Whillhite, Bryan Wayne

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
2

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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