                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00172-CR



             AVIS T. SANDERS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 4th District Court
                 Rusk County, Texas
              Trial Court No. CR12-161




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                 MEMORANDUM OPINION
       Avis T. Sanders was convicted for the second degree felony of online solicitation of a

minor under Section 33.021(b) of the Texas Penal Code and sentenced to seven years’

imprisonment. See TEX. PENAL CODE ANN. § 33.021(b) (West 2011).

       On appeal, Sanders has presented several issues, each addressing the issue of whether his

conviction was predicated on a void penal statute. After Sanders’ conviction, in a unanimous

opinion, the Texas Court of Criminal Appeals found the statute prohibiting the conduct of which

Sanders was charged facially unconstitutional.          Ex parte Lo, No. PD-1560-12, 2013

WL 5807802, at *1 (Tex. Crim. App. Oct. 30, 2013). Under the terms of that opinion, the act is

not a criminal offense. Unconstitutional statutes are void from their inception. Lapasnick v.

State, 784 S.W.2d 366, 368 (Tex. Crim. App. 1990). Thus, Sanders cannot be punished based on

his conviction for violating a void statute.

       The State has now filed its brief acknowledging that its prosecution was indeed based

solely upon an unconstitutional penal statute, confessing error, and joining Sanders in praying for

reversal of the judgment and sentence. Because of the unusual posture of this case, rather than

submitting the case to this Court in twenty-one days pursuant to the Rules, we direct that it be

submitted to this Court the date of this opinion.

       We reverse the judgment, and consistent with the disposition of Lo, we direct the trial

court to dismiss the indictment. As Sanders stands acquitted of all allegations and the State has




                                                    2
conceded error requiring reversal and because the statute on which he was convicted is void and

cannot support a criminal conviction, we further direct that Sanders be promptly released from

imprisonment.




                                                   Bailey C. Moseley
                                                   Justice

Date Submitted:      March 5, 2014
Date Decided:        March 6, 2014

Do Not Publish




                                              3
