McClellan, Kenneth Jaye

D^.*^* WR-83,943-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/15/2017 4:44 PM
Accepted 12/18/2017 3:15 PM
NO. WR-83,943-01 DEANA WILLIAM^

IN THE TEXAS filed
COURT OF CRIMINAL APPEALS C0URT %g^AL APPEALS
AUSTIN, TEXAS deana Williamson, clerk

EX PARTE

KENNETH JAYE MCCLELLAN

APPLICANT

MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL
APPEALS:

COMES NOW KEENETH JAYE MCCLELLAN and moves this

Honorable Court to reconsider its decision of November 15, 2017 and remand the

case to the trial court for an evidentiary hearing and would respectfully show unto

the Court the following:

1. Applicant requests this Honorable Court remand the cause for an

evidentiary hearing because a hearing was requested by Relator in his original

Application for Writ of Habeas Corpus. August 25, 2015. (Ex. 1 attached). Three

days after the State filed its proposed findings and order and before Applicant

could file his proposed findings and order, the trial court recommended relief be

(.T5^'
denied. (Ex. 2-3 attached). Applicant was effectively denied an evidentiary

hearing that could have provided this Honorable Court with additional facts that

could warrant relief for Applicant based on the Court's opinion in this case. For

example, Applicant could show that he would not have entered a plea but for the

anti-defensive provisions of the statute.

2. Applicant would also respectfully request this Honorable Court revisit the

opinion in this case based on the fact that the burden appears to have been placed

upon him to show that the unconstitutional provisions had some effect on his

decision to enter a plea. Applicant would submit to the court that the party

benefiting from the error (the State) has the burden to prove beyond a reasonable

doubt that the error did not affect the outcome of the case. See Phillips v. State, 193

S.W.3d 904 (2006).

Applicant requests this Honorable Court grant a rehearing and after a

rehearing the Court should reverse the conviction and sentence, or in the

alternative Applicant requests this Honorable Court to remand this case to the trial

court to conduct an evidentiary hearing.

CONCLUSION AND PRAYER

Applicant moves this case be remanded for hearing so that the record may be
more fully developed at the trial court and for such other and further relief to which

the he is entitled.

Respectfully submitted,

Isi Blake R. Burns
BLAKE R. BURNS
bburnslaw@gmail.com
115 North Henderson Street
Fort Worth, Texas 76102-1940
(817) 870-1544 fax (817) 870-1589
State Bar No. 24066989

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Motion has been hand delivered to

the Honorable Sharen Wilson Assistant Criminal District Attorney of Tarrant

County, Texas on December 15, 2017.

Is/ Blake R. Burns
BLAKE R. BURNS
bburnslaw@gmail.com
CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Applicant KENNETH JAYE

MCCLELLAN prays this Honorable Court to set this matter for heariiig and after a

full review to remand the cause for the trial court so that this case may be disposed

of in accordance with this Court's holdings in Ex Parte Lo, for a termination of his

requirement to register as a sex offender, and for other such relief to which the

Applicant may show himselfjustly entitled.

Respectfully submitted,

BLAKE R. BURNS
115 North Henderson Street
Fort Worth, Texas 76102-1940
Bar No. 24066989
(817) 870-1544 FAX (817) 870-1589

NICK DAVIS
115 North Henderson Street
Fort Worth, Texas 76102-1940
Bar No! 24065123
(817) 870-1544 FAX (817) 870-1589

EXHIBIT

\
FILiD
TH^W8W£r
NO. C-371-010555-1060758-A SEP 18 2015
TIME ^ffifc^r *
EX PARTE § IN THE 371* JUDICftb- &&L*L DEPL^"
.§• .
§ DISTRICT COURT OF
-.• § .
KENNETH J. MCCLELLAN § TARRANT COUNTY, TX

STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT
AND CONCLUSIONS OF LAW

The State proposes the following Memorandum, Findings of Fact and

Conclusions of Law regarding the issues raised in the present Application for Writof

Habeas Corpus.

MEMORANDUM

The applicant, KENNETH J, MCCLELLAN ("Applicant"), alleges that he is

being unlawfully confined because the statute under which he was convicted has

been declared unconstitutional. See Application, p. 6.

