             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,124



                     EX PARTE JOHN FRANK BARNETT, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 1110071 IN THE 232ND DISTRICT COURT
                           FROM HARRIS 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of

cocaine in an amount weighing more than 1 gram and less than 4 grams and was sentenced to two

years’ imprisonment. He did not appeal his conviction.

        Applicant contends that he is actually innocent based on a newly-available lab report

indicating that the cocaine weighed .94 grams. Based on this lab report, the trial court concluded that

Applicant has established by clear and convincing evidence that no reasonable juror would have
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convicted him of the offense of possession of cocaine in an amount weighing more than 1 gram and

less than 4 grams. The trial court recommended that this Court grant relief. We agree. The judgment

in Case No. 1110071 from the 232nd Judicial District Court of Harris County is set aside, and

Applicant is remanded to the custody of the Harris County Sheriff to answer the charges against him.

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

Institutions Division and Pardons and Paroles Division.



Delivered: April 1, 2009
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