Opinion

Benton, Kip Lee

Court
Court of Criminal Appeals of Texas
Filed
May 25, 2022
Status
Published
Cited by
0 cases
Authority
More cited than 8.6%

The opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,123-03

EX PARTE KIP LEE BENTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 29901CR-C

TH

IN THE 40 DISTRICT COURT FROM ELLIS COUNTY

Per curiam. KELLER, P.J. filed a dissenting opinion, in which SLAUGHTER, J. joined

section C only. YEARY , J. filed a dissenting opinion. KEEL, J. dissents.

OPINION

Applicant pleaded not guilty and was convicted by a jury of two counts of the aggravated

sexual assault of a disabled individual. He was sentenced to sixty years’ imprisonment for each

count. The Tenth Court of Appeals affirmed his conviction. Benton v. State, 237 S.W. 3d 400 (Tex.

App.—Waco 2007, pet. ref’d). Applicant filed this application for a writ of habeas corpus in the

county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC.

art. 11.07.

Applicant contends that his convictions were based on a law which was not effective until

after the alleged offenses occurred. TEX . PENAL CODE §22.021. Applicant was convicted of the

2

offense of aggravated sexual assault of a disabled person that allegedly occurred on June 15, 2003

and July 15, 2003. The statute making the sexual assault of a disabled person a first degree

aggravated sexual assault under the Texas Penal Code was not effective until September 1, 2003.

TEX . PENAL CODE 22.021(a)(2)(C). The actions allegedly committed by Applicant in June and July

of 2003 did not constitute the offense of aggravated sexual assault at the time, therefore the

judgments in these counts are void.

Relief is granted. The judgments in cause number 29901CR, counts one and three, in the 40th

District Court of Ellis County are set aside, and Applicant is remanded to the custody of the Sheriff

of Ellis County to answer the charges as set out in the indictment. The trial court shall issue any

necessary bench warrant within ten days from the date of this Court’s mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: May 25, 2022

Do not publish

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.