Capps, Charles Andrew

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-83,978-01

EX PARTE CHARLES ANDREW CAPPS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13-02-01707-CR (1) IN THE 9th 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 convicted of online solicitation of a minor and he was sentenced to five years’ imprisonment. He did not appeal his conviction.

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, through counsel, filed this habeas application based on the Lo decision and asks that his conviction be set aside. The trial court recommends that relief be granted in this cause. We agree.

Relief is granted. The judgment in Cause No. 13-02-01707-CR in the 9th District 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Delivered: February 10, 2016 Do not publish