Ex Parte Mello

OPINION ON PETITION FOR DISCRETIONARY REVIEW

ANNE GARDNER, Justice.

I. Introduction

Pursuant to former rule of appellate procedure 50, we withdraw our June 30, 2011 opinion and judgment and substitute the following. 1 See Order Amending Texas Rules of Appellate Procedure, 74 Tex. B.J. 763 (Tex.Crim.App. effective Sept. 1, 2011).

James Oliver Mello III appeals from the denial of his article 11.072 post-conviction application for writ of habeas corpus. In one point, Mello challenges the habeas court’s conclusion (and supporting findings) that Mello failed to prove he is actually innocent. Because…