           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. AP-76,818



                     EX PARTE GUY STEPHEN ALEXANDER



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. 532255-C IN THE 338 TH JUDICIAL DISTRICT COURT
                            HARRIS COUNTY



      Per Curiam.

                                     OPINION

      In August 1989, a jury convicted applicant of the offense of capital murder. The jury

answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article

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

applicant’s conviction and sentence on direct appeal. Alexander v. State, No. AP-70,941

(Tex. Crim. App., April 14, 1993).     On January 16, 2001, applicant filed his initial

application for a writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex

parte Alexander, No. WR-57,156-01 (Tex. Crim. App., Nov. 5, 2003).
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       In a single allegation in this subsequent application, applicant alleged that he is

entitled to relief from his death sentence because he presented significant mitigating evidence

related to his moral culpability and the appropriateness of a death sentence that could not

have been given full effect by the sentencing jury. See Penry v. Johnson, 532 U.S. 782

(2001). In an order dated June 16, 2010, this Court remanded the application to the habeas

court for consideration of the merits of applicant’s claim. Ex parte Alexander, No. WR-

57,156-02 (Tex. Crim. App., June 16, 2010). The habeas court subsequently entered findings

of fact and conclusions of law.

       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: he had limited intellectual ability; he had physical

abnormalities, including unusual gait and injuries to his arms that were sustained during birth

and left untreated that caused him to receive negative attention; he attended special education

classes for emotionally disturbed children and manifested symptoms of severe emotional

disorder as a child but did not receive treatment; and had a long history of drug abuse that

began at age 13.

       The habeas court stated that applicant “is entitled to relief because the mitigating
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value of his evidence, including significant evidence of mental impairments, severe drug

abuse and addiction, and a troubled childhood, fell outside the scope of the special issues.”

The habeas court concluded 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.      Based on the forgoing, the habeas court

recommended that this Court vacate the punishment portion of the trial court’s judgment and

remand the case for a new punishment hearing.

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

Based on the habeas court’s findings and conclusions and our own review, and because 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: June 13, 2012

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