Meismer, Donnie Ray

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-92,622-01

EX PARTE DONNIE RAY MEISMER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 59720-A IN THE 461ST DISTRICT COURT FROM BRAZORIA COUNTY

YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.

DISSENTING OPINION

Applicant was convicted of online solicitation of a minor and sentenced to forty-

two months’ imprisonment in violation of former Section 33.021(b) of the Penal Code. TEX. PENAL CODE § 33.021(b). Applicant filed his post-conviction application for writ of habeas corpus contending that the statute under which he was convicted was found unconstitutional. See TEX. CODE CRIM. PROC. art. 11.07.

Today, the Court grants post-conviction relief based on Ex parte Lo, in which the Court held Subsection (b) of the former online solicitation of a minor statute to be 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

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may be said to have operated unconstitutionally as applied to him. I therefore dissent from the Court’s order granting summary post-conviction habeas corpus relief for the 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).

FILED: June 23, 2021 DO NOT PUBLISH