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

PARKER, J., filed a concurring and dissenting opinion in which FINLEY, J.,
joined.

CONCURRING AND DISSENTING OPINION

Ex parte Lo held that the statute Applicant was convicted under was facially unconstitutional

because it was overbroad in violation of the First Amendment.1 And this Court has long held that

a statute that has been held facially unconstitutional is “void from its inception . . . as if it had never

been.”2 It follows from these two holdings that any person convicted under the statute at issue here

1
424 S.W.3d 10 (Tex. Crim. App. 2013).
2
Ex parte Beck, 541 S.W.3d 846, 855 & n. 10 (Tex. Crim. App. 2017) (citing cases); Smith
v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015); Ex parte Bockhorn, 62 Tex. Crim. 651, 652
(1911).
WILLIAMS CONCURRENCE/ DISSENT — 2

is entitled to relief on postconviction habeas. Not surprisingly, this Court has held exactly that.3

No one disputes that the statute Applicant was convicted under was held facially

unconstitutional in Lo. We cannot and should not deny relief without overruling or modifying one

of the two propositions that, when combined, requires that relief be granted.

My current thinking leads me to want to overrule Lo, but a majority of the Court declines to

file and set this case to reconsider that decision. I dissent from that declination, because I would file

and set the case to reconsider Lo. But longstanding precedent holds that a statute that has been held

facially unconstitutional is void, and I agree with that precedent. Consequently, in my view, so long

as Lo remains binding precedent, its effect of rendering the statute void remains, and Applicant is

entitled to relief. Moreover, if I voted to deny relief and that vote resulted in this Court denying

relief with a plurality decision, such action would create a walking contradiction—denying relief

when majorities of the Court (albeit shifting ones) continue to adhere to legal propositions that, when

combined, require that relief be granted. Aside from being illogical, denying relief in this manner,

when such relief has been routinely granted in the past, would undermine confidence in this Court

and the rule of law. Consequently, though I dissent from the Court’s refusal to file and set, having

lost that battle, I concur in its decision to grant relief.

I.

Although I disagree with Judge Yeary on the effect of an overbreadth holding,4 I agree with

him that Lo was wrongly decided. To the arguments he makes, I would add that our decision in State

3
Beck, supra at 855; Ex parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015); Ex
parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014); see also id. at 918-22 (Cochran, J.,
concurring).
4
See infra at part II.
WILLIAMS CONCURRENCE/ DISSENT — 3

v. Johnson5 further undermines Lo’s holding. Decided almost two years after Lo, Johnson

presciently anticipated United States v. Hansen6 by explicitly saying that “the danger that the statute

will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’”7 And

while Johnson did not explicitly say that a “lopsided ratio” is required to find a statute

unconstitutional for overbreadth, the decision actually found such a lopsided ratio with respect to the

flag-desecration statute it invalidated.8 Johnson explained how, in the abstract, most conduct that

fell within the Texas flag-desecration statute that would be prosecuted would constitute protected

expression.9 And surveying practically every published decision in the nation on flag-desecration

offenses, Johnson showed that the overwhelming majority of them involved protected expression.10

By contrast, Lo did not conduct this sort of analysis. As Judge Yeary points out, Lo focused

on fanciful hypotheticals and did not offer any examples of actual prosecutions of protected conduct

under the Texas statute or even any similar statute.11 In fact, compared to this Court’s other

5
475 S.W.3d 860 (Tex. Crim. App. 2015).
6
599 U.S. 762 (2023).
7
Johnson, 475 S.W.3d at 865 & nn.18, 19 (quoting, among other opinions, Justice Alito’s
dissent in United States v. Stevens, 559 U.S. 460, 485 (2010) (Alito, J., dissenting)). Compare
Hansen, supra at 770 (“To justify facial invalidation, a law’s unconstitutional applications must be
realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful
sweep.”).
8
See Johnson, supra at 875-76, 878-79. Compare Hansen, supra (“In the absence of a
lopsided ratio, courts must handle unconstitutional applications as they usually do—case-by-case.”).
9
Johnson, supra at 875-76.
10
Id. at 878-79 & nn.108-10.
11
See Lo, 424 S.W.3d at passim. In Ex parte Thompson, also decided after Lo, the Court
questioned the need to conduct an overbreadth analysis but did so in an abundance of caution. 442
S.W.3d 325, 349 (Tex. Crim. App. 2014). The Court did not need to conduct an overbreadth
WILLIAMS CONCURRENCE/ DISSENT — 4

cases—Johnson, Thompson, and Perry—Lo’s failure to offer even a single example of an actual

problematic prosecution makes it an outlier.12

Lo perhaps thought it obviated any need to point to actual prosecutions when it concluded

that “everything that Section 33.021(b) prohibits and punishes is speech and is either already

prohibited by other statutes . . . or is constitutionally protected.”13 Even assuming we can consider

the existence of other statutes in an overbreadth analysis,14 Lo’s conclusion seems to be obviously

