              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.

                                            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 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 App.—San Antonio Jul. 22, 2009) (unpublished).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.
                                                                                                        2

        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Do not publish
