             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,242



                        EX PARTE JERRY LEE EVANS Applicant



         ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 86-92048-L IN THE CRIMINAL DISTRICT COURT NUMBER FIVE
                        FROM DALLAS 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 imprisonment. The Fifth Court of Appeals affirmed his conviction.

Evans v. State, No. 05-87-00192-CR (Tex. App–Dallas, delivered December 28, 1987, no pet.).

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

the offense in this cause. Specifically, the Applicant contends that post-conviction DNA testing,

which was not available at the time of trial, reflects that he is actually innocent.
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        The trial court has entered findings of fact and conclusions of law, based upon DNA test

results it has received, that the Applicant has been eliminated as the contributor of the sperm fraction

found in the vaginal swab taken after the sexual assault. The trial court concludes that Applicant has

proved by clear and convincing evidence that a jury would acquit him based on this newly

discovered evidence and would find that he is not guilty of this offense. We agree. Applicant is

entitled to relief. Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002); Ex parte Elizondo, 947

S.W.2d 202 (Tex. Crim. App. 1996).

        Relief is granted. The judgment in Cause No. 86-92048-L in the Criminal District Court

Number Five of Dallas County is set aside, and Applicant is remanded to the custody of the Sheriff

of Dallas 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: October 21, 2009
Do Not Publish
