IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,336

EX PARTE MARIANO ROSALES, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 918206 IN THE 351^ST JUDICIAL DISTRICT COURT

FROM HARRIS 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 pleaded guilty to driving while intoxicated, and was sentenced to eleven years’ imprisonment. He did not appeal his conviction.

            Applicant contends that he was denied due process and a fair trial, because his charge was based on breath test evidence that was unreliable. Deetrice Wallace, a contract technical supervisor in charge of the breath test instruments that produced Applicant’s breath test results, was convicted of tampering with governmental records relating to breath test machine inspection and maintenance during the period applicable to Applicant’s case.

            The trial court has determined that the evidence upon which Applicant’s conviction in this cause is based was unreliable, and that Applicant was therefore denied due process and a fair trial. Relief is granted. The judgment in Cause No. 918206 in the 351st Judicial District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charge against him.

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

Delivered: May 5, 2010

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