              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.
                                                                                                  2

       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Do not publish
