There is no doubt East Texas teenager Colton Lester got a raw deal when he served two years in prison for breaking a state law that had been declared unconstitutional almost a year before his 2014 court date.
After the mistake was discovered and he was freed, Lester says he got a second raw deal when he tried to collect from a state fund that provides $80,000 for every year a wrongfully convicted inmate spends behind bars.
State officials denied his request, saying the fund is reserved for people who were found to be innocent of their crimes.
Lester, however, had pleaded guilty to attempted online solicitation of a minor, unaware — as were his lawyer and prosecutors — that the law had been invalidated by the state’s highest criminal court in 2013. The situation is unfortunate, officials acknowledge, but the guilty plea made Lester ineligible for state compensation.
Lester disagrees, arguing that once a statute is declared unconstitutional, it’s as if that law never existed. No law means no crime was committed, and that means an innocent man served time in prison, he says.
Now represented by a new lawyer, Lester will get to make that argument to the Texas Supreme Court, which recently agreed to look into his case and another that arose after the online solicitation law was struck down.
The second case features a Denton County man who argues that his arrest under the law should no longer appear on his record because his conviction for online solicitation was tossed out after the law was voided. The Texas Department of Public Safety is fighting that effort.
Both cases will be argued before the Supreme Court on Jan. 29, with decisions expected by the end of June.
The legal controversies arose after the Texas Court of Criminal Appeals tossed out the online solicitation law, which had made it a crime for adults to send sexually explicit electronic messages to minors with the intent “to arouse or gratify sexual desire.”
The court determined that the 2005 law violated the U.S. Constitution because, instead of being narrowly written to protect children from sexual abuse, it prohibited a wide array of protected speech.
The Oct. 30, 2013, ruling prompted a spate of overturned felony convictions and required prosecutors across Texas to drop pending cases or pursue other charges, such as attempted sexual assault, in court.
And although the online solicitation law is back in service after lawmakers tightened its language, the new law applied only to offenses committed after Sept. 1, 2015, and has no bearing on either case before the Supreme Court.
2 years behind bars
Lester was 17, making him an adult in criminal matters, when he was charged under the online solicitation law for sending a text “containing an explicit sexual proposition” to a girl he knew to be 14 or younger, according to court records.
Lester was a junior and the girl was a freshman at Livingston High School, about 75 miles north of Houston, when the text was sent on April 27, 2014 — six months after the online solicitation law had been struck down.
Lester pleaded guilty to the online solicitation charge and was given five years of deferred adjudication, a form of probation, on Aug. 26, 2014 — 10 months after the law was invalidated.
It got worse. On Sept. 14, 2016 — almost three years after the law was voided — a probation violation landed Lester back in court, where he was sentenced to three years in prison.
He served a little more than two years behind bars before the mistake was discovered, prompting the Court of Criminal Appeals to toss out his conviction and order his indictment to be dismissed.
The latest round of litigation began after Comptroller Glenn Hegar, whose office distributes payments under the state fund for wrongful convictions, twice denied Lester’s requests for a little more than $160,000 for his time in prison.
“In a monumental miscarriage of justice and violation of Mr. Lester’s constitutional rights, the State of Texas charged, convicted, and ultimately imprisoned a teenager for over two years under a (voided) statute," Lester’s lawyer, Wendell Radford Jr., told the Supreme Court in a legal brief.
“Colton Lester is entitled to compensation for wrongful imprisonment,” Radford argued.
Lawyers for Texas argue that Hegar had no choice but to deny Lester’s request for compensation.
The Tim Cole Act, the state law that created the compensation fund, was named for a Texas Tech University student who was convicted of rape in 1986 and cleared by DNA tests in 2009 — 10 years after he died in prison.
Represented by lawyers from the attorney general’s office, Hegar argues that Lester is relying on a mistaken interpretation of the Tim Cole Act’s language that allows payments based on a court finding “that the person is actually innocent of the crime.”
“Actual innocence” is a legal term that requires “affirmative evidence” that a person did not commit a crime but was imprisoned nonetheless, and the wording was chosen by lawmakers who wanted to compensate a specific type of improperly convicted inmate, Hegar argued.
Lester, Hegar added, was declared “legally innocent” solely because the law under which he was convicted had been declared unconstitutional, not because he did not try to solicit a minor.
“To date, the Legislature has not deemed it expedient to compensate persons like Lester,” Hegar told the Supreme Court in a legal brief. “This Court should not second-guess that policy choice.”
But Radford, Lester’s lawyer, said Hegar is splitting hairs. There is no difference between actual and legal innocence when there was no crime in the first place, he told the court.
Instead, Radford invited the court to apply a U.S. Supreme Court decision that said actual innocence is proved by showing that no reasonable juror would have found the defendant guilty had they known all of the facts.
“No reasonable juror would have found Colton Lester guilty because on the date of the ’offense,’ the conduct he was charged with ... was not a crime,” Radford said in a brief.
In the meantime, Lester has sued the lawyer who represented him when he pleaded guilty, giving him a second avenue for possible compensation.
To expunge or not
In the second case before the Supreme Court, a man identified as EH is seeking a court order to expunge his record, removing a 2007 arrest for online solicitation of a minor.
Courts generally allow people seeking expunction to use initials because requiring full names would defeat the purpose of clearing somebody’s record.
After the online solicitation law was struck down, EH was able to get his indictment and conviction overturned in 2016.
DPS, however, declined to remove the arrest from EH’s record, arguing that state law clearly says arrest records cannot be expunged for those who, like EH, pleaded guilty and were placed on probation.
EH’s lawyer, Mark Bennett of Houston, said state law bars expunction for those given “court-ordered” probation — a key distinction. The court order placing EH under five years of probation was declared invalid when EH’s conviction was overturned, Bennett told the Supreme Court.
“It does not matter when the judgment is adjudicated invalid. A void judgment is a nullity from the beginning,” Bennett wrote in a brief. “An order that has been declared legally void, in other words, never was an order at all.”
Thus far, a trial judge and the Fort Worth-based 2nd Court of Appeals have backed EH, ordering his record cleared.
DPS appealed, and the Supreme Court agreed Nov. 15 to accept the case.
At least five similar cases are currently on appeal.