             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,978


                    EX PARTE RICHARD A. CRUTCHFIELD, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 241-1405-09 IN THE 241ST DISTRICT COURT
                               FROM SMITH 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 burglary of a

habitation and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his

conviction. Crutchfield v. State, No. 12-09-00440-CR (Tex. App.—Tyler Jul. 29, 2011)

(unpublished).

        Applicant contends that his trial counsel rendered ineffective assistance because he did not

discover that a conviction alleged as an enhancement and used as punishment evidence had been

reversed and dismissed. Applicant contends that this failure prevented counsel from properly
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challenging the use of that prior conviction in the punishment phase.

          The trial court has determined that trial counsel's performance was deficient in that counsel

did not discover that a prior conviction resulting in a life sentence had been overturned on appeal and

then dismissed. As counsel did not discover this and demonstrate that the prior conviction was

invalid, the State was able to use the vacated life sentence at punishment as evidence and in

argument, which prejudiced Applicant. Relief is granted. The sentence in Cause No. 241-1405-09

in the 241st District Court of Smith County is vacated, and Applicant is remanded to the custody of

the Sheriff of Smith County so that the trial court may conduct new punishment proceedings. 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: March 6, 2013
Do not publish
