             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-75,638



                            EX PARTE R.A. STROUD, Applicant

                                                  v.

                                    THE STATE OF TEXAS

          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
     CAUSE NO. 114-1633-04-A IN THE 114 TH JUDICIAL DISTRICT COURT
                         FROM SMITH COUNTY

       P ER CURIAM. M EYERS, and J OHNSON, JJ., dissented.

                                           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 was convicted of aggravated sexual

assault and sentenced to twenty years’ imprisonment and a fine of five thousand dollars.

       Applicant contends that he is actually innocent of the offense of aggravated sexual assault

but is guilty of sexual assault. Specifically, applicant alleges that no reasonable juror could have

convicted him of aggravated sexual assault because the victim, Megan O’Bryan, was not younger
                                                                                          STROUD - 2

than fourteen years of age at the time of the offense. TEX . PEN . CODE § 22.021(a)(2)(B). We

remanded to the trial court so that an evidentiary hearing could be held, and further findings made

regarding applicant’s claim.

        The trial court conducted an evidentiary hearing, and has determined that newly discovered

evidence shows that Ms. O’Bryan was fourteen years old at the time of the offense. The trial court

concludes that applicant has met his burden of proving by clear and convincing evidence that no

reasonable juror could have convicted applicant of aggravated sexual assault in light of the newly

discovered evidence. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). The parties

agreed at oral argument that appellant is not guilty of aggravated sexual assault but is guilty of sexual

assault. TEX . PEN . CODE § 22.011(a)(2)(A). We agree.

        The judgment in cause number 114-1633-04-A in the 114th Judicial District Court of Smith

County is reformed to reflect guilt of the offense of sexual assault. Applicant is remanded to the trial

court for a new punishment hearing.

        Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Parole Division.

Delivered: February 13, 2008
Do Not Publish
