              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-81,530-01


                             EX PARTE DARIUS SMITH, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 1388262-A IN THE 209th 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 of one to four grams and sentenced to two years’ imprisonment. He did not

appeal his conviction.

        Applicant contends that newly discovered evidence in this case only supports a conviction

for the lesser included offense of possession of cocaine in an amount of less than one gram.

        Applicant’s claim is supported by the habeas record. Applicant is entitled to relief. State v.
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Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010).

       Relief is granted. The judgment in Cause No. 1388262-A in the 209th District Court of Harris

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

answer the charges as set out in the indictment. The trial court shall issue any necessary bench

warrant within 10 days after the mandate of this Court issues.

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

Institutions Division and Pardons and Paroles Division.

Delivered: September 17, 2014
Do not publish