wrong, especially in light of current Supreme Court precedent regarding the First Amendment and

the protection of minors.15 And the various hypotheticals Lo gave did not account for the statute’s

analysis because the statute was in every case an impermissible content-based restriction. See id. at
349 & n. 143 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n. 3 (1992)). Even so, in its
overbreadth analysis, the Court at least looked to the “alarming breadth” of the statute, and it pointed
to the facts of the case before it and to four prior appellate decisions to show the “real” improper
reach of the statute. Id. at 350-52.
12
See supra at nn.10 (citing Johnson), 11 (discussing Thompson); infra at n.14 (discussing
Perry).
13
Lo, 424 S.W.3d at 20 (emphasis in Lo, ellipsis inserted).
14
In Ex parte Perry, this Court responded to the State pushing back against this type of
analysis from Lo by raising a concern that, if all the so-called legitimate applications of the
challenged statute are covered by other statutes, the challenged statute arguably does “no work.” 483
S.W.3d 884, 913 (Tex. Crim. App. 2016). Nevertheless, the Court found that, “even if the State
were correct as a general matter,” the legitimate sweep of the statute at issue in Perry was
“vanishingly small.” Id. Perry also pointed to a number of common, concrete scenarios in which
the statute would apply unconstitutionally, including to the action of the trial judge in threatening
to quash the indictment in Perry’s own case. See id. at 915-16. And Perry pointed to a prior
prosecution in State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.), and explained
the absence of more prosecutions by the fact that the Legislature had amended the statute to prevent
a repetition of what happened in Hanson, with the ruling sought by the State in Perry threatening
to “reintroduce the very chilling effect that Hanson and earlier legislative action eliminated.” Perry,
483 S.W.3d at 917.
15
See Free Speech Coalition v. Paxton, 145 S. Ct. 2291, 2203-04 (2025) (discussing the
State’s interest in protecting children from sexually explicit content).
WILLIAMS CONCURRENCE/ DISSENT — 5

culpable mental state of “intent to arouse or gratify sexual desire.”16 Such an intent will be absent

if, for example, a teacher directs a student to a work of literature or art for legitimate educational

purposes. It is at least presumptively improper for an adult to communicate with a child with the

intent to arouse or gratify sexual desire.17

II.

This Court extensively addressed the nature of the overbreadth doctrine in State v. Johnson.18

Pointedly, if a statute violates the overbreadth doctrine, it is unconstitutional on its face.19 And the

overbreadth doctrine is part of substantive First Amendment law.20 For these propositions, Johnson

accurately cited Supreme Court precedent.21 A state court is not free to ignore the overbreadth

doctrine, nor can it say that it is not always a federal constitutional doctrine.22 Even though

16
See Lo, 424 S.W.3d at 20 (referring to the written works of “Lolita,” “50 Shades of Grey,”
“Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida”; to acted out performances (on
television, in movies, and other performances) of “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic
Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s
‘twerking” during the 2013 MTV Video Music Awards; and to the art works of “The Rape of the
Sabine Women,” “Venus De Milo,” and “the Naked Maja.”).
17
The improper-photography statute in Thompson contained this culpable mental state, but
the statute was not directed at children, nor did the statute require that anyone receive the
communication. See 442 S.W.3d at 333, 350 (setting out the statute) (“This statute could easily be
applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public
street.”).
18
475 S.W.3d at 864-70.
19
Id. at 864-65 (citing United States v. Stevens, 559 U.S. 460, 473 (2010); Sabri v. United
States, 541 U.S. 600, 609-10 (2004)).
20
Id. at 866 (citing and quoting Secretary of Maryland v. Joseph H. Munson Co., 467 U.S.
947, 958-59 (1984); also citing Sabri, 541 U.S. at 610).
21
See supra at nn.19, 20.
22
Johnson, 475 S.W.3d at 866-68.
WILLIAMS CONCURRENCE/ DISSENT — 6

overbreadth is sometimes characterized as a “standing” doctrine, it is as much a part of First

Amendment law as the concept of “reasonable expectation of privacy”—another “standing” type

concept—is a part of Fourth Amendment law.23

The Presiding Judge recognizes that current Supreme Court authority is contrary to his

position that the overbreadth doctrine should not apply to the States, but he argues that the Supreme

Court should rethink its precedent. But the Supreme Court has recognized that the Fourteenth

Amendment applies the First Amendment to the States in its entirety.24 This flat out incorporation

of the First Amendment by the Fourteenth Amendment affords no room to pick and choose what

First Amendment doctrine to apply. And because overbreadth is a substantive part of the First

Amendment and the First Amendment applies to the States, then overbreadth necessarily applies to

the States. But even in United States v. Hansen, upon which the Presiding Judge and Judge Yeary

rely, the Supreme Court said that the overbreadth doctrine was designed to safeguard the

“marketplace of ideas.”25 I fail to see why a state should have more power to infringe on the

marketplace of ideas than the federal government.

