              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                           NO. WR-78,112-01



                             EX PARTE HECTOR TORRES GARCIA




              ON APPLICATION FOR WRIT OF HABEAS CORPUS
          FROM CAUSE NO. CR-1522-89-G IN THE 370 TH DISTRICT COURT
                           HIDALGO COUNTY

          Per curiam.

                                                OPINION

          This is a post-conviction application for a writ of habeas corpus filed pursuant to

the provisions of Article 11.071.1

          In July 1990, a jury found applicant guilty of the offense of capital murder. The

jury answered the special issues submitted pursuant to Article 37.071, and the trial court,

accordingly, set applicant’s punishment at death. This Court affirmed applicant’s


          1
              All references to articles refer to the Texas Code of Criminal Procedure unless otherwise
stated.
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conviction and sentence on direct appeal. Garcia v. State, 887 S.W.2d 862 (Tex. Crim.

App. 1994), cert. denied, 514 U.S. 1021 (1995). Applicant filed this his initial post-

conviction application for a writ of habeas corpus in the convicting court on August 29,

1997, raising nine claims containing numerous sub-claims alleging ineffective assistance

of counsel and challenging the validity of applicant’s conviction and sentence on other

grounds. Applicant filed his second and third habeas applications, which he labeled

“Supplemental” and “Subsequent,” in the trial court on March 31, 2009. The district

clerk forwarded all three applications to this Court over three years later, and the Court

received them on September 17, 2012.

       On June 5, 2013, this Court issued an order remanding applicant’s initial writ to

the trial court to “resolve the issues raised by any means it deem[ed] appropriate.”

Applicant’s trial attorneys executed affidavits in 2014 addressing their failure to timely

and properly object and request a limiting instruction regarding the State’s use of co-

conspirator Eduardo Morales’ prior inconsistent statement at applicant’s trial (the subject

of applicant’s Claim V). The attorneys stated that their omissions were not the result of

trial strategy.

       The habeas judge held an evidentiary hearing and admitted applicant’s attorneys’

affidavits and other evidence. The judge signed findings of fact and conclusions of law,

which had been stipulated to by both parties. In those findings and conclusions, the judge

found meritorious applicant’s Claims V and VI of his initial writ application. The judge
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recommended that this Court grant applicant relief in the form of a new punishment

hearing. The judge did not reach the merits of applicant’s other claims in this writ

application.

       We agree with the habeas court’s finding that, in his Claim V, applicant alleged

facts that would entitle him to punishment phase relief pursuant to Strickland v.

Washington, 466 U.S. 668 (1984). We hold that applicant is entitled to relief in the form

of a new punishment hearing. We deny relief regarding the remainder of applicant’s

claims. Further, we decline to adopt the habeas court’s findings number 54, 66, 67, 68,

and 69.




Filed: December 16, 2015

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