









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,751


EX PARTE OLGA GUTIERREZ DIAZ, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1054229-A IN THE 180TH  DISTRICT COURT

FROM HARRIS COUNTY



 Per curiam.
 
O P I N I O N


	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 and was convicted
of possession of heroin more than one gram but less than four grams and sentenced to ten years'
imprisonment.  She did not appeal her conviction.
	After Applicant pleaded guilty and was sentenced, the lab report from the medical examiner's
office revealed that the actual amount of heroin was less than 1 gram.  Applicant alleges that the lab
report shows that she is actually innocent of the third degree felony of which she is convicted.
	The trial court has determined that the lab report does show an amount less than 1 gram and
that Applicant has established by clear and convincing evidence that a jury would acquit her of the
third degree offense of possession of heroin in an amount more than one gram and less than four
grams.  The State and the trial court both recommend granting relief.  Applicant is entitled to relief. 
	Relief is granted.  The judgment in Cause No. 1054229 in the 180th Judicial District Court of
Harris County is set aside, and Applicant is remanded to the Harris County Sheriff to answer the
charge against her.
	Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.

Delivered: September 12, 2007
Do Not Publish
