Diaz, Ex Parte Olga Gutierrez

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2007
• Docket: AP-75,751
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,751 EX PARTE OLGA GUTIERREZ DIAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1054229-A IN THE 180^TH DISTRICT COURT

FROM HARRIS COUNTY

Per curiam.

O P I N I O N

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 pleaded guilty and was convicted of possession of heroin more than one gram but less than four grams and sentenced to ten years' imprisonment. She did not appeal her conviction.

After Applicant pleaded guilty and was sentenced, the lab report from the medical examiner's office revealed that the actual amount of heroin was less than 1 gram. Applicant alleges that the lab report shows that she is actually innocent of the third degree felony of which she is convicted.

The trial court has determined that the lab report does show an amount less than 1 gram and that Applicant has established by clear and convincing evidence that a jury would acquit her of the third degree offense of possession of heroin in an amount more than one gram and less than four grams. The State and the trial court both recommend granting relief. Applicant is entitled to relief.

Relief is granted. The judgment in Cause No. 1054229 in the 180^th Judicial District Court of Harris County is set aside, and Applicant is remanded to the Harris County Sheriff to answer the charge against her.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Delivered: September 12, 2007

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