             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-78,260-01


                          EX PARTE DANIEL VILLEGAS, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 76187 IN THE 41ST DISTRICT COURT
                             FROM EL PASO COUNTY


        Per curiam. PRICE, J., filed a concurring opinion.

                                            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 capital murder

and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his conviction. Villegas

v. State, No. 08-95-00272-CR (Tex. App.—El Paso July 10, 1997) (unpublished).

        Applicant contends, in several allegations, that he received ineffective assistance of counsel,

and that he is actually innocent.

        The trial court held a series of live hearings and made findings of fact and conclusions of law.

The trial court determined that counsel was ineffective and Applicant is actually innocent under
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Schlup v. Delo, 513 U.S. 298 (1995). Based on this Court’s independent review of the record, we

agree that Applicant is entitled to relief due to ineffective assistance of counsel, but disagree that he

has shown he is actually innocent. In a Schlup actual-innocence claim, evidence demonstrating

innocence is a prerequisite the applicant must satisfy to have an otherwise barred constitutional claim

considered on the merits. Schlup, 513 U.S. at 314-15. In this case, the trial court found that Sixth

Amendment ineffective assistance of counsel violations, combined with the cumulative evidence of

innocence, showed that Applicant was actually innocent. Because Applicant’s ineffective assistance

of counsel claims are not procedurally barred as subsequent, a Schlup innocence claim dependent

on them is improper. We further find that Applicant has not shown that new facts “unquestionably

establish” his innocence. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

However, we agree Applicant has demonstrated that counsel was ineffective for not presenting

evidence of possible alternative perpetrators and for not discovering and presenting evidence that

would have allowed the jury to give effect to the voluntary confession jury instruction submitted in

this case.

        Relief is granted. The judgment in Cause No. 76187 in the 41st District Court of El Paso

County is set aside, and Applicant is remanded to the custody of the Sheriff of El Paso 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: December 18, 2013
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