IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,867-01

EX PARTE DAVID RAY LEA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 52758-A IN THE 239TH DISTRICT COURT FROM BRAZORIA COUNTY

Per curiam.

ORDER 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). In counts two and three,1 Applicant was convicted of possession of child pornography and sentenced to six years’ imprisonment.

Applicant contends that his probation in counts two and three should not have been revoked since they were revoked solely on the allegation that Applicant violated a statute that has since been declared unconstitutional by this Court in Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App.

In count one, Applicant was sentenced to two years’ imprisonment for possession of child pornography. His sentence in count one has discharged.

2014).

We order that this application be filed and set for submission to determine if when a statute has been set aside on constitutional grounds, does the use of that offense to revoke a defendant’s probation in a different conviction, prior to that statute being declared unconstitutional, entitle the defendant’s revocation to be vacated. The parties shall brief these issues.

It appears that Applicant is represented by counsel. If that is not correct, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. TEX . CODE CRIM . PROC. art 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court on or before June 6, 2016.

Filed: April 6, 2016 Do not publish