              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-83,542-01


                      EX PARTE TIMOTHY E. THOMPSON, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                            CAUSE NO. 09-03-02703-CR
                        TH
                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
                                                                                               2

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 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: January 13, 2016
Do not publish
