APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO.
C-371-010555-1060758-A IN THE 371ST DISTRICT COURT FROM
Hervey, J., delivered the opinion of the Court in which
Keller, P.J., Keasler, Alcala, Richardson, Keel, and Walker,
and Newell, JJ., concurred.
Jaye McClellan pled guilty to online solicitation of a minor
under fourteen years of age pursuant to the pre-2015 version
of the statute. He was sentenced to three years'
confinement and was required to register as a sex offender
for 10 years. He did not appeal his conviction. He later
filed a post-conviction application for a writ of habeas
corpus arguing that the statute under which he was convicted
was facially unconstitutional. We filed and set the cause for
submission to review two issues:
(1) Can a defendant facially challenge the constitutionality
of a statute for the first time in a post-conviction
application even though the statute has not been previously
(2) Assuming that an applicant may do so, is the
solicitation-of-a-minor statute under which he was convicted,
as it existed when McClellan committed the offenses,
unconstitutionally vague and overbroad?
we filed and set this case for review, however, we decided
Ex parte Ingram v. State, PD-0578-16, 2017 WL
2799980 (Tex. Crim. App. June 28, 2017), in which we held
that the pre-2015 version of the
online-solicitation-of-a-minor statute is facially
constitutional. In light of that holding, we need not decide
the first issue asking whether McClellan can raise a facial
challenge to the online-solicitation-of-a-minor statute under
which he was convicted for the first time post-conviction.
statutory provisions at issue state that,
(a) In this section:
(1) "Minor" means:
(A) an individual who represents himself or herself to be
younger than 17 ...