Williams, Eric Todd

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-96,658-01

EX PARTE ERIC TODD WILLIAMS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2012CR10649-W1 IN THE 379TH DISTRICT COURT
BEXAR COUNTY

SCHENCK, P.J., filed a dissenting opinion in which YEARY, J., joined.

OPINION
Our habeas Applicant, Eric Todd Williams, took and sent a photograph of his

genitals to someone known to him as a fourteen-year-old girl with the intent of

sexually gratifying himself or her in violation of Texas Penal Code § 33.021(b). He

is right in noting that this Court held the statute to be facially unconstitutional in Ex

parte Lo—despite its proper application to him—under the U.S. Supreme Court’s

substantial overbreadth doctrine. 424 S.W.3d 10, 19 (Tex. Crim. App. 2013).

Barring reconsideration, the majority is right in treating Lo as binding on the
WILLIAMS DISSENT—2

constitutional question, if not its availability in this setting. I further assume that Lo

was right in treating the doctrine of substantial overbreadth as available under

existing U.S. Supreme Court precedent interpreting the U.S. Constitution’s First and

Fourteenth Amendments. Beyond that, I disagree with everything that is transpiring

here.

No one seems to doubt that Messrs. Lo and Williams have no First

Amendment right to sexualize children or use them for their sexual gratification.

Even as among adults, the “speech” activity involved here would lie at “the outer

perimeters of the First Amendment,” if at all. Barnes v. Glen Theatre, Inc., 501 U.S.

560, 566 (1991); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975). The question

is whether, as Lo held, the proscription of it in Texas Penal Code § 33.021(b) was so

substantially overbroad as to compel its invalidation under the First Amendment. I

believe Lo was wrong to answer “yes” to that question at the time it was decided,

and that further development of federal First Amendment jurisprudence only

reinforces that conclusion. Indeed, I believe Lo’s holding has been fatally

undermined by the U.S. Supreme Court’s recent overbreadth decision in United

States v. Hansen, 599 U.S. 762 (2023), and other like holdings re-affirming the

states’ rights to regulate speech, such as that reached by former Penal Code

§ 33.021(b)’s proscription on communications aimed at children for the purpose of

sexual gratification. E.g., Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 468 n.2
WILLIAMS DISSENT—3

(2025) (gathering authorities confirming states’ heightened authority to proscribe

speech directed at minors).

I further question whether the substantial overbreadth doctrine would apply in

this setting and join Judge Yeary in his doubting the continuing availability of Lo on

collateral review in the absence of presentation and preservation of the issue at trial

and direct appeal.

Therefore, I dissent.

BACKGROUND

On July 10, 2012, Applicant engaged in a chat with an undercover investigator

posing as a fourteen-year-old girl in a Yahoo Messenger public chat room designated

for romance and narrowed by its location in Texas. After being advised of her age,

Applicant initiated sexually explicit language and sent her nude photos of himself.

On March 6, 2013, Applicant was convicted of online solicitation of a minor under

Section 33.021(b) of the Texas Penal Code and sentenced to three years’

imprisonment. Approximately eight months after his conviction, on October 30,

2013, this Court issued its opinion in Ex parte Lo. Applicant filed an application for

a writ of habeas corpus on April 4, 2025, nearly ten years after his sentence

discharged, arguing he suffered collateral consequences as a result of his conviction.
WILLIAMS DISSENT—4

I. WILLIAMS HAS NO VIABLE FIRST AMENDMENT COMPLAINT

A. Ex parte Lo Relied on Federal First Amendment Caselaw and Erred
in its Application of It

To reach its determination in Lo, the Court relied exclusively on federal First

Amendment overbreadth caselaw. Ex parte Lo, 424 S.W.3d at 18–19. Under a

typical facial attack, an applicant must show “that no set of circumstances exists

under which [the challenged law] would be valid, . . . or that the statute lacks any

‘plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 472 (2010)

(emphasis added). However, to succeed on a facial overbreadth challenge, the

applicant need only show “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at

