Opinion
NO. WR-83,542-01
01-13-2016
EX PARTE TIMOTHY E. THOMPSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 09-03-02703-CR IN THE 9 DISTRICT COURT FROM MONTGOMERY 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 found guilty of two counts of online solicitation of a minor and was sentenced to life imprisonment on each count. The Ninth Court of Appeals affirmed his convictions. Thompson v. State, 09-09-00199-CR (Tex. App.-Beaumont, Aug. 18, 2010)(not designated for publication).
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 Ex parte 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 judgments for both counts in Cause No. 09-03-02703-CR in the 9District Court of Montgomery County is set aside and the cause is remanded so the trial court can dismiss the indictment. 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Do not publish