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Ex parte McClellan

Court of Criminal Appeals of Texas

November 15, 2017

EX PARTE KENNETH JAYE MCCLELLAN, Applicant

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

          Hervey, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Alcala, Richardson, Keel, and Walker, JJ., joined.

          Yeary and Newell, JJ., concurred.

          OPINION

          HERVEY, J.

         Kenneth 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 held unconstitutional?
(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?

         Since 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.

         THE PRE-2015 STATUTE[1]

         The 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 ...

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