applicant requests this Honorable Court remand the cause for an
evidentiary hearing because a hearing was requested by Relator in his original
Application for Writ of Habeas Corpus. August 25, 2015. (Ex. 1 attached). Three
days after the State filed its proposed findings and order and before Applicant
could file his proposed findings and order, the trial court recommended relief be
(.T5^' denied. (Ex. 2-3 attached). Applicant was effectively denied an evidentiary
hearing that could have provided this Honorable Court with additional facts that
could warrant relief for Applicant based on the Court's opinion in this case. For
example, Applicant could show that he would not have entered a plea but for the
anti-defensive provisions of the statute.
2. Applicant would also respectfully request this Honorable Court revisit the
opinion in this case based on the fact that the burden appears to have been placed
upon him to show that the unconstitutional provisions had some effect on his
decision to enter a plea. Applicant would submit to the court that the party
benefiting from the error (the State) has the burden to prove beyond a reasonable
doubt that the error did not affect the outcome of the case. See Phillips v. State, 193
S.W.3d 904 (2006).
Applicant requests this Honorable Court grant a rehearing and after a
rehearing the Court should reverse the conviction and sentence, or in the
alternative Applicant requests this Honorable Court to remand this case to the trial
court to conduct an evidentiary hearing.
CONCLUSION AND PRAYER
Applicant moves this case be remanded for hearing so that the record may be more fully developed at the trial court and for such other and further relief to which
the he is entitled.
Respectfully submitted,
Isi Blake R. Burns BLAKE R. BURNS bburnslaw@gmail.com 115 North Henderson Street Fort Worth, Texas 76102-1940 (817) 870-1544 fax (817) 870-1589 State Bar No. 24066989
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing Motion has been hand delivered to
the Honorable Sharen Wilson Assistant Criminal District Attorney of Tarrant
County, Texas on December 15, 2017.
Is/ Blake R. Burns BLAKE R. BURNS bburnslaw@gmail.com CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Applicant KENNETH JAYE
MCCLELLAN prays this Honorable Court to set this matter for heariiig and after a
full review to remand the cause for the trial court so that this case may be disposed
of in accordance with this Court's holdings in Ex Parte Lo, for a termination of his
requirement to register as a sex offender, and for other such relief to which the
Applicant may show himselfjustly entitled.
BLAKE R. BURNS 115 North Henderson Street Fort Worth, Texas 76102-1940 Bar No. 24066989 (817) 870-1544 FAX (817) 870-1589
NICK DAVIS 115 North Henderson Street Fort Worth, Texas 76102-1940 Bar No! 24065123 (817) 870-1544 FAX (817) 870-1589
EXHIBIT
\ FILiD TH^W8W£r NO. C-371-010555-1060758-A SEP 18 2015 TIME ^ffifc^r * EX PARTE § IN THE 371* JUDICftb- &&L*L DEPL^" .§• . § DISTRICT COURT OF -.• § . KENNETH J. MCCLELLAN § TARRANT COUNTY, TX
STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW
The State proposes the following Memorandum, Findings of Fact and
Conclusions of Law regarding the issues raised in the present Application for Writof
Habeas Corpus.
MEMORANDUM
The applicant, KENNETH J, MCCLELLAN ("Applicant"), alleges that he is
being unlawfully confined because the statute under which he was convicted has
been declared unconstitutional. See Application, p. 6.
In light of Applicant's contentions and the evidence presented in the Writ
Transcript, the Court should consider the following proposed findings of fact and
conclusions of law:
FINDINGS OF FACT
General Facts
L Applicant pled guilty, pursuant to a plea agreement, to the second degree felony offense of solicitation of a minor under 14 - online on November 28\ 2007. See Judgment, No. 1060758D. 2. In accordance with the plea agreement, Applicant was sentenced to three years confinement in the Texas Department of Criminal Justice - Institutional Division. See Judgment.
3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No. 106075BD.
