             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,068



                       EX PARTE RICARDO RACHELL, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 928275 IN THE 185 TH 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 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 forty years’ imprisonment. The Eleventh Court of Appeals affirmed his

conviction. Rachell v. State, No. 11-03-0192-CR (Tex. App.–Eastland, delivered September 30,

2004, pet. ref’d).

        Applicant contends that he has newly discovered evidence that he is actually innocent of this

offense. The trial court has determined that no rational jury would have convicted Applicant in light
of the new evidence, which was previously unavailable to Applicant. The evidence, obtained

pursuant to post-conviction DNA testing and investigation, indicates that it was another individual,

rather than Applicant, who committed this offense. Applicant is entitled to relief. Ex parte Elizondo,

947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

       Relief is granted. The judgment in Cause No. 928275 in the 185th District Court of Harris

County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to

answer the charge against him.

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

Institutions Division and Parole Division.



Delivered: January 14, 2009
Do Not Publish
