Smith, Darius ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,530-01
EX PARTE DARIUS SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1388262-A IN THE 209th DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of
cocaine in an amount of one to four grams and sentenced to two years’ imprisonment. He did not
appeal his conviction.
Applicant contends that newly discovered evidence in this case only supports a conviction
for the lesser included offense of possession of cocaine in an amount of less than one gram.
Applicant’s claim is supported by the habeas record. Applicant is entitled to relief. State v.
2
Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010).
Relief is granted. The judgment in Cause No. 1388262-A in the 209th District Court of Harris
County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to
answer the charges as set out in the indictment. 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: September 17, 2014
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