











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. WR-76,050-01




EX PARTE JAMES PEMBERTON STEWART IV, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2007CRN11-D1 IN THE 49TH DISTRICT COURT
FROM WEBB COUNTY




            Per curiam.
 
O P I N I O N

            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 murder and
sentenced to fifty years’ imprisonment.  The Fourth Court of Appeals affirmed his conviction.
Stewart v. State, No. 04-08-00274-CR (Tex. App.—San Antonio Jul. 22, 2009) (unpublished). 
            Applicant contends, among other things, that his trial counsel rendered ineffective assistance
at the punishment phase of trial. He alleges that counsel did not rebut claims that Applicant had gang
tattoos, and did not present mitigation witnesses.

            After a live hearing, the trial court determined that trial counsel's performance was deficient
in that counsel did not rebut the state’s gang affiliation evidence, did not present mitigation evidence, 
and that such deficient performance prejudiced Applicant.  Relief is granted.  The sentence in Cause
No. 2007CRN11-D1 in the 49th District Court of Webb County is set aside, and Applicant is
remanded to the custody of the Sheriff of Webb County for a new punishment hearing. Applicant’s
remaining claims challenging the validity of the conviction are denied.  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: June 11, 2014
Do not publish
