McClellan, Kenneth Jaye

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 2015
• Docket: WR-83,943-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,943-01

EX PARTE KENNETH JAYE MCCLELLAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C371-010555-1060758-A IN THE 371ST DISTRICT COURT FROM TARRANT COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to online solicitation

of a minor and was sentenced to three years’ imprisonment.

Applicant contends, among other things,1 that the statute pursuant to which he was convicted,

Subsection 33.021(c) of the Texas Penal Code, is unconstitutional on its face when read in

conjunction with Subsection (d) of the statute as it existed at the time of Applicant’s offense.

1 This Court has considered Applicant’s other claims, and finds them to be without merit. 2

Applicant alleges that the two subsections read together render the statute both over-broad and vague

in violation the First Amendment of the United States Constitution. We order that this application

be filed and set for submission to determine first whether a facial challenge to the constitutionality

of a statute which has not been previously held unconstitutional may be made for the first time in

a post-conviction habeas application. If such a challenge is available for the first time by way of

post-conviction habeas review, then it must be determined whether Subsections 33.021(c) and (d)

of the Texas Penal Code, as they existed at the time of Applicant’s offense, are unconstitutionally

over-broad and vague in violation of the First Amendment. The parties shall brief these issues.

It appears that Applicant is represented by counsel. If that is not correct, the trial court shall

determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by

counsel, the trial court shall appoint an attorney to represent Applicant. TEX . CODE CRIM . PROC. art

26.04. The trial court shall send to this Court, within 30 days of the date of this order, a

supplemental transcript containing: a confirmation that Applicant is represented by counsel; the

order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with

this Court on or before February 8, 2016.

Filed: December 9, 2015 Do not publish