           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. WR-78,258-01



                       EX PARTE ANGEL GALVAN RIVERA



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
       FROM CAUSE NO. 45906-41-1 IN THE 41 ST DISTRICT COURT
                        EL PASO COUNTY

      Per Curiam.

                                     OPINION

      This is an application for a writ of habeas corpus filed pursuant to the provisions of

Texas Code of Criminal Procedure Article 11.07.

      In June 1986, a jury found applicant guilty of the offense of capital murder committed

in October 1984. The jury answered the special issues submitted pursuant to Texas Code of

Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant’s

punishment at death. This Court affirmed applicant’s conviction and sentence on direct

appeal. Rivera v. State, 808 S.W.2d 80 (Tex. Crim. App. 1991). Applicant filed his initial
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post-conviction application for writ of habeas corpus in the convicting court on August 31,

1995. Having discovered that a writ application had been filed in the trial court in 1995 that

had never been forwarded, this Court on August 20, 2012, ordered the trial court to resolve

the issues raised in the writ application and have the clerk forward it to this Court within a

certain period of time.

       This Court received the record of the case complete with signed findings and

conclusions on November 19, 2012. However, it was later discovered that applicant’s

counsel had never been notified of this Court’s order. Therefore, counsel did not have a

chance to participate in the trial court’s resolution of the issues. Accordingly, we remanded

the case to the trial court to resolve the issues presented in the writ application with the

appropriate participation of counsel on both sides on January 30, 2013.

       Applicant presents nine allegations in his application in which he challenges the

validity of his conviction and resulting sentence. Based upon an agreed stipulation with the

State, applicant has agreed to waive all allegations challenging the validity of his conviction

(allegations one through four, six, and part of eight); these claims are dismissed as waived.

The trial court adopted the parties’ agreed findings of fact and conclusions of law which

recommend relief based upon ineffective assistance of counsel as set out in allegation five.

       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
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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 dismiss as moot applicant’s

remaining challenges to his sentence (allegations seven, part of eight, and nine).

       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).




DELIVERED: DECEMBER 11, 2013

DO NOT PUBLISH
