









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.
 
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 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 record on this application was initially forwarded to this Court containing findings of
fact and conclusions of law, signed by the trial court on August 3, 2012, recommending that relief
be granted.  The record did not contain a subsequent order, signed by the trial court on September
25, 2012, in which the trial court rescinded its August 3, 2012 findings of fact and conclusions of
law.  
	On April 17, 2013, this Court issued an opinion granting relief in the form of a new
punishment hearing on the basis of ineffective assistance of trial counsel.  This Court's opinion
referred to the trial court's findings that trial counsel's performance was deficient in that counsel 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.  
	On April 29, 2013, this Court received a motion from the State, asking this Court to
reconsider the granting of habeas relief on its own initiative.  Because this Court's previous opinion
cited to the trial court's findings of fact and conclusions of law which had been rescinded, we will
reconsider on our own motion.  We now withdraw that opinion and issue this opinion it its place. 
	Based on an independent review of the entire record, including the affidavit submitted by trial
counsel, this Court concludes that Applicant received ineffective assistance of trial counsel during
the punishment stage of trial.  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:  May 15, 2013
Do not publish
