Opinion
No. AP-75,042
Delivered: November 17, 2004. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus from Dallas County.
OPINION
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Texas Code of Criminal Procedure, Article 11.07. Ex parte Young, 418 S.W.2d 824, 824 (Tex.Crim.App. 1967). Applicant was convicted of burglary of a habitation with intent to commit theft, rape, and sexual abuse. Applicant's sentence was assessed at life imprisonment. Applicant contends that he is innocent based on newly discovered DNA evidence. At the time of his 1983 trial, testing was done that showed that Applicant was included in the 30% of white male population that could have left the biological evidence. In 2003 a motion was made and granted for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Applicant submitted a sample, and in a report dated April 7, 2004, the DPS Laboratory excluded Applicant as a contributor to the sperm sample taken from the vaginal swab of the victim. The State agrees that Applicant is entitled to relief. The trial court took judicial notice of the Court's original file, the transcript and reporter's record of the trial, the DNA filings, and the Application for Writ of Habeas Corpus and attachments in this case, and has entered findings of fact and conclusions of law in which it has found that Applicant is entitled to habeas corpus relief. In Ex parte Elizondo, 947 S.W.2d 202, (Tex.Crim.App. 1996), this court held, ". . . if applicant can prove by clear and convincing evidence to this Court, in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on his newly discovered evidence, he is entitled to relief." Id. at 209. After a review of the record, we agree with the trial court's determination and find that Applicant is entitled to habeas corpus relief due to newly discovered DNA evidence that was not available at the time of trial. The judgment and sentence in cause number F83-81435-J from the Criminal District Court No. 3 of Dallas County, Texas, is vacated. Applicant is remanded to the custody of the Sheriff of Dallas County to answer to the indictment. A copy of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions Division.