Horton, Alice ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-79,769-01

---

EX PARTE ALICE HORTON, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2012-0026-A

IN THE 159^TH DISTRICT COURT FROM ANGELINA COUNTY

---

   Per curiam. O P I N I O N  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted in count one of possession of controlled substance and in count two of possession or transport of certain chemicals with intent to manufacture a controlled substance. She was sentenced to three years' imprisonment in each count. She did not appeal her convictions.

After Applicant pleaded guilty and was sentenced, the lab report from the Department of Public Safety showed that no controlled substance was found. Applicant alleges that the lab report shows that she is actually innocent of these offenses.

The trial court has determined that the lab report does show that no controlled substance was found and that Applicant has established by clear and convincing evidence that a jury would acquit her of count one. The State and the trial court both recommend granting relief as to count one. The trial court and State agree that the lab report is not relevant as to count two. Applicant is entitled to relief on count one only.

Relief is granted. The judgment in count one of Cause No. 2012-0026 in the 159^th Judicial District Court of Angelina County is set aside, and Applicant is remanded to the Angelina County Sheriff to answer the charge against her. The judgment in count two of Cause number 2012-0026 remains. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Delivered: July 24, 2013

Do Not Publish