             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,262-01


                      EX PARTE MARK DOUGLAS STALEY, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 2003CR7441-W1 IN THE 399TH DISTRICT COURT
                            FROM BEXAR COUNTY


        Per curiam. YEARY , J., not participating.

                                            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 one count of

murder and one count of unlawfully carrying a weapon on licensed premises. He was sentenced to

sixty years’ imprisonment for the murder count, and ten years’ imprisonment for the weapon count,

to be served concurrently. The Fourth Court of Appeals affirmed his conviction. Staley v. State, No.

04-09-00215-CR (Tex. App. — San Antonio 2010) (not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance at the punishment

stage because they failed to request a jury charge on the special issue of sudden passion arising from
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adequate cause, and failed to call available character witnesses in mitigation of punishment.

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

were unaware of the availability of the sudden passion instruction at punishment, and that such

deficient performance prejudiced Applicant. Relief is granted. The sentence in Count I of Cause

No. 2003CR7441-W1 in the 399th District Court of Bexar County is set aside, and Applicant is

remanded to the custody of the Sheriff of Bexar County for a new hearing on punishment as to that

count only. 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: December 19, 2018
Do not publish
