Van Cleave, Ex Parte Jimmy Earl ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-77,012

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EX PARTE JIMMY EARL VAN CLEAVE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 9403197 IN THE 179TH DISTRICT COURT FROM HARRIS COUNTY

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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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated kidnapping and sentenced to life imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Van Cleave v. State, No. 14-94-00731-CR (Tex. App. - Houston [14^th Dist.] August 14, 1997, pet ref'd).

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to present any evidence or testimony in mitigation of punishment.

The trial court has determined that trial counsel's performance was deficient in that counsel did not present favorable punishment evidence, despite the presence of witnesses who would have testified favorably on Applicant's behalf at punishment, and that such deficient performance prejudiced Applicant. Relief is granted. The sentence in Cause No. 9403197 in the 179th District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County for a new sentencing hearing. 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: April 17, 2013

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