Van Cleave, Ex Parte Jimmy Earl ( 2013 )

OPINION WITHDRAWN 5-15-13
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,012
EX PARTE JIMMY EARL VAN CLEAVE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 9403197 IN THE 179TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
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 [14th 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
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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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