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
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