Cantu, Ex Parte Raul Alfred ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. AP-75,214

---

EX PARTE RAUL ALFRED CANTU, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 1017769-A IN THE 337^TH JUDICIAL DISTRICT COURT,

HARRIS 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 by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of cocaine in an amount of less than one gram, and was sentenced to six months' confinement in state jail. Applicant did not appeal this conviction.

At the time of Applicant's plea, the substance alleged to be cocaine had not yet been tested by the crime lab, although a field test conducted at the time of Applicant's arrest had resulted in a "positive" for cocaine. Applicant had been previously convicted of two felonies, and would have been subject to punishment for a second-degree felony if he had not accepted the State's plea offer.

In this writ, Applicant raises a claim of actual innocence. The prosecuting attorney has provided an affidavit, stating that the substance thought to be cocaine was tested some time after Applicant's plea by the Houston Police Department Crime Laboratory, and was found to contain no controlled substances.

The trial court has entered findings of fact and conclusions of law, recommending that Applicant be granted a new trial. The court finds, inter alia, that "Applicant has shown by clear and convincing evidence that a jury would acquit him based upon the newly discovered evidence that the substance he possessed did not contain any controlled substance." We take this finding to mean that the court has fully considered the significance of Applicant's guilty plea, weighed that circumstance against the newly discovered evidence, and determined that in light of that new evidence no reasonable jury would have convicted him. See Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002); Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Relief is granted. The judgment and sentence in cause no. 1017769-A, from the 337^th Judicial District Court of Harris County is vacated, and the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, is ordered to return the applicant to the custody of the Sheriff of Harris County so that he may answer the charges against him.

DELIVERED: July 27, 2005

DO NOT PUBLISH