Judge Yeary claims that a statute found facially unconstitutional for overbreadth does not

have the same status as a statute found facially unconstitutional for other reasons. But, as I explained

earlier, once a statute has been found facially unconstitutional—regardless of the reason—it is

23
Id. at 868.
24
Free Speech Coalition, 145 S. Ct. at 2302 (“The First Amendment, which applies to the
States through the Fourteenth Amendment, prohibits laws ‘abridging the freedom of speech.’”);
Johnson, 475 S.W.3d at 864 & n.10 (“The First Amendment right to freedom of speech applies to
the states by virtue of the Fourteenth Amendment.”) (citing West Virginia Board of Educ. v.
Barnette, 319 U.S. 624, 638-39 (1943)).
25
599 U.S. at 770.
WILLIAMS CONCURRENCE/ DISSENT — 7

treated as “void from its inception,” also known as being void ab initio.26 In a portion of his side

opinion that commanded a majority of the Supreme Court in Massachusetts v. Oakes, Justice Scalia

pushed back against the notion that an “overbroad” statute was not void ab initio, saying, “I have

heard of a voidable contract, but never of a voidable law. The notion is bizarre.”27 In concluding

that a court could not decide to decline to grant relief to a person prosecuted under an overbroad law

because the law had been amended and would no longer be applied in the future, Justice Scalia said

that “[t]he overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex

post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is

contemplating what sort of statute to enact.”28 Moreover, Justice Scalia concluded that courts cannot

use policy concerns to calibrate the effect of finding a law facially unconstitutional—the law is either

facially invalid or it is not:

In my view we have the power to adopt a rule of law which says that the defendant’s
acts were lawful because the statute that sought to prohibit them was overbroad and
therefore invalid. I do not think we have the power to pursue the policy underlying
that rule of law more directly and precisely, saying that we will hold the defendant
criminally liable or not, depending upon whether, by the time his last appeal is
exhausted, letting him off would serve to eliminate any First Amendment “chill.”
Even if one were of the view that some of the uses of the overbreadth doctrine have

26
Smith, 463 S.W.3d at 896 (holding the statute invalidated by Lo to be void ab initio); Ex
parte E.H., 602 S.W.3d 486, 494 (Tex. 2020) (“The statute under which E.H. was arrested has been
declared unconstitutional, the indictment against him has been dismissed, and the court order placing
him in community supervision has been vacated. As a matter of law, the statute was void from its
inception as if it had never been, and is to be considered no statute at all.”) (ellipsis and internal
quotation marks omitted).
27
491 U.S. 576, 588 (1989) (op. of Scalia, J., joined by Blackmun J., and joined as to part
I by Brennan, Marshall, and Stevens, JJ.).
28
Id. at 586.
WILLIAMS CONCURRENCE/ DISSENT — 8

been excessive, this would not be a legitimate manner in which to rein it in.29

As Judge Cochran eloquently said in her concurring opinion in Chance: “[A] person may

always obtain relief from an indictment or a conviction based on a penal statute that has been

previously declared unconstitutional. . . . The unconstitutional statute has disappeared in a puff of

smoke. No one can be convicted for a non-existent crime and no prior conviction based upon that

unconstitutional statute is valid.”30 Or, as Justice Scalia has said, “What a court does with regard to

an unconstitutional law is simply to ignore it. It decides the case disregarding the unconstitutional

law, because a law repugnant to the Constitution is void, and is as no law.”31

III.

When this Court declares a statute facially unconstitutional, that declaration has a specific

legal consequence. And that legal consequence is to nullify the statute as if it had never existed.

And there is no “overbreadth” exception to that principle—a statute is either facially constitutional

or it is not. Consequently, even though I may want to overrule Lo, so long as Lo is binding

precedent, the statute it invalidated is a dead letter. And if the statute is a dead letter, Applicant’s

conviction is supported by nothing. A habeas applicant can always attack his restraint by a

conviction that is supported by nothing at all.

Under our precedent as it currently exists, we must grant relief. The only way we can deny

relief is to overrule some aspect of our precedent that currently supports a grant. There is no

29
Id. at 587.
30
Chance, 439 S.W.3d at 919 (Cochran, J., concurring).
31
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760 (1995) (Scalia, J., concurring)
(capitalization added, internal quotation marks, brackets, and citation omitted).
WILLIAMS CONCURRENCE/ DISSENT — 9

majority to overrule Lo, nor is there a majority for either of the alternative legal theories for denying

relief advocated by the Presiding Judge and Judge Yeary. In fact, the opposite is true: majorities on

this Court oppose all three articulated rationales for denying relief in this case.

I would file and set this case on whether Lo should be overruled, but a majority has declined

to do so. Under precedent as it now stands, Applicant is entitled to relief. Consequently, though I

dissent from the Court’s refusal to file and set, I concur in its decision to grant relief.

Filed: October 23, 2025

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