Texas Court of Criminal Appeals : Into The Void

 

The Structural Collapse of Credibility: Why the Texas Court of Criminal Appeals Must Intervene in the Interest of Justice

I. Introduction

The Texas Court of Criminal Appeals (“CCA”) now faces a matter that cuts to the foundation of judicial legitimacy. Application for Writ of Mandamus, No. WR-90,105-05, presents not merely a procedural irregularity but a constitutional breakdown.

The record, if accepted as alleged, reveals two independent and converging defects:

• Structural Voidness: The judgment arose from an adjudication presided over by a constitutionally disqualified judge.
  
  
• Substantive Voidness: The prosecution was based on conduct (online comments) that was not criminalized under the governing statute at the time it occurred.
  
  

Each defect independently destroys jurisdiction. Together, they create a “Double Nullity” that eliminates any legal foundation for the judgment and presents the CCA with an inescapable duty to act “in the interest of justice.”

II. Structural Voidness: Adjudication by an Interested Judge

It is axiomatic that “no man can be a judge in his own cause.” The U.S. Supreme Court has enforced this principle for nearly a century, holding that adjudication by an interested or biased judge is a structural defect that violates due process and renders resulting judgments void.

See Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955).

Texas law follows suit: a judgment rendered by a constitutionally disqualified judge is void ab initio because the court lacks jurisdiction.

See Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987); Ex parte Jimenez, 364 S.W.2d 868 (Tex. Crim. App. 1963).

Here, the matter was assigned to a judge who was also identified as the alleged victim. Such participation is not a minor appearance issue; it is a categorical constitutional disqualification. Every order entered thereafter was jurisdictionally null.

When a motion to disqualify was filed, the presiding judge allegedly refused to refer it to the Chief Justice as required by Tex. R. Civ. P. 18a(f)—a ministerial duty, not a discretionary act. This refusal to act created a “judicial firewall” insulating a void proceeding from mandatory external review and extended the initial defect into every subsequent layer of litigation.

III. Substantive Voidness: Absence of Subject-Matter Jurisdiction

A. The Statutory Gap and Non-Criminal Conduct

The stalking charge arose under Tex. Penal Code § 42.072 as it existed in 2016.

• At that time, the statute prohibited a “course of conduct directed at another person” involving certain acts (such as following or harassing), but it did not yet include electronic or online communication within its operative elements.
  
  
• The Legislature did not amend § 42.072 to expressly encompass digital or online conduct until 2021 (Acts 2021, 87th Leg., R.S., ch. 803 (S.B. 530)).
  
  

Therefore, online comments made in 2016 could not, as a matter of law, constitute the offense charged.

Under Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005), when the charging instrument fails to allege conduct that is an offense at the time, the trial court lacks subject-matter jurisdiction and any resulting judgment is void. A jurisdictional void cannot be waived, forfeited, or cured by later amendment.

B. Ex Post Facto and Due Process Implications

Applying the later-amended statute retroactively to the Relator’s 2016 actions would offend both U.S. Const. art. I, § 10, cl. 1 and Tex. Const. art. I, § 16, which prohibit ex post facto laws.

The Supreme Court has repeatedly emphasized that citizens must have “fair warning” of what the law proscribes.

See Bouie v. City of Columbia, 378 U.S. 347 (1964).

To punish a person for conduct that was lawful when undertaken violates the most basic element of due process. The CCA has consistently enforced this principle.

See Ex parte Harvey, 846 S.W.2d 328 (Tex. Crim. App. 1993).

C. The Modern First Amendment Standard: Counterman v. Colorado

The U.S. Supreme Court’s recent decision in Counterman v. Colorado, 600 U.S. 66 (2023), further underscores the constitutional infirmity of speech-based stalking prosecutions.

Counterman held that the First Amendment requires proof that the defendant acted with a subjective mens rea—knowledge or recklessness as to the threatening nature of the speech.

A prosecution predating that clarification—and one that was based on online commentary not even encompassed by the statute—fails both the statutory and constitutional standards.

IV. The Double Nullity: Structural and Substantive Collapse

The result is a rare convergence of two independent voidness doctrines:

Type of Voidness	Source	Legal Effect
Structural	Constitutional disqualification of the judge	Jurisdictional defect rendering all acts void ab initio.
Substantive	Absence of statutory offense / ex post facto application	Lack of subject-matter jurisdiction; court powerless to proceed.

Either ground alone destroys validity; together they eliminate any legal foundation for the judgment.

No appellate procedural rule—particularly the Fifth COA’s strict application of Rule 52—can resurrect jurisdiction where none ever existed.

V. The Court of Criminal Appeals’ Authority and Duty

The CCA’s responsibility is not limited to error correction; it includes the inherent duty to protect the integrity of the criminal justice system. The Court possesses ample authority to act:

• Mandamus Relief: The refusal to transfer the disqualification motion was a failure to perform a ministerial duty, which mandamus lies to correct.
  
  
• Rule 2 Suspension: Under Tex. R. App. P. 2, the Court “may suspend a rule’s operation in a particular case … to prevent injustice.” When ordinary procedural rules shield a void judgment, suspension is not only permitted but imperative.
  
  
• Vacatur and Remand: The CCA may declare the judgment void, vacate all dependent orders, and direct that any further proceedings occur only under a properly drawn charging instrument (if one were possible) and before a disinterested tribunal.
  
  

VI. Conclusion

The Texas Court of Criminal Appeals now faces a defining moment. The issues presented in WR-90,105-05 are not procedural; they are existential.

A judgment that is both structurally void (disqualified judge) and substantively void (non-existent crime) cannot stand under any construction of due process or fundamental fairness.

To act decisively here is to reaffirm that Texas remains governed by law, not by expediency.

To decline is to signal that voidness and validity are matters of perspective—

a message no court should ever send.

Relator: Babak Taherzadeh

Filing: Active Mandamus before the Texas Court of Criminal Appeals (WR-90,105-05)

Type o