                                                 OPINION WITHDRAWN 5-15-13




             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-77,012


                     EX PARTE JIMMY EARL VAN CLEAVE, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 9403197 IN THE 179TH DISTRICT COURT
                                FROM HARRIS 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 aggravated

kidnapping and sentenced to life imprisonment. The Fourteenth Court of Appeals affirmed his

conviction. Van Cleave v. State, No. 14-94-00731-CR (Tex. App. - Houston [14th Dist.] August 14,

1997, pet ref’d).

        Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to present any evidence or testimony in mitigation of punishment.

        The trial court has determined that trial counsel's performance was deficient in that counsel
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did not present favorable punishment evidence, despite the presence of witnesses who would have

testified favorably on Applicant’s behalf at punishment, and that such deficient performance

prejudiced Applicant. Relief is granted. The sentence in Cause No. 9403197 in the 179th District

Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris

County for a new sentencing hearing. 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: April 17, 2013
Do not publish