Statute
4. The indictment alleged that Applicant solicited a minor online '% meet with [Applicant] with the intent that the minor would engage in sexual contact, sexual intercourse, or deviate sexual intefeourse, with said defendant." See Indictment, No. 1060758D.
5. Applicant was indicted and convicted for the offense of online solicitation of a minor under §33.021(c). See Indictment; Tex. Penal Code §33.021(c).
CONCLUSIONS OF LAW
General Law
1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977). An applicant "must prove by a preponderance of the evidence that the error contributedto his conviction or punishment." Ex parte Williams, 65 S.W.3d. 656, 658 (Tex. Crim. App. 2001).
2. Relief may be denied if the applicant states only conclusions, and not specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Grim. App. 1988).
3. Subsection (b) of section 33.021 of the Texas Penal Code was facially unconstitutional. See ExparteLo, 424 S.W.3d 10,14 (Tex. Crim. App. 2013); see also Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App,2014); Freeman v. State,425S.W.3d289(Tex. Crim. App.2014).
4. Because Applicant was convicted under subsection (c) of section 33.021 ofthe Texas Penal Code, the holding that subsection (b) of section 33.021 of the Texas Penal Code is unconstitutional does not apply to Applicant.
5. ThisCourtrecommends that Applicant's sole ground for'reliefbe DENIED.
WHEREFORE, the State prays that this Court adopt these Proposed Findings
of Fact and Conclusions of Law and recommend that Applicant's application be
DENIED.
SHAREN WILSON Criminal District Attorney Tarrant County
Andrea Jacobs, Assistant Criminal District Attorney State Bar No. 24037596 401 WestBelknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672
A true copy of the above has been mailed to Applicant^ Mr. Kenneth J. McClellan, by and through his attorney of record, Hon. Blake Burns, at 115 N. Henderson Street, Fort Worth, Texas 76102 on the lo day ofSeptember, 2015.
*T Andrea Jacobs CERTIFICATE OF COMPLIANCE
The total number of words in this State's Proposed Findings of Fact and
Conclusions of Law is 4422 words as determined by the word count feature of
Microsoft Office Word 2010.
Andrea Jacobs NO. C-371.O10555-I06O758-A
EX PARTE § INTHE 371st JUDICIAL § DISTRICT COURT OF
KENNETH J. MCCLELLAN § TARRANT COUNTY, TX
ORDER
The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief KENNETH J, MCCLELLAN
("Applicant") requests be DENIED. The Courtfurther orders and directs: 1. The Clerk of this Court to file these findings and transmit them along withthe Writ Transcriptto the Clerkof the Courtof Criminal Appeals as required by law.
2. The Clerk of this Court to furnish a copy of the Court's findings to Applicant, Mr. Kenneth J. McClellan, by and through his attorney of record, Hon, Blake Bums, at 115 N. Henderson Street, Fort Worth, Texas 76102 (or to Applicant's most recent address), and to the post-conviction section of me Criminal District Attorney's Office.
SIGNED AND ENTERED this day of ,2QI5.
JUDGE PRESIDING NO. C-371-010555-1060758-A SEP 21 m
EX PARTE § IN THE 371**110!* DEPUTY § § DISTRICT COURT OF § KENNETH J. MCCLELLAN § TARRANT COUNTY, TX
The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief KENNETH J. MCCLELLAN ("Applicant") requests be DENIED. TheCourt further orders and directs: 1. The Clerk of this Court to file these fihdingsjand transmit them along with the Writ Transcript to theClerk of the Court of Criminal Appeals as required by law.
2. The Clerk of this Court to furnish a copy of the Court's fihdmgs to Applicant, Mr. Kenneth J. McClellan, by and through his attorney of record, Hon, BlakeBurns, at 115 N. Henderson Street; Fort Worth, Texas 76*02 (or to Applicant's most recent address), and to the post-cohviction section of'thisCriminal District Attorney's Office.
SIGNED AND ENTERED this ffl day of