             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,463



                    EX PARTE ALLEN WAYNE PORTER Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 582820 IN THE 248TH 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 life years’ imprisonment. The First Court of Appeals affirmed his

conviction. Porter v. State, No. 01-91-00454-CR (Tex. App.–Houston [1st Dist.], delivered July 16,

1992).

         Applicant was convicted solely on eyewitness testimony. The eyewitnesses testified that

three assailants committed the offense in this case. Applicant contends that he is actually innocent
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and offers newly discovered evidence in the form of fingerprint evidence which indicates someone

other than Applicant was present at the scene of the crime. In addition, a hearing on Applicant’s

habeas corpus application was held at which two of the three assailants who committed this offense

testified that Applicant was not a participant, but rather, the individual whose fingerprints were

found at the scene was the third assailant. Finally, a former girlfriend of one of the assailants

testified that she drove three individuals to the scene of the crime on the night of the offense in this

case, but Applicant was not one of them.

       The trial court entered findings of fact and conclusions of law recommending that relief be

granted because Applicant has proven by clear and convincing evidence that, despite the evidence

of guilt that supports the underlying conviction, no reasonable juror could have found Applicant

guilty in light of the newly discovered evidence presented at the hearing on Applicant’s habeas

corpus application. We agree. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006).

       Relief is granted. The judgment in Cause No. 582820 in the 248th Judicial 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 Pardons and Paroles Division.



Delivered: December 8, 2010
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