Rivera, Ex Parte Simon Angel

• Court: Court of Criminal Appeals of Texas
• Decided: January 26, 2005
• Docket: AP-75,071
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,071 EX PARTE SIMON ANGEL RIVERA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TRAVIS COUNTY

Per Curiam.

O P I N I O N

Applicant pleaded guilty to the offense of failure to register as a sex offender, and was sentenced to two years imprisonment. Tex. Code Crim. Proc. art. 62.10. No direct appeal was taken.

In this writ, applicant alleges that he is actually innocent of the offense of which he was convicted. He alleges that his guilty plea was involuntarily entered, and that his counsel was ineffective for advising him to plead guilty based on an incorrect understanding of the facts and the law applicable to the case. At the time of the alleged failure to report as a sex offender, applicant alleges that he was no longer required to report, a fact which he claims he brought to the attention of trial counsel.

After conducting a hearing in which the state appeared and agreed that the facts as alleged by applicant were true, the trial court has recommended granting relief on the basis of actual innocence. The court has entered findings of fact and conclusions of law, indicating that applicant has proven by clear and convincing evidence that no rational juror could have found him guilty beyond a reasonable doubt. We agree. See Ex parte Tuley, 109 S.W.3d 388, 394 (Tex. Crim. App.2002).

The judgment in applicant's case is hereby vacated, and the Director of the Texas Department of Criminal Justice, Institutional Division is ordered to return the applicant to the custody of the Travis County Sheriff so that he may answer the charges against him.

Delivered: January 26, 2005

Do not publish.