Williams, Eric Todd

In the Court of Criminal
Appeals of Texas
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No. WR-96,658-01
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EX PARTE ERIC TODD WILLIAMS,
Applicant

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On Application for a Writ of Habeas Corpus
Cause No. 2012CR10649-W1 in the 379th District Court
From Bexar County
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YEARY, J., filed a dissenting opinion in which SCHENCK, P.J.,
joined, and in which KEEL, J., joined as to Part IV.

Applicant in this case, Eric Todd Williams, was convicted, in
March of 2013, of online solicitation of a minor, pursuant to former
Section 33.021(b) of the Texas Penal Code. Acts 2007, 80th Leg., ch. 610,
§ 2, p. 1167−68, eff. Sept. 1, 2007. He was thereafter sentenced to
imprisonment for three years. He now seeks state post-conviction
habeas corpus relief, arguing that the Court, in Ex parte Lo, 424 S.W.3d
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10 (Tex. Crim. App. 2013), declared the statute under which he was
convicted to be unconstitutional in violation of the First Amendment to
the United States Constitution. 1 U.S. CONST. amend. I. Although his
sentence has since discharged, he contends that he is suffering collateral
consequences stemming from his conviction.
I have long believed that this Court was clearly wrong when—
nearly 12 years ago, in Lo—it declared that the former Texas online
solicitation of a minor statute was facially unconstitutional in violation
of the United States Supreme Court’s Overbreadth Doctrine. The Court
has not so far shared my view on that question. 2 But more recently, the
Supreme Court issued an opinion that has clarified and limited the
Overbreadth Doctrine, explaining that it should only apply in certain
very limited circumstances. So, before granting relief to Applicant, we
should at least pause briefly to reconsider whether this Court’s decision

1 At the time Lo was decided, and when Applicant was convicted, both

in 2013, Section 33.021(b) of the Penal Code read:

(b) A person who is 17 years of age or older commits an
offense if, with the intent to arouse or gratify the sexual desire
of any person, the person, over the Internet, by electronic mail
or text message or other electronic message service or system, or
through a commercial online service, intentionally:

(1) communicates in a sexually explicit
manner with a minor; or

(2) distributes sexually explicit material to
a minor.

Acts 2007, 80th Leg., ch. 610, § 2, p. 1167−68, eff. Sept. 1, 2007.

2 At this point in time, none of the currently serving judges on this Court

were part of the make-up of judges who participated in the decision in Lo.
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in Lo was correct under the Supreme Court’s more recent guidance.
I. THE COURT’S MAJORITY DECISION HERE
A.
Today, the Court grants Applicant relief based on Lo, which was
not decided on original submission until approximately six months after
Applicant’s 2013 conviction became final. In Lo, this Court decided that
Subsection (b) of the former online solicitation of a minor statute was
unconstitutionally overbroad. 424 S.W.3d at 24. But more recently, the
Supreme Court, in United States v. Hansen, 599 U.S. 762, 769−70
(2023), has clarified the Overbreadth Doctrine in a way that arguably
further undermines the Court’s decision in Lo. The Court should,
therefore, not grant relief in this case without first addressing the
continuing validity of the overbreadth analysis employed in Lo, in light
of Hansen. Because the Court does not, I must respectfully dissent to its
failure.
B.
And, in any event, the Court ought to deny Applicant post-
conviction relief because: (1) his conviction was already final when Lo
was decided, and (2) Applicant cannot demonstrate that his conduct
constituted protected speech, or that the statute he was prosecuted for
violating operated unconstitutionally as applied to him, in his own case.
See Ex parte Fournier, 473 S.W.3d 789, 800–805 (Tex. Crim. App. 2015)
(Yeary, J., dissenting) (arguing that the Court should not grant
retroactive post-conviction habeas corpus relief without first deciding
whether such applicants—who were convicted under a statute that this
Court had held to be unconstitutionally overbroad—should have to show
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that the statute was unconstitutional as applied to them); Ex parte
Mitcham, 542 S.W.3d 561, 562 n.1 (Tex. Crim. App. 2018) (Yeary, J.,
dissenting) (citations omitted) (answering that question “in the
affirmative”). For this reason, also, I dissent to the Court’s granting
relief in this case.
II. CLARIFICATIONS TO OVERBREADTH COMPEL
OUR RECONSIDERATION OF EX PARTE LO BEFORE GRANTING RELIEF
IN THIS CASE

