Lape, Ex Parte Michael Bruce

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,016 EX PARTE MICHAEL BRUCE LAPE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 12-05-05234-CR IN THE 221^ST DISTRICT COURT

FROM MONTGOMERY 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to twenty-five years' imprisonment.

Applicant contends that he is actually innocent based on laboratory testing that revealed the substance he possessed was not a controlled substance. The trial court found that the substance Applicant possessed was not a controlled substance and concluded that Applicant is actually innocent of the offense. The trial court recommended that relief be granted. After a remand to the trial court, the habeas record now contains the report of the laboratory testing from the Texas Department of Public Safety, which reflects that no controlled substance was detected. Applicant is entitled to relief. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Relief is granted. The judgment in Cause No. 12-05-05234-CR in the 221^st Judicial District Court of Montgomery County is set aside, and Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

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

Delivered: April 24, 2013

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