
 








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,114


EX PARTE ARTHUR PALMER BREWSTER, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM DALLAS COUNTY



 Per Curiam.  Meyers, Womack, Keasler, and Hervey, JJ. dissent. 

O P I N I O N 



 This is a post-conviction application for a writ of habeas corpus forwarded to this
Court pursuant to Tex. Code Crim. Proc.  art. 11.07, § 3, et seq..  Applicant was convicted
of the felony offense of murder, and punishment was assessed at thirty-five years'
confinement.  The conviction was affirmed on appeal.  Brewster v. State, No. 05-00-00515-CR (Tex. App. -- Dallas, delivered March 15, 2001, pet. ref'd.). 
	Applicant contends, inter alia, that his trial counsel was ineffective during the
punishment phase of trial, for failing to interview and call available witnesses to testify on
applicant's behalf. To establish that counsel was ineffective for failing to call witnesses,
applicant must make a showing that such witnesses were available and that appellant would
benefit from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). 
Applicant has presented affidavits from numerous individuals who state that they were
available and willing to testify on applicant's behalf, but that they were never contacted by
trial counsel.  In addition, trial counsel has provided an affidavit stating that the defense was
unprepared for the punishment phase of trial, and that the failure to call favorable punishment
witnesses was not the result of any trial strategy.
	After conducting a hearing on applicant's habeas claims, the trial court has entered
findings of fact and conclusions of law recommending that applicant be granted a new
punishment hearing.  We agree.  Habeas corpus relief is granted.  The sentence in cause
number F-98-39469-PS from the 282nd District Court of Dallas County is set aside and
applicant is remanded to the trial court for a new punishment hearing.  
	Applicant's remaining claims are denied.

DO NOT PUBLISH
DELIVERED: March 16, 2005