473 (emphasis added) (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 n. 6 (2008)). Thus, the overbreadth doctrine operates more

so as an exception to standing rules than as a substantive prohibition on state

authority to regulate conduct or speech. See Bd. of Trustees of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 484 (1989). For that reason, overbreadth attacks are subject to a

series of restrictions and limitations on their application that appear to have gone

unmentioned in our Lo opinion.
WILLIAMS DISSENT—5

First, skipping over the question of Mr. Lo’s ability to raise the overbreadth

challenge,1 the Court held that Section 32.021(b) was content-based, not entitled to

a presumption of validity and, though supported by a compelling interest in

protecting children from targeting by adults seeking sexual gratification, not

narrowly drawn to achieve that goal. Ex parte Lo, 424 S.W.3d at 19. It cited several

reasons for that determination, though none would seem sufficient to have warranted

imposing the “strong medicine” of substantial overbreadth that is to be used

“sparingly and only as a last resort” to permit those like Mr. Lo to pursue that

argument as to a penal statute that properly applied to him. N.Y. State Club Ass’n,

Inc. v. City of New York, 487 U.S. 1, 14 (1988).

While this aspect of Lo’s holding is perhaps its least problematic, narrow

tailoring does not demand perfect tailoring. Williams-Yulee v. Fla. Bar, 575 U.S.

433, 454 (2015) (citing Burson v. Freeman, 504 U.S. 191, 209 (1992)). One would

assume that, having limited the statute’s reach to (1) adults, (2) who are deliberately

targeting recipients known or believed to be children, (3) for the express purpose of

1
As the Supreme Court explained in Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.
469, 485–86 (1989), courts should resolve the question whether the statute can be applied
constitutionally to the litigant before moving on to the overbreadth question. N.Y. State Club
Ass’n, Inc. v. City of New York, 487 U.S. 1, 11 (1988); see generally Hill v. Colorado, 530 U.S.
703 (2000). Because Lo was charged with conduct far less extreme and far closer to the
imaginative musings more akin to the possible book bans cited in that opinion, he may have
prevailed on that attack—as would any third party subject to these potential extreme applications.
Separately, I question whether this standing exception is so integral to the substantive First
Amendment free speech guarantee as to apply to the states through the Fourteenth.
WILLIAMS DISSENT—6

sexual gratification, the statute would have been sufficiently narrow given the

compelling interest involved, particularly where the claims of overbreadth in its

potential application to third parties not before the court are the only grounds of

attack.

Indeed, many airplane passengers might be prone to pranks and jokes about

explosive devices in their carry-on luggage. Still, a statute prohibiting that speech

on the basis of such content cannot be seriously questioned by a speaker deliberately

invoking a panic on account of the right of other passengers to tell jokes or repeat

the story lines of great works of fiction involving the same theme. 2 That the

defendant-passenger intended to communicate a message of panic is enough to

answer both the content and the overbreadth attack. The same is true of adults

targeting children for sexualization.

Moving forward with its mixed content-overbreadth analysis, the Lo Court

reasoned that the statute was not narrowly tailored (and apparently was overly broad)

because the State’s interest was already served in other sections of the Penal Code

2
The Lo court observed that not only pornography, obscenity, and perverted self-
photography, but also works of popular fiction with mature themes might be swept within the
statute’s reach. Ex parte Lo, 424 S.W.3d 10, 19–20 (Tex. Crim. App. 2013). As detailed below,
invocation of the doctrine of substantial overbreadth requires proof that the statute is likely to
substantially chill protected speech. United States v. Williams, 553 U.S. 285, 292–93 (2008). Lo
cites no evidence of adults sexually gratifying themselves by sending copies of Good
Housekeeping to recipients they know or believe to be children. Neither did it attempt to explain
how such a transmission for that purpose would amount to protected speech any more than a
comment about an explosive would.
WILLIAMS DISSENT—7

that required additional contact or actions toward the corruption or sexual assault of

a child. Ex parte Lo, 424 S.W.3d at 19–20. At best, this observation would relate

to a possible Fifth Amendment double jeopardy concern on account of multiple

punishments for the same conduct.

