
 








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,345


EX PARTE NORMAN ERVIN MACK, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM CAUSE NO. 1042753 IN THE 337TH JUDICIAL DISTRICT COURT OF
HARRIS COUNTY


 Per curiam.

O P I N I O N 



 This is a post-conviction application for a writ of habeas corpus forwarded to this
Court pursuant to Tex. Code Crim. Proc.  art. 11.07, § 3, et seq..  Applicant pleaded guilty
to the state jail felony offense of possession of a controlled substance, and punishment was
assessed at six months' state jail confinement.  No direct appeal was taken.
	Applicant contends that he has newly discovered evidence of his innocence.  When
Applicant agreed to plead guilty to possession of a controlled substance, to wit: cocaine, the
substance had not yet been analyzed in a laboratory.  Although the police report indicated
that the substance had field tested positive for cocaine, Applicant's plea was entered with the
understanding that the substance would still be tested in the laboratory, and that if it proved
not to be cocaine, the State would join the defense in a motion for a new trial.  The  Harris
County Medical Examiner's Office performed an analysis of the substance on November 22,
2005.  The lab report shows that the substance was not cocaine, but chlorpromazine.  
	Applicant's counsel has provided an affidavit stating that he would not have assisted
Applicant in pleading guilty if he had known that the substance was not cocaine, but would
have recommended taking the case to trial.  This Court has held that a guilty plea will not
preclude a subsequent claim of actual innocence.  Ex parte Tuley, 190 S.W.3d 388, 393 (Tex.
Crim. App. 2002).
	The trial court has entered findings of fact and conclusions of law recommending that
Applicant be granted a new trial.   The State concedes and we agree that Applicant has
proven by clear and convincing evidence that no reasonable juror would have convicted him
of possessing cocaine in light of the laboratory test results.  Habeas corpus relief is granted. 
The judgment in cause number 1042753 from the 337th Judicial District Court of Harris
County is set aside, and Applicant is remanded to answer the charges against him.
	Copies of this opinion shall be sent to the Texas Department of Criminal Justice, state
jail and pardons and paroles divisions.

DO NOT PUBLISH
DELIVERED: March 1, 2006
