Summary
granting habeas petition and discharging defendant from custody where the penal code provision under which he was convicted was later determined to be unconstitutional
Summary of this case from Martinez v. StateOpinion
No. 43206.
June 10, 1970.
Appeal from the Criminal District Court No. 5 of Dallas County, Ed Gossett, J.
Leston Junior Scott, pro se.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
By writ of habeas corpus, petitioner seeks his discharge from the state penitentiary after being convicted in 1968 for possession of obscene photographs, alleging that the portion of Article 527, Vernon's Ann.P.C., prior to its amendment in 1969 making mere possession of obscene photographs an offense, was unconstitutional under the holdings in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, and Ex parte Phelper, Tex.Cr.App., 442 S.W.2d 695. We agree.
Petitioner was convicted of possession of obscene photographs in Cause No. C — 67 — 4244 — L in Criminal District Court No. 5 of Dallas County, Texas, on October 10, 1968, and sentenced to five (5) years.
He filed his post conviction application for writ of habeas corpus in the Criminal District Court No. 5 of Dallas County, Texas, and the judge made findings of fact and conclusions of law that relief should be granted, and petitioner should be discharged.
Therefore, it is ordered, adjudged and decreed that petitioner's application for writ of habeas corpus be granted, and petitioner is hereby discharged from custody under this conviction.
It is so ordered.