           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. AP-76,997



                     EX PARTE WILLIAM MICHAEL MASON



              ON APPLICATION FOR WRIT OF HABEAS CORPUS
               CAUSE NO. 620074 IN THE 228TH DISTRICT COURT
                             HARRIS COUNTY



      Per Curiam.

                                       OPINION


      Applicant was convicted in March 1992 of the offense of capital murder. The jury

answered the special issues submitted under Article 37.071 of the Texas Code of Criminal

Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed

Applicant’s conviction and sentence on direct appeal. Mason v. State, 905 S.W.2d 570 (Tex.

Crim. App. 1995), cert. denied, 516 U.S. 1051 (1996).
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       Applicant’s initial habeas application was filed in the convicting court on August 18,

1997. His first subsequent application was filed pro se in the convicting court on October

19, 1999. His second subsequent application was filed pro se on September 14, 2001. All

three applications were received in this Court on January 27, 2010. We denied relief on

applicant’s initial writ and dismissed his second subsequent application. Ex parte Mason,

Nos. WR-73,408-01 & -03 (Tex. Crim. App., Apr. 14, 2010). We dismissed applicant’s

first subsequent application except for one allegation that we held satisfied the requirements

for consideration of a subsequent application under Texas Code of Criminal Procedure

Article 11.071, § 5. We remanded the following issue to the trial court for consideration of

the merits: the trial court erred in denying his properly requested mitigation instruction at

punishment and providing instead a nullification instruction that did not allow the jury to

consider and give effect to mitigating evidence presented at trial. Ex parte Mason, No. WR-

73,408-02 (Tex. Crim. App., Apr. 14, 2010). The habeas court subsequently entered

findings and conclusions, but made no recommendation to this Court.

       Reviewing the case after remand, the record shows that the mitigating evidence

presented by applicant is the sort of evidence that the United States Supreme Court has said

is not encompassed within the previous statutory special issues.         See Abdul-Kabir v.

Quarterman, 550 U.S. 233 (2007); Brewer v. Quarterman, 550 U.S. 286 (2007); Smith v.

Texas, 550 U.S. 297 (2007). Applicant presented mitigating evidence at the punishment

phase of trial tending to establish that: applicant had a troubled childhood in which he was
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abused, he witnessed his mother being abused on numerous occasions and his sisters being

sexually abused by his step-father; applicant has been diagnosed with an antisocial

personality disorder; and applicant had a long history of drug abuse that began at age 14.

       This Court has reviewed the record with respect to the allegation made by applicant.

We note that the former statutory special issues did not provide applicant’s jury with an

adequate mechanism for exercising its reasoned moral judgment concerning whether

applicant’s mitigating evidence warranted the imposition of a life sentence rather than the

penalty of death. Therefore, based on our own review, and because some of the mitigating

evidence presented at applicant’s trial is the type of evidence for which he was entitled to a

separate vehicle for consideration, relief is granted. We vacate applicant’s sentence and

remand the case to the trial court for a new punishment hearing.




Delivered: March 20, 2013
Do Not Publish