In light of Applicant's contentions and the evidence presented in the Writ

Transcript, the Court should consider the following proposed findings of fact and

conclusions of law:

FINDINGS OF FACT

General Facts

L Applicant pled guilty, pursuant to a plea agreement, to the second degree
felony offense of solicitation of a minor under 14 - online on November 28\
2007. See Judgment, No. 1060758D.
2. In accordance with the plea agreement, Applicant was sentenced to three years
confinement in the Texas Department of Criminal Justice - Institutional
Division. See Judgment.

3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
106075BD.

Statute

4. The indictment alleged that Applicant solicited a minor online '% meet with
[Applicant] with the intent that the minor would engage in sexual contact,
sexual intercourse, or deviate sexual intefeourse, with said defendant." See
Indictment, No. 1060758D.

5. Applicant was indicted and convicted for the offense of online solicitation of a
minor under §33.021(c). See Indictment; Tex. Penal Code §33.021(c).

CONCLUSIONS OF LAW

General Law

1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977). An applicant
"must prove by a preponderance of the evidence that the error contributedto
his conviction or punishment." Ex parte Williams, 65 S.W.3d. 656, 658
(Tex. Crim. App. 2001).

2. Relief may be denied if the applicant states only conclusions, and not
specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App.
2000). In addition, an applicant's sworn allegations alone are not sufficient
to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Grim.
App. 1988).

Statute

3. Subsection (b) of section 33.021 of the Texas Penal Code was facially
unconstitutional. See ExparteLo, 424 S.W.3d 10,14 (Tex. Crim. App. 2013);
see also Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App,2014); Freeman
v. State,425S.W.3d289(Tex. Crim. App.2014).

4. Because Applicant was convicted under subsection (c) of section 33.021 ofthe
Texas Penal Code, the holding that subsection (b) of section 33.021 of the
Texas Penal Code is unconstitutional does not apply to Applicant.

5. ThisCourtrecommends that Applicant's sole ground for'reliefbe DENIED.

WHEREFORE, the State prays that this Court adopt these Proposed Findings

of Fact and Conclusions of Law and recommend that Applicant's application be

DENIED.

Respectfully submitted,

SHAREN WILSON
Criminal District Attorney
Tarrant County

Andrea Jacobs, Assistant
Criminal District Attorney
State Bar No. 24037596
401 WestBelknap
Fort Worth, TX 76196-0201
Phone: 817/884-1687
Facsimile: 817/884-1672

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant^ Mr. Kenneth J.
McClellan, by and through his attorney of record, Hon. Blake Burns, at 115 N.
Henderson Street, Fort Worth, Texas 76102 on the lo day ofSeptember, 2015.

*T
Andrea Jacobs
CERTIFICATE OF COMPLIANCE

The total number of words in this State's Proposed Findings of Fact and

Conclusions of Law is 4422 words as determined by the word count feature of

Microsoft Office Word 2010.

Andrea Jacobs
NO. C-371.O10555-I06O758-A

EX PARTE § INTHE 371st JUDICIAL
§ DISTRICT COURT OF

KENNETH J. MCCLELLAN § TARRANT COUNTY, TX

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief KENNETH J, MCCLELLAN

("Applicant") requests be DENIED. The Courtfurther orders and directs:
1. The Clerk of this Court to file these findings and transmit them along
withthe Writ Transcriptto the Clerkof the Courtof Criminal Appeals as required by
law.

2. The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Kenneth J. McClellan, by and through his attorney of record, Hon,
Blake Bums, at 115 N. Henderson Street, Fort Worth, Texas 76102 (or to Applicant's
most recent address), and to the post-conviction section of me Criminal District
Attorney's Office.

SIGNED AND ENTERED this day of ,2QI5.

JUDGE PRESIDING
NO. C-371-010555-1060758-A SEP 21 m

EX PARTE § IN THE 371**110!* DEPUTY
§
§ DISTRICT COURT OF
§
KENNETH J. MCCLELLAN § TARRANT COUNTY, TX

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief KENNETH J. MCCLELLAN
("Applicant") requests be DENIED. TheCourt further orders and directs:
1. The Clerk of this Court to file these fihdingsjand transmit them along
with the Writ Transcript to theClerk of the Court of Criminal Appeals as required by
law.

2. The Clerk of this Court to furnish a copy of the Court's fihdmgs to
Applicant, Mr. Kenneth J. McClellan, by and through his attorney of record, Hon,
BlakeBurns, at 115 N. Henderson Street; Fort Worth, Texas 76*02 (or to Applicant's
most recent address), and to the post-cohviction section of'thisCriminal District
Attorney's Office.

SIGNED AND ENTERED this ffl day of