McGowan, Ex Parte Thomas Clifford ( 2008 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NOS. AP-75,934 & AP-75,935

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EX PARTE THOMAS CLIFFORD MCGOWAN, Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 85-98797-U & 85-81070-U IN THE 291^ST DISTRICT

                                  COURT FROM DALLAS COUNTY

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           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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and burglary of a habitation and sentenced to life imprisonment on each cause. The Fifth Court of Appeals affirmed his convictions. McGowan v. State, 729 S.W.2d 316 (Tex. App.–Dallas, 1987) and McGowan v. State, No. 05-86-271-CR (Tex. App.–Dallas, delivered February 4, 1987).

             Applicant contends that he has newly discovered evidence that he is actually innocent of these offenses. The trial court has determined that no rational jury would have convicted Applicant in light of the new evidence, which was previously unavailable to Applicant. The evidence, obtained pursuant to post-conviction DNA testing and investigation, indicates that Applicant is excluded from being the perpetrator in this case. Applicant is entitled to relief. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

            Relief is granted. The judgments in Cause Nos. 85-98797-U & 85-81070-U in the 291^st District Court of Dallas County are set aside, and Applicant is remanded to the custody of the Sheriff of Dallas County to answer the charges against him.

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

Delivered: June 11, 2008

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