Sims, Ex Parte Larry

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2011
• Docket: AP-76,678
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,678

EX PARTE LARRY SIMS Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F-86-98846-VJ IN THE CRIMINAL DISTRICT COURT NUMBER THREE 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 twenty-five years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Sims v. State, No. 05-86-01082-CR (Tex. App.–Dallas Aug. 4, 1987).

This application for writ of habeas corpus is non-compliant with the appellate rules because

it contains more than one ground per page. TEX . R. APP . P. 73.1. However, because it is apparent 2

from the face of the record that Applicant is entitled to relief, the State has not moved to dismiss the

application as non-compliant, and the State agrees with the recommendation to grant relief, this

Court will exercise our inherent jurisdiction in this matter and address the application on its merits.

Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999).

Applicant contends, inter alia, that the prosecution withheld favorable material evidence

from the defense prior to trial. The State agrees that it had in its possession prior to trial a lab report

indicating that biological evidence was obtained pursuant to a medical examination on the night of

the incident. At trial, the State represented that no biological evidence existed in this case. Pursuant

to post-conviction DNA testing, Applicant was excluded as a contributor to that biological evidence.

The trial court urges this Court to grant relief and all parties agree. Applicant is entitled to relief.

Brady v. Maryland, 373 U.S. 83 (1963); Ex parte Kimes, 872 S.W.2d 700, 702-703 (Tex. Crim. App.

1993).

Relief is granted. The judgment in Cause No. F-86-98846-VJ in the Criminal District Court

Number Three from Dallas County is set aside, and Applicant is remanded to the custody of the

Sheriff of Dallas 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 Pardons and Paroles Division.

Delivered: November 9, 2011 Do Not Publish