Next, the Court pointed to what it strangely saw as a weakness in the statutory

scheme; its limited application to one-on-one communications, which it declared as

“lead[ing] to [an] absurd result” because no violation would occur if a person

communicated with multiple minors. Id. at 26–27. This supposed drafting weakness

would not be relevant to the First Amendment overbreadth inquiry 3 and suggests a

lack of appropriate deference to the role of the Legislature in drafting laws for,

among other reasons, avoiding or mitigating possible constitutional concerns.

Having initially imagined a reading of the statute that created the constitutional

concern, the Court then pivoted, urging that the statute did not clearly limit its reach

to one-on-one communications, thereby ignoring the Court’s obligation to embrace

a limiting construction of a law when doing so would save it from possible

3
While the notion of under-inclusiveness may weigh into the inquiry as to whether a
content-based law is in fact aimed at redressing a compelling interest, that inquiry is distinct from
the notion of overbreadth, which operates on the premise that the statute applies properly in some
settings and not in others. And, even in that setting, the state is not required to target and punish
all speech activity so long as its prohibition is targeted incrementally to conduct well within its
stated interest. See generally Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015). The answer in the
overbreadth context would be clear under the presumption of constitutionality and, to the extent
we question its scope of application, our obligation to read the statute to avoid constitutional
infirmity. See United States v. Hansen, 599 U.S. 762, 770–71, 781 (2023) (applying the rationale
that any plausible reading of statute to avoid overbreadth must be favored).
WILLIAMS DISSENT—8

constitutional invalidation. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); see

Hansen, 599 U.S. at 781. Regardless of the Court’s treatment of the statute’s reach,

this observation is ultimately irrelevant to the core question of whether the law is

within the government’s constitutional power or its right to target and eliminate the

source of the “evil” it seeks to remedy. See Barnes, 501 U.S. at 567; Frisby v.

Schultz, 487 U.S. 474, 485 (1988).

The State’s target here—adults using children for sexual purposes—would be

adequate to defend its reach, regardless of whether the perpetrator is engaged with a

child in-person or in Barnes “speech-activity” over the internet. The State is well

within its power to proscribe the sexualizing activity regardless of whether the

perpetrator is using a singular “child” or multiple “children.” Likewise, the fact that

the sexual abuse of the child or children happens over the internet is irrelevant. If

the man in a trench coat has no right to flash the whole school bus, why would Mr.

Williams have the right to bombard a whole chat room with his amateur

photography?

And, most critically to Lo’s core overbreadth holding, what other adult would

be restrained in their speech by a law prohibiting this targeting for this purpose? The

Lo opinion surmises possible applications of the statute to a variety of popular film

and literary subjects, implying it could operate as a book ban or proscribe an adult

sending an electronic copy of a then-popularized Miley Cyrus music video. Ex parte
WILLIAMS DISSENT—9

Lo, 424 S.W.3d at 17. But the textual elements foreclose those applications and

nothing in the opinion even attempts to explain how the application to anyone but

those targeting children for sexual arousal would be possible, much less likely, so as

to support its substantial overbreadth conclusion. Broadrick, 413 U.S. at 615. To

support invalidation on this basis, “overbreadth of a statute must not only be real,

but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

This critical aspect of Lo was firmly rejected in Hansen. There, the Supreme

Court confronted a federal law making a crime of the act of “encourag[ing] or

induc[ing] an alien to come to, enter, or reside in the United States.” Hansen, 599

U.S. at 767. Had the law been enacted by the Texas Legislature, our decision in Lo

would have doomed it in view of its potential application to all manner of innocent

speech. Instead, the Supreme Court rejected the notion that the words “encourage

or induce” should be read to have the ordinary meaning; rather, the phrase was to be

read as a criminal law term of art, so as to limit its reach into more potentially

problematic settings. Id. at 774.

