Gilliland, Joseph Wayne

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,473-01
EX PARTE JOSEPH WAYNE GILLILAND, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1413241-A IN THE 182ND 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
marihuana and sentenced to six months’ imprisonment in a state jail facility. He did not appeal his
conviction.
Applicant contends that post conviction testing of the substances reveal that he possessed less
than four ounces of marihuana, and that there is insufficient evidence to support his conviction for
a felony. He also argues that the new test results prove he is actually innocent. The State and trial
2
court agree that there is “no evidence” to support the judgment, and Applicant that is entitled to
relief.
We agree. Applicant is entitled to habeas relief, but he has not carried his burden to prove
he is actually innocent. The “actual innocence” term applies in Texas cases “only in circumstances
in which an accused did not, in fact, commit the charged offense or any of the lesser-included
offenses.” State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010). Here, Applicant has proven
he should not have been convicted of the greater offense of state jail felony possession of marihuana
to which he pleaded. But he has also proven that he is guilty of the lesser-included offense of
misdemeanor possession of marihuana. Though he is not “actually innocent,” Applicant is entitled
to relief. State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010).
Relief is granted. The judgment in Cause No. 141324101010 in the 182nd 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: February 25, 2015
Do not publish