Opinion
NO. WR-81,855-01
01-13-2016
EX PARTE MICHAEL ALAN BLAZEK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1221641-A IN THE 180 DISTRICT COURT FROM HARRIS COUNTY Per curiam. YEARY, J., filed a dissenting opinion. 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 was convicted of online solicitation of a minor and sentenced to four years' imprisonment. He did not appeal his conviction.
Applicant contends that the statute under which he was convicted was found to be unconstitutional, therefore he is actually innocent. This Court has held that when a statute is held to be unconstitutional, that does not mean that someone convicted under the statute is actually innocent. Ex parte Fournier, WR-82,102-01, ___ S.W.3d ___ (Tex. Crim. App. Oct. 28, 2015).
However, Applicant is still entitled to relief. This Court, in Exparte Lo, held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). Applicant filed this habeas application based on the Lo decision and asks that his conviction be set aside. The State recommends that relief be granted in this cause. We agree.
Relief is granted. The judgment in Cause No. 122164101010 in the 180 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Do not publish