B. Regardless of the Standard it Applied, Lo Misapplied the Substantial
Overbreadth Rules of its Day and Clearly Fails Under Current Law
The critical point here is that facial overbreadth challenges are “an exception

to the general rule that a person to whom a statute may be constitutionally applied

cannot challenge the statute on the ground that it may be unconstitutionally applied

to others.” Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). The doctrine allows
WILLIAMS DISSENT—10

a litigant “to challenge a statute not because their own rights of free expression are

violated, but because of a judicial prediction or assumption that the statute’s very

existence may cause others not before the court to refrain from constitutionally

protected speech or expression.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.

383, 392–93 (1988) (cleaned up). As noted, the doctrine should not be employed in

advance of an as-applied challenge to Section 32.021(b). E.g., Stevens, 559 U.S. at

484 (Alito, J., dissenting) (“The ‘strong medicine’ of overbreadth invalidation need

not and generally should not be administered when the statute under attack is

unconstitutional as applied to the challenger before the court.”).

But whatever Lo’s weaknesses may have been at the time of its decision, they

have only grown in the passing years. Under modern federal substantial overbreadth

jurisprudence, “[i]nvalidation for overbreadth is strong medicine that is not to be

casually employed.” Hansen, 599 U.S. at 770 (cleaned up). Hansen makes that point

most clearly—and most fatally—with respect to our concerns in Lo about the

prospect of inane prosecution. The Court in Hansen tackled the same sort of

imaginings of the statute to activities said to support the notion that its legitimate

reach (here to Mr. William’s conduct in sharing his image of his genitalia with a

person known to him as a child) to the myriad of protected activities that might be

within its scope. While it is easy to imagine all sorts of speech “encouraging” illegal

immigration activities to give rise to potential prosecution, Hansen, like Mr. Lo or
WILLIAMS DISSENT—11

Mr. Williams, “fail[ed] to identify a single prosecution for ostensibly protected

expression in the seventy years since Congress enacted clause (iv)’s immediate

predecessor. Instead, he offers a string of hypotheticals, all premised on the

expansive ordinary meanings of ‘encourage’ and ‘induce.’” Id. at 782.

Our Lo opinion erred in resorting to the same sort of hypotheticals of the

possibility of prosecutions unconnected to evidence—required by the statutory text

we invalidated—of the intent to use the child for sexual gratification. Today, as

before, there is no evidence that any Texan has been prosecuted for sharing a book

or a Miley Cyrus video or otherwise communicating with a child other than as part

of an effort to sexualize him or her. The case before us serves as exhibit A.

Meanwhile, the government’s interest in protecting minors from adult sexual

entreaties has been recognized as sufficient to warrant incidental limitations on adult

speech activities to a degree far beyond the understanding of Lo. Paxton, 606 U.S.

at 492–93. Because the statute at issue in Lo was targeted only at communications

directed at minors and for sexual purposes, that speech would be unprotected and

subject to near plenary restraint. Id. at 471–72.4 I therefore believe that Lo’s holding

should be reconsidered regardless of its fidelity to the jurisprudence of its time.

4
This is not my only concern with our disposition in Lo. We also, on denial of rehearing,
declared that the Legislature violated the separation of powers provision in Article II, § 1 of the
Texas Constitution by demanding that the State have an opportunity to be heard by counsel of its
choice (the Texas Attorney General) prior to entering final judgment declaring a statute
unconstitutional. See Ex parte Lo, 424 S.W.3d at 29. I do not believe it was necessary to make
that decision in Lo and would have simply allowed the State to file an out of time brief. In all
WILLIAMS DISSENT—12

For all these reasons, I would find Lo wrongly decided and unavailable to

Applicant in this proceeding.

II. FIRST AMENDMENT OVERBREADTH AS IT APPLIES TO THE
STATES SHOULD NOT EXTEND TO AN APPLICANT WHO HAS
NO VIABLE FIRST AMENDMENT COMPLAINT

I agree that the “First Amendment, of course, is applicable to the States

through the Fourteenth Amendment.” Bigelow v. Virginia, 421 U.S. 809, 811

(1975). Indeed, “all fundamental rights comprised within the term liberty are

protected by the federal Constitution from invasion by the states.” Whitney v.

California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring). And, the “right of

free speech, the right to teach and the right of assembly are, of course, fundamental

rights.” Id. Its fundamental nature is supported by various historic rationales and is

beyond doubt.

