"The Court of Appeals held that Mr. Beck had forfeited his right to challenge on habeas review the constitutionality of Texas Penal Code Section 21.12(a)(3), the statute of conviction, because he did not raise the issue at trial or on appeal. In dicta, the lower court implied that if the issue had been preserved, the court would have found the statute constitutional."
Beck pled guilty to Improper Relationship Between Educator & Student and did not appeal. In an Article 11.072 writ, he challenged the constitutionality of the statute because it incorporated another criminal statute—online solicitation of a minor—that had been found unconstitutional. The trial court denied relief.
The court of appeals considered Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009), which prohibits facial challenges to the constitutionality of a statute raised for the first time on appeal, and Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015), which provides an exception when the statute has already been found invalid. The court of appeals ruled that because neither the Court of Criminal Appeals nor the Third Court of Appeals has found the improper relationship statute unconstitutional, Beck was barred from raising the issue for the first time on habeas.
Beck argues that Karenev does not control because the statute here involves the regulation of speech and is thus presumed unconstitutional. He also argues that in striking down part of the online solicitation statute, the Court of Criminal Appeals necessarily found the improper relationship statute, which incorporates that offense, unconstitutional. He also urges the Court to decide the constitutional question, arguing that the court of appeals indicated it might find the statute constitutional, contrary to Collins v. State, 479 S.W.3d 533 (Tex. App.—Eastland 2015, no pet.).