IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
TRIAL COURT CAUSE NO. W84-89777-P(F)
IN THE 203rd JUDICIAL DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
O P I N I O N
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated sexual assault, and punishment was assessed at confinement for life. Applicant's judgment of conviction was affirmed on direct appeal. Miller v. State, No. 03-84-00055-CR (Tex. App.--Austin, delivered August 28, 1991, (opinion on remand), pet. ref'd).
Applicant contends that he is actually innocent. Post-conviction DNA testing conducted by the Texas Department of Public Safety crime lab pursuant to Chapter 64 of the Code of Criminal Procedure excludes Applicant as being the contributor of the semen obtained from the vaginal swab taken at the time the crime was allegedly committed in 1984. The State agrees that Applicant is actually innocent. The trial court concluded Applicant is actually innocent, that no reasonable juror would have convicted Applicant in light of the new evidence, and recommended that relief be granted. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). We agree. Relief is granted. Applicant's judgment and sentence in cause number W84-89777-P in the 203rd Judicial District Court from Dallas County is vacated, and the Applicant is ordered returned to the Sheriff of Dallas County to answer the charges set out in the indictment.
IT IS SO ORDERED THIS THE 25th DAY OF OCTOBER, 2006.
DO NOT PUBLISH