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Click here for the full text of this decision FACTS:Authorities indicted Kenneth Everett Knipp in Cause No. 03-12-08654-CR in a three-count indictment for three offenses of “delivery of methamphetamine, in an amount of one gram or more but less than four grams by aggregate weight, including adulterants and/or dilutants, alleged to have occurred on or about September 5, 12, and 25, 2003.” Authorities also indicted Knipp in Cause No. 04-10-08609-CR, for the offense of delivery of methamphetamine, “in an aggregate [sic] of four grams or more but less than 200 grams by aggregate weight, including adulterants and/or dilutants, alleged to have occurred on or about September 12, 2003.” Pursuant to a plea agreement in both causes, Knipp pleaded guilty. On April 15, 2005, in accordance with the plea agreements, the trial court found Knipp guilty as charged in each indictment and sentenced him to 10 years of imprisonment, probated for five years, in all three counts in Cause No. 03-12-08654-CR and in Cause No. 04-10-08609-CR. On Sept. 20, 2005, the state filed a motion to revoke community supervision in all cases. On Oct. 11, 2005, authorities indicted Knipp in Cause No. 05-10-08941-CR for the offense of possession of methamphetamine, “in an amount of one gram or more but less than four grams, including adulterants and/or dilutants, alleged to have occurred on or about September 5, 2005.” Pursuant to plea agreements, the state moved to dismiss Cause No. 05-10-08941-CR, and Knipp pleaded true to the allegations in the state’s motions to revoke. On May 11, 2006, in accordance with the plea agreements, the trial court found true the allegations in the state’s motions to revoke, dismissed Cause No. 05-10-08941-CR, revoked Knipp’s community supervision in all cases in both Cause No. 03-12-08654-CR and Cause No. 04-10-08609-CR, and reformed the sentences to five years of imprisonment. Thus, the indictment in this case alleged that Knipp delivered between 4 and 200 grams of methamphetamine on or about Sept. 12, 2003. The trial court’s original judgment in this case erroneously reflected that Knipp committed this offense on Sept. 12, 2004. On June 26, 2006, Knipp filed his initial writ, which, among other things, alleged that his counsel was ineffective for not asserting his actual innocence of this offense on the basis that Knipp was incarcerated on Sept. 12, 2004, and therefore could not have committed the offense on that date. On July 24, 2006, the trial court filed a nunc pro tunc judgment reflecting that the offense in this case was committed on Sept. 12, 2003. The CCA denied relief on Knipp’s initial writ on August 9, 2006. On Dec. 12, 2006, Knipp filed a subsequent writ of habeas corpus asserting that the offense for which he was convicted in this case (i.e., delivering between 4 and 200 grams of methamphetamine on or about Sept. 12, 2003, as reflected by the nunc pro tunc judgment) was actually the same offense alleged in count two of the indictment in Cause No. 03-12-08654-CR (i.e., delivering between 1 and 4 grams of methamphetamine on or about Sept. 12, 2003). In its answer to Knipp’s subsequent writ, the state agreed and confirmed that further investigation after the filing of Knipp’s subsequent writ revealed that: “Applicant made only one delivery to Detective Likens on September 12, 2003, at about 4:30 p.m., in the Academy parking lot, North Loop 336, Conroe, Montgomery County, Texas. [Exhibit E, being the affidavit of DEA agent Kirk Ervin] The lab report in this case reflected a gross weight of 24.7 grams, which included the heat sealed plastic bag used to transport and store the methamphetamine. [Ex E] The methamphetamine delivered by Applicant weighed 1.1 grams, which is approximately the 1.4 gram weight reflected in the report of Conroe Police Detective David Womack.” Exhibit E to the state’s response to Knipp’s subsequent writ is an affidavit from DEA agent Kirk Ervin, dated Jan. 11, 2007, stating: “I have reviewed the files of the agency relating to the drug purchase made by Detective Don Likens on September 12, 2003, at about 4:30 p.m., from the applicant, Kenneth Knipp, in the Academy parking lot, North Loop 336, Conroe, Montgomery County, Texas. Only one buy was made from Mr. Knipp on that day at that time and place. The DEA laboratory determined that the substance containing the methamphetamine purchased from Mr. Knipp, weighed 1.1 grams. The lab report in this case reflects a Gross Weight of 24.7 grams. The difference in the weight of the methamphetamine substance and the gross weight is the packaging material a heat sealed plastic bag, used to contain the methamphetamine for transport to the laboratory and storage.” The laboratory weight of the methamphetamine substance approximated the 1.4 gram weight reflected in the report of Conroe Police Detective David Womack in this case. In its answer to Knipp’s subsequent writ, the state further asserted that it erroneously believed that Knipp committed two deliveries on Sept. 12, 2003, which apparently explained the two indictments alleging two separate deliveries on or about that date. In reindicting Knipp, the state apparently mistook the gross weight in the DEA lab report as being the weight of methamphetamine delivered in some other delivery than that reported by Womack, which was indicted as count two in Cause No. 03-12-08654-CR. HOLDING:The court granted the petition for a writ of habeas corpus. Because the trial court twice convicted Knipp and sentenced him for the same delivery, Knipp is entitled to habeas corpus relief, the CCA stated. The state claimed that the CCA should consider the merits of Knipp’s subsequent writ under Texas Code of Criminal Procedure Art. 11.07, �4(a)(1), because it is “unlikely that Applicant saw or could have known what the laboratory report and offense reports reflected” when he filed his initial writ. The CCA, however, found it unnecessary to decide whether Knipp’s subsequent writ met the requirements of Art. 11.07, �4(a)(1). The CCA decided that Knipp’s subsequent writ and the record established that, by a preponderance of the evidence, but for the double-jeopardy violation no rational juror could have found Knipp guilty beyond a reasonable doubt. Knipp, the CCA stated, accompanied the meritorious double-jeopardy claim in his subsequent writ with a prima facie showing of actual innocence of delivering between 4 and 200 grams of methamphetamine on or about Sept. 12, 2003, as alleged in the indictment in this case. On this record, the CCA stated that Knipp could not be guilty of that offense. OPINION:Hervey, J., delivered the opinion for a unanimous court.

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