









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 74,823


EX PARTE NICHOLAS DURAN BALLARD, Applicant





ON APPLICATION FOR WRIT OF HABEAS CORPUS 
FROM GREGG COUNTY



 Per Curiam.


O P I N I O N

	This is an application for a writ of habeas corpus which was transmitted to this Court
by the clerk of the trial court pursuant to the provisions of Article 11.07, V.A.C.C.P.  Ex Parte
Young, 418 S.W.2d 824 (Tex. Crim. App. 1967).  Applicant was convicted of aggravated
kidnaping, and his punishment was assessed at fifty years confinement.  Applicant's appeal was
dismissed for lack of jurisdiction.
 Applicant contends that his trial counsel rendered ineffective assistance because he
failed to advance the affirmative defense of voluntary release of the victim in a safe place at
his punishment hearing, which would have reduced the offense from a first degree felony to
a second degree felony with a punishment range of two to twenty years imprisonment.  This
Court finds that Applicant was denied effective assistance of counsel. 
	Habeas corpus relief is granted.  The judgment and sentence in Case Number 28413-B
of the124th Judicial District Court of Gregg County are vacated insofar as they find the
Applicant guilty of a felony of the first degree and assess punishment. The Applicant is
remanded to the custody of the Sheriff of Gregg County for further punishment-stage
proceedings. 
	A copy of this opinion shall be sent to the Department of Criminal Justice, Institutional
Division.

DO NOT PUBLISH
DELIVERED: November 5, 2003 
