EX PARTE DAVID LAMAR TARBUTTON (other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. AP-76,651
EX PARTE DAVID LAMAR TARBUTTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-1864-95-B IN THE 93RD JUDICIAL DISTRICT COURT
FROM HIDALGO 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 was convicted pursuant to a single indictment of one count of possession of child pornography, for which he received a ten year sentence, one count of indecency with a child by exposure, for which he also received a ten year sentence, one count of aggravated sexual assault of a child, for which he received a thirty year sentence, and one count of indecency with a child by contact, for which he received a fifteen year sentence. The Court of Appeals affirmed his conviction. Tarbutton v. State, No. 13-98-00101-CR (Tex. App. - Corpus Christi, July 22, 1999, pet. ref'd).

Applicant contends, inter alia, that he was denied due process because the jury charge in the aggravated sexual assault of a child count allowed for a non-unanimous jury verdict on that count. The trial court has determined that the jury charge in the aggravated sexual assault count was erroneous, that the prosecutor mis-informed the jury regarding the unanimity requirement, and that Applicant was egregiously harmed by the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We find, therefore, that Applicant is entitled to relief. The judgment of conviction in Count Three of Cause No. CR-1864-95-B from the Judicial District Court of Hidalgo County is set aside, and Applicant is remanded to the custody of the Sheriff of Hidalgo County to answer the charges as set out in Count Three of the indictment.

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

 

Delivered: September 28, 2011

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