             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,771



               EX PARTE ERIC CHRISTOPHER HERRERA, Applicant



            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. 11CR1398 IN THE 122 ND JUDICIAL DISTRICT COURT
                      FROM GALVESTON 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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a

controlled substance pursuant to an agreement whereby he was sentenced to six months’ county jail

under Section 12.44(a) of the Texas Penal Code. He did not appeal his conviction.

       Applicant contends that his conviction is void and that he is actually innocent, because the

substance he possessed was tested and determined not to contain a controlled substance. The results

of the testing performed by the Houston DPS crime lab were not available until after Applicant had
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pleaded guilty.

       A copy of the report is included in the habeas record. Based on that report, the trial court

determined that the “controlled substance” for which Applicant was prosecuted turned out not to be

a controlled substance. Applicant has proven by clear and convincing evidence that no reasonable

juror would have voted to convict him in light of the new evidence. Applicant is entitled to relief.

Ex parte Tuley, 109 S.W.3d 88, 92 (Tex. Crim. App. 2002) (citing Ex parte Elizondo, 947 S.W. 2d

202, 207 (Tex. Crim. App. 1996)).

       Relief is granted. The judgment in Cause No. 11CR1398 in the 122nd Judicial District Court

of Galveston County is set aside, and Applicant is remanded to the custody of the sheriff of

Galveston 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: April 18, 2012
Do Not Publish