The Supreme Court of the United States recently explained: “An
overbreadth challenge is unusual.” Hansen, 599 U.S. at 769. According
to that Court, not only does it permit litigants who typically lack
standing to bring a claim asserting only the rights of others, but it also
permits declaring a statute facially unconstitutional “even though it
[manifestly] has lawful applications[.]” Id. (citations omitted). Under
this “unusual” doctrine, “a law may be invalidated as overbroad if [only]
‘a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.’” United States v.
Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449, n. 6 (2008)).
Perhaps given its peculiarity, the doctrine has always been described as
“strong medicine” that is employed “only as a last resort.” Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973).
Recently, the Supreme Court reiterated that the doctrine should
not be “‘casually employed’” and clarified how to employ it appropriately.
Hansen, 599 U.S. at 770 (quoting United States v. Williams, 553 U.S.
285, 293 (2008)). In Hansen, the Supreme Court explained that, to strike
down a statute for overbreadth, “a law’s unconstitutional applications
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must be realistic, not fanciful, and their number must be substantially
disproportionate to the statute’s lawful sweep.” Id. (emphasis added)
(citing New York State Club Assn., Inc. v. City of New York, 487 U.S. 1,
14 (1988); Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 800–801 (1984)). With respect to that
disproportionate number, the Supreme Court further clarified—for the
first time—that, “[i]n the absence of a lopsided ratio, courts must handle
unconstitutional applications as they usually do—case-by-case.” Id.
(emphasis added).
Considering these further clarifications about the Overbreadth
Doctrine, I am convinced that Lo was clearly wrongly decided. There,
this Court dreamed up fanciful, non-realistic applications of then-
Section 33.021(b) of the Texas Penal Code—asserting that it covered “a
whole cornucopia of ‘titillating’ or ‘dirty talk.’” Lo, 424 S.W.3d at 20. I
suppose that the Lo Court might have argued that the balance of
potential unconstitutional applications of the law outweighed the
potential constitutional applications of the law in a “lopsided” way, had
it ever been asked to consider that question. But it would have been
wrong on that account. Moreover, the Court never even wrestled with
that question, at least not in a meaningful way, because the Supreme
Court at that time had yet to explain that such a showing of lopsidedness
should be considered before granting overbreadth relief.
III. FANCIFUL, UNREALISTIC APPLICATIONS AND FAILURE TO
PROPERLY CONSIDER WHETHER THE VALIDITY BALANCE WAS
“LOPSIDED” LED THE COURT TO ERR IN LO
As is evidenced by the language of the statute itself, and as we
later learned from the many 11.07 writ applications forwarded to this
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Court after Lo was decided, the fanciful applications proposed by the Lo
Court were clearly unrealistic. Mitcham, 542 S.W.3d at 564 (Yeary, J.,
dissenting) (explaining that all the previous real-world applications of
then-Penal Code Section 33.021(b) were constitutional). It is also not at
all clear that any “lopsided ratio” exists between the supposed potential
“realistic” unconstitutional applications of the law and the numerous
realistic and actual potential constitutional applications (including the
numerous actual as-applied-constitutional-convictions that were
secured by Texas prosecutors) in accordance with the statute’s plainly
legitimate sweep. 3
“To judge whether a statute is overbroad,” the Supreme Court has
explained, “we must first determine what it covers.” Hansen, 599 U.S.
at 770. But the Lo Court erroneously identified what then-Section
33.021(b) actually covered. To illustrate, the Court asserted that the
statute covered a variety of sexually explicit literature like “Lolita” and
Shakespeare’s “Troilus and Cressida[,]” television shows and movies
like “Rome,” “Eyes Wide Shut,” and “Basic Instinct,” and artwork like
“The Rape of the Sabine Women,” and “Venus De Milo[.]” Lo, 424 S.W.3d
at 20. The Court also suggested it might cover a wardrobe malfunction
during a sporting event or a “twerking” video during an awards show.

