             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,382



                       EX PARTE DARIAN J. CONTEE, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 2006-414,729 IN THE 140th DISTRICT COURT
                         FROM LUBBOCK 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 unlawful

possession of a firearm by a felon and sentenced to three years’ imprisonment. He did not appeal

his conviction.

       Applicant contends that he is actually innocent based upon newly discovered evidence.

Specifically, the Applicant contends he is actually innocent based upon newly discovered lab

analysis from the Texas Department of Public Safety which shows that he did not possess a firearm
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in this case.

        The trial court, based upon the record, has recommended that relief be granted. Applicant

is entitled to relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Ex parte Tuley, 109

S.W.3d 388 (Tex. Crim. App. 2002).

        Relief is granted. The judgment in Cause No. 2006-414,729 in the 140th Judicial District

Court of Lubbock County is vacated, and Applicant is remanded to the custody of the sheriff of

LUBBOCK County to answer the charges as set out in the indictment.

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

Institutions Division and Pardons and Paroles Division.



Delivered: August 5, 2010
Do Not Publish
