              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-88,707-01


                         EX PARTE CYNTHIA STEWART, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                           CAUSE NO. 2012-CR-2106-W-W1
                          TH
                IN THE 399 DISTRICT COURT FROM BEXAR 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 sentenced to six years’ imprisonment. She did not appeal her conviction.

        Applicant alleges that her conviction is based on an unconstitutional statute, and that she is

actually innocent.

        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
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filed this habeas application based on the Lo decision and asks that her conviction be set aside. The

State recommends that relief be granted in this cause.

       Relief is granted based on Applicant’s claim that she was convicted under authority of an

unconstitutional statute. Applicant is not entitled to relief on her actual innocence claim. Ex parte

Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015). The judgment in Cause No. 2012CR2106W in

the 399th District Court of Bexar 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: September 12, 2018
Do not publish