3 Although the Legislature has subsequently amended the online
solicitation of a minor statute, Acts 2015, 84th Leg., ch. 61, § 2, p. 1036, eff.
Sept. 1, 2015, it is important that we correct potentially errant decisions to
ensure that we do not inadvertently do violence to the law and justice
ourselves, and so that the lower courts will not be misled by our former
precedents. Moreover, because Lo was wrongly decided, that is all the more
reason (if more were necessary) not to give it retroactive application in post-
conviction habeas corpus proceedings! See Part IV, post.
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Id. And it chided that “[c]ommunications and materials that, in some
manner, ‘relate to’ sexual conduct comprise much of the art, literature,
and entertainment of the world[.]” Id. But the Court seemed to simply
wave off the State’s powerful argument that then-Section 33.021(b) only
penalized those who engaged in prohibited conduct with or to a minor
and “with the intent to arouse or gratify the sexual desire of any
person[.]” Id.
The Court instead addressed a different argument of its own
making, that “thoughts” are protected by the First Amendment. See id.
at 25 (“the First Amendment protects thoughts just as it protects
speech”); id. at 26 & n.72 (“A man’s thoughts are his own: he may sit in
his armchair and think salacious thoughts, murderous thoughts,
discriminatory thoughts, whatever thoughts he chooses, free from the
‘thought police.’”) (paraphrasing and quoting from GEORGE ORWELL,
1984 bk. 1, ch. 1). But this was a complete red herring argument by the
Court. The Court acknowledged, but failed to address, the State’s real
argument that the mens rea requirement built into the law limited its
application substantially so that it did not apply in cases where children
were exposed to sexually explicit material but without the intent to
arouse or gratify sexual desire. Id. at 25−26.
It should be further emphasized that the statute did not, as the
Court seemed to suggest, simply criminalize thoughts. It instead
prohibited actions (communicating “in a sexually explicit manner with
a minor” or distributing “sexually explicit material to a minor”) taken
together with a scienter, or mens rea, limited to the specific intent “to
arouse or gratify . . . sexual desire[.]” Acts 2007, 80th Leg., ch. 610, § 2,
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p. 1167, eff. Sept. 1, 2007. The statute clearly made no attempt to
criminalize pure thoughts.
The former statute also did not prohibit the distribution or
communication of just anything that even “relates to” sexual conduct.
See Lo, 424 S.W.3d at 17 (“The statute bars . . . any electronic
communication or distribution of material that ‘relates to’ sexual
conduct.”). It only prohibited such acts when they were targeted at
minors and were done with the required mental state. For example, any
good English teachers who might decide to assign to their students real
literature that might just happen to be partly sexually explicit would
only do so for educational purposes, not to scratch some sort of prurient
itch. As with virtually all crimes, mens rea matters. It explicitly and
powerfully restricts potential applications of laws from contexts where
no evidence of the required mental state exists.
The Court’s reading of the former online solicitation of a minor
statute in Lo also suggested it was convinced that the former statute
largely prohibited the widely-distributed and publicly-disseminated
materials it described—in books, television shows, movies, public
performances, and art. But the statutory language itself, instead
explicitly focused on cases in which individuals would “communicate[] .
. . with a minor[,]” or “distribute[] . . . material to a minor.” Acts 2007,
80th Leg., ch. 610, § 2, p. 1167−68, eff. Sept. 1, 2007 (emphasis added).
This language suggested, in contrast to the Court’s fanciful musings,
that a more reasonable reading of the statute focused on, and applied
more explicitly to, person-to-person communications with minors. It
could even be powerfully argued that that statute never had any proper
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application at all to broad public distributions and disseminations of
materials such as those described by the Lo Court. Given the explicit
limitations in the statutory language to cases involving communications
“with a minor” and distributions “to a minor[,]” it would likely instead
have been more appropriate to restrict its application to more predatory-
like, one-on-one communications between an adult—with the requisite
mental state—and a minor. 4