Still, I see none of this as supporting the modern sexual predator’s claimed

right to litigate on behalf of others, whether he seeks to gratify himself (or children)

via the internet or by a live performance. That exception to standing rules may not

be a “right” at all and may not be tethered to the First Amendment to a degree to

compel its application to the states.

events, I would not see that legislation or like legislation impinging on our authority insofar as it
requires notice to the state and some form of opportunity to be heard prior to issuance of a mandate
declaring a state law to be unconstitutional.
WILLIAMS DISSENT—13

The U.S. Supreme Court has “repeatedly recognized the governmental interest

in protecting children from harmful materials.” Reno v. Am. Civ. Liberties Union,

521 U.S. 844, 875 (1997). Texas, along with many other states in this nation, have

enacted various statutes and ordinances intended to protect the health and morals of

children and they are well within the federal constitutional limits on state power.

See Paxton, 606 U.S. at 492–93; 113 AM. JUR. 3D Proof of Facts § 111 (2010).

As our opinion in Lo noted, the U.S. Supreme Court decisions in Ashcroft v.

A.C.L.U.,5 Ashcroft v. Free Speech Coalition, 6 and Reno v. A.C.L.U. 7 appeared more

favorable to Mr. Lo’s position than holdings in other cases like Ginsberg v. New

York 8 and—I would now add—Paxton. 9 The reason for this may be that the statutes

involved in these cases were drafted by different sovereigns with different roles with

respect to criminal law and the responsibility of protecting youth from corruption at

the hands of adults. Nothing in Article I of the U.S. Constitution reaches into this

realm, at least not directly. Meanwhile, the First Amendment literally begins with

three words—“Congress shall make no law”—that presents a fairly negative pall

5
542 U.S. 656 (2004).
6
535 U.S. 234 (2002).
7
521 U.S. 844 (1997).
8
390 U.S. 629 (1968).
9
606 U.S. 461 (2025).
WILLIAMS DISSENT—14

over that body’s efforts to regulate in this arena. U.S. CONST. amend I (emphasis

added). In contrast, the First Amendment’s application to the states comes by way

of the Fourteenth Amendment’s Due Process Clause and the holding in Gitlow v.

New York, 268 US 652 (1925), and has a natural tension with the last two

amendments in the same Bill of Rights that collectively assign all other powers to

the states and the people, respectively. While I have no doubt that the right to speak

freely, to criticize the government and officials, to read and observe what one

chooses is so fundamental and “implicit in the concept of ordered liberty” as to be

fairly expected by those ratifying the Fourteenth Amendment to fall within the reach

of their understanding of “due process,” I question whether a criminal defendant’s

right to litigate on behalf of others under the overbreadth doctrine when he has no

valid First Amendment complaint of his own necessarily comes along for the ride.

Indeed, I doubt that anyone associated with the drafting or ratification of the

Fourteenth Amendment would have expected a state criminal defendant to whom a

penal statute could constitutionally apply would be empowered to mount a defense

on account of the law’s potential application to others.

I recognize that U.S. Supreme Court decisions have regularly applied

overbreadth in the context of criminal statutes, albeit rarely if ever explicitly

addressing the incorporation question I raise to the point where I feel compelled to

accept its application here. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). I also
WILLIAMS DISSENT—15

recognize that others, including Justices Jackson, Harlan, and Chief Justice

Rehnquist, have all raised similar questions in the past, and recognize that “this view

has never been accepted by any majority of [the] Court.” First Nat’l Bank of Boston

v. Bellotti, 435 U.S. 765, 780 n.16 (1978); see Beauharnais v. Illinois, 343 U.S. 250,

287–95 (1952) (Jackson, J., dissenting). Still, I believe in this setting the issue is

worthy of further consideration by the Supreme Court and have the comfort of good

company in all events.

CONCLUSION

Accordingly, I disagree with the Court’s decision to grant Applicant relief in

this case and would have denied the application for a writ of habeas corpus.

Filed: October 23, 2025

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