




 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 75,530


EX PARTE BILLY WAYNE MILLER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS 
TRIAL COURT CAUSE NO. W84-89777-P(F)
IN THE 203rd JUDICIAL DISTRICT COURT
FROM DALLAS COUNTY


 Per curiam.

 O P I N I O N


	This is an application for a writ of habeas corpus which was transmitted to this Court 
pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07.  Applicant was convicted
of the offense of aggravated sexual assault, and punishment was assessed at confinement for
life.  Applicant's judgment of conviction was affirmed on direct appeal.  Miller v. State, No.
03-84-00055-CR (Tex. App.--Austin, delivered August 28, 1991, (opinion on remand),  pet.
ref'd).  
	Applicant contends that he is actually innocent.  Post-conviction DNA testing
conducted by the Texas Department of Public Safety crime lab pursuant to Chapter 64 of the
Code of Criminal Procedure excludes Applicant as being the contributor of the semen
obtained from the vaginal swab taken at the time the crime was allegedly committed in 1984. 
The State agrees that Applicant is actually innocent.  The trial court concluded Applicant is
actually innocent, that no reasonable juror would have convicted Applicant in light of the
new evidence, and recommended that relief be granted.  Ex parte Elizondo, 947 S.W.2d 202
(Tex. Crim. App. 1996).  We agree.  Relief is granted.  Applicant's judgment and sentence
in cause number W84-89777-P in the 203rd Judicial District Court from Dallas County is
vacated, and the Applicant is ordered returned to the Sheriff of Dallas County to answer the
charges set out in the indictment.

 IT IS SO ORDERED THIS THE 25th  DAY OF OCTOBER, 2006.



DO NOT PUBLISH  
 