4 The Lo Court summarily brushed off this argument when the State

propounded it in that case. Lo, 424 S.W.3d at 26 (“The State suggests that the
statute prohibits only one-on-one communications[.]”). In response, the Court
offered the purely conclusory criticism that the statute “would apply to one who
communicates via the internet with one, ten, or a hundred minors, perhaps
sending them salacious selections from ‘Lolita’ with the intent to tickle their
fancy[,]” seeming to suggest that such conduct would have been protected by
the First Amendment. Id. at 26−27. Surely, however, it would not be protected
speech for an adult to send salacious selections from “Lolita” directly to a child
with the “intent to arouse or gratify” anyone’s “sexual desire[.]” The statute
was designed, after all, to protect children, and the Supreme Court has very
recently reminded us that states act properly within their power and authority
when they seek to prevent children from accessing sexually explicit content.
See e.g., Free Speech Coalition v. Paxton, 606 U.S. 461, 466 (2025) (“The power
to require age verification is within a State’s authority to prevent children from
accessing sexually explicit content[,]” and “H. B. 1181 [which requires age
verification for access to such materials] is a constitutionally permissible
exercise of that authority”); New York v. Ferber, 458 U.S. 747, 757 (1982) (“The
prevention of sexual exploitation and abuse of children constitutes a
government objective of surpassing importance.”).
That the Court in Lo would have thought such communications were
protected speech demonstrates the Court’s then-failure to perceive the true
meaning and scope of our First Amendment Speech guarantees—and the
appropriate limits of those guarantees. The statute’s clear language suggests
a more proper application in the context of person-to-person communications.
It should also be determined only in a future as-applied claim whether the law
could appropriately be applied where the communication had been sent
directly to any number of children more than one at the same time.
The Court suggested in Lo that it would be “anomalous to think that a
person who makes ‘titillating talk’ to one minor over the internet may be
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Moreover, as I have previously emphasized in my dissenting
opinion in Mitcham, exactly none of the many independently elected
prosecutors across Texas who actually had opportunities to apply the
law in its history ever seem to have brought a prosecution for the kind
of broad dissemination of materials suggested by the Court to have been
available for prosecution under its terms. Mitcham, 542 S.W.3d at 564
(Yeary, J., dissenting). This point is proven, re-proven, and driven home
every time another applicant comes to this Court seeking relief from a
conviction based on the former statute. No one else, other than this
Court, seems to have ever read the law the way the Court did in Lo to

