









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,293


EX PARTE BARRY SHEENE BYARS, Applicant






ON APPLICATION FOR WRIT OF HABEAS CORPUS 
CAUSE NUMBER 91788 IN THE CRIMINAL JUDICIAL 
DISTRICT COURT JEFFERSON COUNTY 


 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
