Stewart, Cynthia ( 2018 )

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
2
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
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