Lucero, Ex Parte Jimmie Urbano ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,415
EX PARTE JIMMIE URBANO LUCERO
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NO. 48,593-01-C IN THE 251 ST JUDICIAL DISTRICT COURT
POTTER COUNTY
Per Curiam.
OPINION
This is a post conviction application for writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure article 11.071. Applicant was convicted of
capital murder on May 23, 2005. The jury answered the special issues submitted pursuant
to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set
punishment at death. This Court affirmed applicant’s conviction and sentence on direct
appeal. Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008).
Lucero - 2
Applicant presents five allegations in his application in which he challenges the
validity of his conviction and resulting sentence. The trial court held an evidentiary hearing.
Applicant subsequently agreed to waive his first, second, fourth, and fifth allegations;
because of this waiver these claims are not before us on habeas review. The trial court
adopted the parties’ agreed findings of fact and conclusions of law pertaining to allegation
three based upon ineffective assistance of counsel.
This Court has reviewed the record with respect to the ineffective assistance of
counsel allegation made by applicant. Based on the habeas court’s findings and conclusions
and our own review, we hold that applicant’s counsel failed to investigate applicant’s
background or present mitigating evidence at the punishment phase in violation of Rompilla
v Beard, 545 U.S. 374 (2005). See also Wiggins v. Smith, 539 U.S. 510 (2003); Williams v.
Taylor, 529 U.S. 362 (2000). Therefore, relief is granted.
We vacate applicant’s sentence and remand the case to the trial court for a new
punishment hearing or other proceeding consistent with this opinion. See T EX. C ODE C RIM.
P ROC. art. 44.251(c).1
IT IS SO ORDERED THIS THE 15 th DAY OF SEPTEMBER, 2010.
Do Not Publish
1
Applicant and the State request that, in the interest of justice, this Court reverse the
punishment judgment and render a life sentence. This Court may not honor the parties’ request
at this time. See TEX . R. APP . P. 78.1 and T EX. C ODE C RIM. P ROC. art. 44.251(b).