              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-13,685-07


                   EX PARTE ANTHONY RAY MASSINGILL, Applicant


            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                         CAUSE NO. 79-13005-I
IN THE CRIMINAL DISTRICT COURT NUMBER TWO FROM DALLAS COUNTY


        Per curiam. K EASLER, J., not participating.

                                            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 aggravated rape

and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Massingill

v. State, No. 05-81-00395-CR (Tex. App.–Dallas Feb. 24, 1982)(not designated for publication).

        Applicant contends that false testimony was presented at his punishment hearing. In order

to obtain relief, Applicant must show that the testimony in question was false and that it was material

to his punishment. Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). Applicant’s claims
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are based on newly discovered DNA evidence of his innocence in two unrelated cases. Testimony

regarding Applicant’s guilt in those unrelated cases was presented at the punishment phase of this

trial. The DNA evidence now shows that the testimony presented was false, although no one knew

that it was false when it was presented to the trial court.

          The trial court has determined that the testimony presented was false, and that it was material

to the court’s determination of Applicant’s punishment. We agree. Relief is granted. The sentence

in Cause No. 79-13005-I in Criminal District Court Number Two of Dallas County is set aside, and

Applicant is remanded to the custody of the Sheriff of Dallas County for a new punishment hearing.

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: September 17, 2014
Do not publish
