Opinion
NO. WR-81,807-01
01-13-2016
EX PARTE ANTHONY ERVIN KELLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1128200 IN THE 262 DISTRICT COURT FROM HARRIS COUNTY Per curiam. Alcala , J., not participating. OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to online solicitation of a minor pursuant to Section 33.021(b) of the Texas Penal Code, and was sentenced to ten years' imprisonment.
This Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute pursuant to which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his conviction be set aside.
Applicant contends that he is actually innocent, and that his conviction is void based on this Court's opinion in Ex parte Lo, 424 S.W.3d 10, 19 (Tex. Crim. App. 2013), holding that Section 33.021(b) is unconstitutionally overbroad. The trial court recommends that relief be granted.
This Court recently held that relief under the circumstances described by Applicant is not available under an actual innocence theory. Ex parte Fournier, No. WR-82,102-01, ___ S.W.3d ___ (Tex. Crim. App. Oct. 28, 2015). However, Applicant is entitled to relief under Lo and our subsequent decision in Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).
Relief is granted. The judgment in Cause No. 1128200 in the 262 District Court of Harris County is set aside, and the cause is remanded so the trial court can dismiss the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. Delivered: January 13, 2016
Do Not Publish