              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-83,418-01


                      EX PARTE IAN PATRICK WHEELER, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. W-22281-A-1 IN THE 47TH DISTRICT COURT
                            FROM RANDALL 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 pled guilty under a plea agreement

to online solicitation of a minor. He was sentenced to eight years’ imprisonment.

        Applicant argues that his conviction should be set aside because the statute of conviction was

declared unconstitutional by this Court in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). He

also argues that he should be found actually innocent. The trial court finds that Applicant is entitled

to have the conviction set aside under Ex parte Lo but that he is not entitled to a finding of actual
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innocence. This Court agrees. See Ex parte Lo, supra; Ex parte Fournier, 473 S.W.3d 789 (Tex.

Crim. App. 2015). Relief is granted to set aside the conviction, but no finding of actual innocence

is made.

       The judgment in Cause No. 22281-A in the 47th District Court of Randall 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: April 13, 2016
Do not publish