subject to felony prosecutions, but that same person who makes ‘titillating talk’
to two or more minors in a chat room or through a mass email is not subject to
criminal prosecution.” Lo, 624 S.W.3d at 27. But that musing by the Court was
no more than the invocation of a pure policy consideration, and it had no proper
place in its opinion. Simply put, it was not a valid legal argument supporting
a determination of unconstitutionality.
Contrary to the Lo Court’s suggestion, there are extremely rational
reasons why the Legislature might have wanted to impose penalties on
individuals who would send salacious sexual materials directly “to” children
with the intent to arouse or gratify sexual desire, even where it might not have
wanted to criminalize public and universal disseminations of the same kinds
of materials. Person-to-person communications with children, for example, are
more potentially predatory than public, open, and universal publications of
materials. Person-to-person communications may invite personal and private
responses from children that might not be open to public view. Such
communications might also set up further non-public communications between
the sponsor of the salacious sexual materials and the children. Parents and
guardians might not have access to those communications to check their
content. Also, parents and guardians would have a better ability to control
what their children see when materials are publicly and universally
disseminated, and the public dissemination of materials might also provide
them an opportunity to influence their children’s proper understanding of such
materials as well—but not so when the communications go directly to the
children themselves, at least potentially outside the view or knowledge of
parents or guardians.
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cover widely disseminated television shows, movies, books, and even art.
Accordingly, the Lo Court’s assessment of the breadth of the
former statute was both unrealistic and exceedingly fanciful. Only by
disingenuousness may one draw the conclusion that the potential
unconstitutional applications of the law so far exceed its potential
constitutional applications that it would be proper to describe the
balance as “lopsided.” See Hansen, 599 U.S. at 770. Considering the
recent clarifications to the Overbreadth Doctrine made by the Supreme
Court, therefore, our reconsideration of Lo is compellingly called for in
this case. We should not simply grant relief to Applicant without first at
least considering whether Lo was correctly decided.
IV. OVERBREADTH AND RETROACTIVITY
In any event, even when a statute is truly overbroad in the sense
described by the Supreme Court’s Overbreadth Doctrine, and therefore
properly declared facially unconstitutional, our decision declaring that
to be the case should not automatically carry retroactive application in
post-conviction 11.07 collateral attacks. Ex parte Gonzalez, 664 S.W.3d
838, 843 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (“[W]e should
require post-conviction applicants to show that their convictions did not
fall within the plainly legitimate sweep of the overbroad statute.”).
Typically, to establish that a statute is facially unconstitutional,
a litigant “must establish that no set of circumstances exists under
which the [challenged statute] would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987). In that unique circumstance, “Texas has long
recognized ‘the general rule’ that an unconstitutional statute ‘is void
from its inception[.]’” Fournier, 473 S.W.3d at 800 (Yeary, J., dissenting)
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(quoting Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)). It
reasonably follows in such cases that any time a penal statute is
declared facially unconstitutional—in the sense that it has been found
necessarily to be unconstitutional in all its applications—the appellate
decision declaring that fact ought to have retroactive effect. Id. at 801
(“[I]t was not the judicial decision that nullified the statute; the statute
was stillborn.”). After all, if a law is unconstitutional in all its
applications, then it certainly was unconstitutional as applied “to any
and every individual ever convicted under that provision, in the future
and in the past.” Id. (emphasis added).
But an overbreadth challenge is different from the typical facial
challenge. Unlike an ordinary facial challenge—requiring that a law be
shown to be unconstitutional in all its applications—the Overbreadth
Doctrine provides that “a law may be invalidated as overbroad if [only]
‘a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.’” Stevens, 559 U.S. at
473 (quoting Washington State Grange, 552 U.S. at 449, n. 6). By
implication, then, when a statute runs afoul of the Overbreadth
Doctrine, there might indeed be any number of instances in which the
law’s applications have been plainly constitutional.
A declaration of unconstitutionality in all possible applications is
just an observation by a court that a statute cannot be applied consistent
with the Constitution. In contrast, a declaration of unconstitutionality
for overbreadth is an exercise of brute judicial power enjoining the
future enforcement of a statute with some presumptive constitutional
breadth. These are very different things.
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All of this makes clear to me that the reasoning that undergirds
