             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                          NOS. AP-76,000, AP-76,001 & AP-76,002



                 EX PARTE PATRICK LEONDOS WALLER Applicant



             ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
            CAUSE NOS. F-9056056-VI, F92-02560-JI, F92-40874-LI IN
          CRIMINAL DISTRICT COURT NO. 2 FROM DALLAS 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 these applications for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded not guilty to an aggravated

robbery charge in cause no. F92-40874-LI, but was convicted following a jury trial, and sentenced

to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Waller v. State, AP-05-93-

00335-CR, (Tex. App. – Dallas, 1993) (not designated for publication). Applicant pleaded guilty

to an aggravated kidnaping charge in cause no. F92-02560-JI and the trial judge assessed punishment

of 30 years’ confinement. The Fifth Court of Appeals dismissed his appeal. See Waller v. State, AP-
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05-93-00333-CR, (Tex. App. – Dallas, 1993) (not designated for publication).            Applicant was

charged with the aforementioned offenses while he was on deferred adjudication probation in a

possession of controlled substance case in cause number F-9056056-VI. Following the jury’s

conviction in the aggravated kidnaping case, the trial judge adjudicated Applicant’s guilt, and

assessed a sentence of 20 years’ confinement. The Fifth Court of Appeals dismissed his appeal.

Waller v. State, AP-05-93-00332-CR, (Tex. App. – Dallas, 1996) (not designated for publication).

        In Writ Nos. WR-70,417-02 and WR-70,417-03, Applicant challenges his aggravated

kidnaping and aggravated robbery convictions. Applicant contends he is actually innocent of these

offenses as new DNA evidence shows that he did not commit the sexual assault underlying these

offenses. He has submitted evidence showing that new DNA testing shows that another man

committed the underlying sexual assault and that this man has confessed to committing these

offenses. The trial judge has entered findings of fact and conclusions of law recommending that

relief be granted on the basis of actual innocence. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim.

App. 1996); Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). The trial judge’s findings are

supported by the record. We grant relief on actual innocence grounds.

        In Writ No. WR-70,417-01, Applicant challenges his possession of a controlled substance

offense. He contends that the revocation of his deferred adjudication probation violated his due

process rights as there is no evidence to support a finding that he violated the terms of his probation,

but for the aggravated robbery offense which he has now shown he did not commit. The trial judge

has entered findings of fact and conclusions of law recommending that relief be granted. We agree.

We grant relief.

        Relief is granted. The judgments in Cause Nos. F92-02560-JI and F92-40874-LI from
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Criminal District Court No. 2 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. The trial court’s

judgment revoking community supervision in Cause No. F90-56056-VI is set aside and the Director

of the Texas Department of Criminal Justice-Correctional Institutions Division is ordered to return

Applicant to the custody of Dallas County for further proceedings by the trial court.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: September 24, 2008
Do Not Publish
