           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. AP-76,720



                     EX PARTE RODNEY CHARLES RACHAL



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. 601657-B IN THE 338 TH JUDICIAL DISTRICT COURT
                            HARRIS COUNTY



       Per Curiam.

                                      OPINION

       In October 1992, 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. Rachal v. State, 917 S.W.2d 799 (Tex.

Crim. App. 1996). In December 1997, applicant filed his initial application for a writ of

habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Rachal, No. WR-

60.394-01 (Tex. Crim. App. March 23, 2005) (not designated for publication).
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       In February 2009, applicant filed this subsequent application with the trial court. In

a single allegation, 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 which could not have been given full effect by the

sentencing jury. See Penry v. Johnson, 532 U.S. 782 (2001). In an order dated September

23, 2009, this Court remanded the application to the habeas court for consideration of the

merits of applicant’s claim. Ex parte Rachal, No. WR.-60,394-02 (Tex. Crim. App. Sept. 23,

2005) (not designated for publication). The habeas court held a hearing on February 18,

2011, and 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 this Court has said is not encompassed

within the previous statutory special issues. See Ex parte Smith, 309 S.W.3d 53 (Tex. Crim.

App. 2010); Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008); Ex parte Martinez,

233 S.W.3d 319 (Tex. Crim. App. 2007). The trial court found that the mitigating evidence

presented by applicant,

       growing up in an impoverished, crime ridden neighborhood, having a troubled
       childhood due to witnessing domestic violence, the abandonment by his father,
       and manifesting behavioral symptoms as a result of untreated mental and/or
       emotional problems, making positive changes during his incarceration at TYC
       . . . could have reasonably been viewed by the fact-finder as evidence that
       diminished applicant’s moral culpability.

       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
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concerning whether applicant’s mitigating evidence of low intelligence, head injury, and

troubled childhood 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: February 1, 2012

Do Not Publish