the rationale for declaring laws to be void-from-inception, when they are
found to be unconstitutional in all applications (i.e., in the ordinary
sense), does not follow in cases where laws are found unconstitutional
only for their arguable overbreadth. This is because the Overbreadth
Doctrine itself admits that a statute declared unconstitutional on that
basis alone may still have been applied, in at least some instances in the
past, in a perfectly constitutional manner. And “a court cannot,
consistent with separation of powers, enjoin enforcement of a statute
where enforcement would be lawful.” Borden v. United States, 593 U. S.
420, 448 (2021) (Thomas, J., concurring); see also Americans for
Prosperity Found. v. Bonta, 594 U.S. 595, 620 (2021) (Thomas, J.,
concurring) (citations omitted) (“[T]he Court has no power to enjoin
the lawful application of a statute just because that statute might be
unlawful as-applied in other circumstances.”).
Moreover, one of the primary purposes of allowing litigants to
claim a statute is overbroad without having to show that their own First
Amendment rights had been violated is to prevent the public from
having their speech or expression be chilled by the very existence of an
overbroad statute. See Broadrick, 413 U.S. at 612 (“Litigants, therefore,
are permitted 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.”). But in the case of individuals who come along after a
statute has already been declared unconstitutionally overbroad, such as
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claims like Applicant’s that are brought only in post-conviction habeas
corpus proceedings, there is no longer the same concern that the
allegedly overbroad law might chill the speech or expression of others
going forward. There is no longer any need to allow people, who have
been previously finally convicted of an offense under the statute, to
challenge the law without having to first show that their own rights
have been violated.
The benefits of a conclusion that a criminal statute is overbroad
should not automatically be applied retroactively to every applicant
convicted under that statute who only later seeks relief in post-
conviction proceedings. Instead, Texas state post-conviction habeas
applicants should be required to show that the law they were convicted
for violating operated unconstitutionally as applied to them, in their
own cases, before relief should be granted. See Fournier, 473 S.W.3d at
803 (Yeary, J., dissenting) (“The windfall that inevitably flows from
judicially declaring an overbroad penal provision to be facially
unconstitutional need not extend so far as to apply retroactively to grant
habeas corpus relief to applicants who have suffered no First
Amendment infraction themselves.”). Failing to require such a showing
violates the constitutionally required separation of powers, see TEX.
CONST. art. II, and it also affords an unearned and undeserved windfall
to applicants who only subsequently seek relief by resort to state post-
conviction habeas corpus proceedings.
V. APPLICANT’S CASE
Applicant in this case entered a negotiated plea of “no-contest” for
a sentence of three years. Consequently, we cannot now look to the
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record of a trial to determine what evidence would have been presented
in satisfaction of the allegations against him. But Applicant’s
indictment—to which he pled no contest—alleged in pertinent part the
following:
on or about the 10th day of July 2012, [Applicant] . . ., with
the intent to arouse or gratify the sexual desire of the
defendant or of any person, did intentionally distribute . . .
sexually explicit material, to-wit a picture of a lewd
exhibition of the genitals, to a minor[.]
As I have said about similar cases, I fail to see how this kind of
conduct—sending “a picture of a lewd exhibition of the genitals, to a
minor”—even remotely constitutes protected speech. 5 Ex parte Chavez,
542 S.W.3d 583, 584 (Tex. Crim. App. 2018) (Yeary, J., dissenting). So,
“retroactively declaring [Applicant’s] conviction void ab initio would
seem arguably to be neither necessary nor just.” Fournier, 473 S.W.3d
at 803 (Yeary, J., dissenting). Instead, it plainly constitutes an
unnecessary injustice, both to the victim in this case and to the people
of our State and our Legislature—which passed, at least in-part, a valid
and constitutional law. It is also an abuse of the judicial power.
VI. CONCLUSION
Before granting relief in this case, the Court should at the very
least consider again whether, especially in light of recent Supreme Court
precedents, its decision in Lo may have been incorrect. Applicant has
also failed to demonstrate that the statute he was convicted of violating

5 Mitcham, 542 S.W.3d at 564 nn.5–7 (Yeary, J., dissenting) (describing

the clearly unprotected-by-the-First Amendment conduct that was charged in
numerous other cases in which this Court previously granted state post-
conviction habeas corpus relief).
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operated unconstitutionally as applied to him. For the reasons discussed
above, then, as well as for reasons more fully articulated in my side
opinions in cases like Fournier, Chavez, and Gonzalez, relief should be
denied. 6 I respectfully dissent.

FILED: October 23, 2025
PUBLISH

6 Fournier, 473 S.W.3d at 800–805 (Yeary, J., dissenting); Chavez, 542

S.W.3d at 584–85 (Yeary, J., dissenting); Gonzalez, 664 S.W.3d at 838–843
(Yeary, J., dissenting).