Opinion
NO. WR-82,809-02
01-27-2016
EX PARTE CARL DEWAYNE ANTHONY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR11-120 IN THE 4TH DISTRICT COURT FROM RUSK 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 pleaded guilty to online solicitation of a minor under Section 33.021(b) of the Texas Penal Code, and was sentenced to twenty-six years' imprisonment. He did not appeal his conviction.
Applicant contends 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. Applicant also alleges that he should be "declared innocent" of the offense.
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. CR11-120 in the 4th District Court of Rusk 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 27, 2016
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