Byars, Ex Parte Barry Sheen ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,293

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EX PARTE BARRY SHEENE BYARS, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 91788 IN THE CRIMINAL JUDICIAL

DISTRICT COURT JEFFERSON COUNTY

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   Per curiam. Keller, P.J. filed a concurring opinion, in which Hervey, J. and Cochran, J. joined.

  O P I N I O N  

     This is an application for a writ of habeas corpus that 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 the first degree felony offense of injury to a child. Following the trial court's decision to revoke his community supervision and finally adjudicate him guilty, Applicant was sentenced to imprisonment for ten years. Applicant did not perfect an appeal.

In the instant application, Applicant contends that newly discovered evidence specifically, the complainant's recantation of the allegation made against Applicant, unquestionably establish that he is actually innocent of the instant offense.

Following a live evidentiary hearing, the trial court has found that Applicant "has shown by clear and convincing evidence that no reasonable juror would convict him in light of the newly discovered evidence of actual innocence . . . ." After a review of the record, we find that the trial court's determination is supported by the record, and find that Applicant is entitled to habeas corpus relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The judgment in cause number 91788 from the Criminal Judicial District Court of Jefferson County, Texas, is vacated. Applicant is remanded to the custody of the Sheriff of Jefferson County to answer to the indictment.   

A copy of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions Division.

PUBLISH

DELIVERED: November 9, 2005