             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,797



                     EX PARTE RICKEY DALE WYATT, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
     CAUSE NO. W81-01187-K(E) IN THE CRIMINAL DISTRICT COURT 4
                       FROM DALLAS COUNTY



       Per curiam. Keasler, 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 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 ninety-nine years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Wyatt v. State, No. 05-81-00788-CR (Tex. App. – Dallas, August 16, 1982).

       Applicant contends, inter alia, that the State withheld material favorable and exculpatory

evidence from the defense. See Brady v. Maryland, 373 U.S.83, 87 (1963); Ex parte Kimes, 872

S.W.2d 700, 702-703 (Tex. Crim. App. 1993).
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       The parties have submitted agreed findings of fact and conclusions of law, which the trial

court has adopted. As a preliminary matter, the trial court finds that Applicant could not have raised

his Brady claim in a prior writ application, because the suppressed evidence was not available until

the current District Attorney instituted an open file policy. Therefore, this application is not a

subsequent application barred by Section 4 of Article 11.07 of the Texas Code of Criminal

Procedure.

       Applicant was arrested on January 24, 1981, as a suspect in three different cases involving

sexual assaults and attempted sexual assaults. The three complainants had given police descriptions

of their attacker, and eventually identified Applicant in photo lineups. One of the complainants

viewed a live lineup, in which Applicant was a participant, and failed to identify Applicant.

       At trial, Applicant relied on a defense of mis-identification. Applicant’s primary argument

was that at the time of the alleged offenses, he weighed between 130 and 144 pounds. The

descriptions given by the complainants involved a person who weighed at least 170 pounds. The

State presented testimony from the arresting officer, who testified that Applicant had told him that

he had lost approximately 30 pounds in the week and a half prior to his arrest. Applicant also

presented evidence that he had facial hair at the time of the offenses, which was inconsistent with

at least one of the complainants’ description of her attacker. The jury found Applicant guilty of one

charge of aggravated rape, and sentenced him to ninety-nine years’ imprisonment.

       In this application, Applicant alleges that the State withheld four specific items of evidence

which would have supported the defense’s theory of mis-identification. Those items were a police

photograph and fingerprint card from a May 20, 1980, arrest, which depicted Applicant with facial

hair and showed his weight as 135 pounds, a police report indicating that one of the complainants
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told police that her attacker weighed 200 pounds, and the fact that the same complainant had viewed

a live lineup and had not identified Applicant in that lineup.

       The State concedes that these items, which were in the possession of the State prior to trial,

were not disclosed to the defense pursuant to motions for discovery and for Brady information. The

trial court finds that each of these items was suppressed by the State, and that each of the items

constitutes material favorable or exculpatory evidence. The trial court recommends that Applicant’s

conviction be vacated based on the State’s non-disclosure of these items of evidence.

       We find, therefore, that Applicant is entitled relief. The judgment of conviction in Cause

No. F81-01187-PK from the Criminal District Court 4 of Dallas County is vacated, and Applicant

is remanded to the custody of the Dallas County Sheriff to face the charges against him. The trial

court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.




Delivered: May 9, 2012
Do Not Publish
