The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,154-01
EX PARTE BRYAN WAYNE WHILLHITE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-13-0586-SA-W-1 IN THE 391ST DISTRICT COURT
FROM TOM GREEN COUNTY
Per curiam. YEARY, J. filed a dissenting opinion joined by SLAUGHTER, J.
OPINION
Applicant pled guilty to one count of sexual assault of a child and one count of online
solicitation of a minor, and the trial court placed him on deferred-adjudication community
supervision for ten years. Subsequently, on the State’s motion, the trial court revoked Applicant’s
deferred-adjudication community supervision, adjudicated his guilt, and assessed his punishment at
seventy-five years’ confinement for each offense, with the sentences to run concurrently. The Third
Court of Appeals affirmed his conviction. Whillhite v. State, No. 03-18-00766-CR (Tex. App. —
Austin, Jan. 3, 2020). After filing a pro se petition for discretionary review, this Court remanded to
the Third Court of Appeals which then reversed his judgment of adjudication and rendered a
judgment of acquittal as to his conviction for online solicitation of a minor and affirmed his
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conviction for sexual assault of a child. Whillhite v. State, No. 03-18-00766-CR (Tex. App. —
Austin, May 27, 2021). 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 counsel was ineffective for failing to challenge the online solicitation
of a child charge. The trial court has found that the sentence issued at adjudication would likely have
been different had the parties and judge realized that one of the charges had already been declared
unconstitutional. The trial court therefore recommends a new punishment hearing.
We agree. Relief is granted. The sentence in cause number D-13-0586-SA-W-1 in the 391st
District Court of Tom Green County is set aside, and Applicant is remanded to the custody of the
Sheriff of Tom Green County for a new sentencing hearing. 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: November 22, 2023
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