Karenev Starts to Crumble


Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals’ decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev—a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: “the rationale for the Karenev rule—the presumption that a statute is constitutional—does not apply to this case.” Because Section 33.021(b) had been held unconstitutional before Mr. Schuster’s appeal, Mr. Schuster could raise the unconstitutionality on appeal.

The Court of Criminal Appeals invented its fundamental holding in Karenev—that the right to challenge the constitutionality of a statute could be forfeited—from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenev‘s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception—the best they could do with stare decisis.

But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content—statutes like Texas’s improper-photography statute, its online-impersonation statute, and the balance of Texas’s online-solicitation statute.


3 responses to “Karenev Starts to Crumble”

  1. I don’t know if the Fifth Circuit counts as a “court outside Texas” given the balance of its judges’ residences, but waiver-by-gulity-plea is regularly invoked in federal cases against similar challenges. Is this Texas decision any more pernicious or just a different way of saying the same thing?

  2. I spoke with too much confidence, as I so often do. In the words of the Tenth Circuit, “[T]he Fifth Circuit’s position is impossible to pin down. Compare United States v. Burian, 19 F.3d 188, 190 n. 2 (5th Cir.1994) (“Ordinarily, a guilty plea waives all objections, even constitutional ones, unless expressly reserved.”) with United States v. Knowles, 29 F.3d 947, 952 (5th Cir.1994) (“[A] guilty plea does not waive the right of the defendant to challenge the constitutionality of the statute under which he is convicted.”) and United States v. Sealed Appellant, 526 F.3d 241, 243 (5th Cir.2008) (holding that “[t]he doctrine of waiver-by-guilty plea” applied to a defendant’s argument that “Congress acted ultra vires in enacting” the statute under which he was prosecuted).” – United States v. DeVaughn [citation omitted] at FN 5 (10th Cir. Aug. 31, 2012).

    So maybe you’re right. At least that’s what I’m going to argue. 🙂 I think you have to deal with the Sealed Appellant language regarding “jurisdictional.” But I’ll give it a whirl anyway.

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