           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. AP-76,415



                      EX PARTE JIMMIE URBANO LUCERO



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
         NO. 48,593-01-C IN THE 251 ST JUDICIAL DISTRICT COURT
                             POTTER COUNTY



      Per Curiam.

                                     OPINION

      This is a post conviction application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure article 11.071. Applicant was convicted of

capital murder on May 23, 2005. The jury answered the special issues submitted pursuant

to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set

punishment at death. This Court affirmed applicant’s conviction and sentence on direct

appeal. Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008).
                                                                                         Lucero - 2

       Applicant presents five allegations in his application in which he challenges the

validity of his conviction and resulting sentence. The trial court held an evidentiary hearing.

Applicant subsequently agreed to waive his first, second, fourth, and fifth allegations;

because of this waiver these claims are not before us on habeas review. The trial court

adopted the parties’ agreed findings of fact and conclusions of law pertaining to allegation

three based upon ineffective assistance of counsel.

       This Court has reviewed the record with respect to the ineffective assistance of

counsel allegation made by applicant. Based on the habeas court’s findings and conclusions

and our own review, we hold that applicant’s counsel failed to investigate applicant’s

background or present mitigating evidence at the punishment phase in violation of Rompilla

v Beard, 545 U.S. 374 (2005). See also Wiggins v. Smith, 539 U.S. 510 (2003); Williams v.

Taylor, 529 U.S. 362 (2000). Therefore, relief is granted.

       We vacate applicant’s sentence and remand the case to the trial court for a new

punishment hearing or other proceeding consistent with this opinion. See T EX. C ODE C RIM.

P ROC. art. 44.251(c).1

       IT IS SO ORDERED THIS THE 15 th DAY OF SEPTEMBER, 2010.

Do Not Publish




       1
          Applicant and the State request that, in the interest of justice, this Court reverse the
punishment judgment and render a life sentence. This Court may not honor the parties’ request
at this time. See TEX . R. APP . P. 78.1 and T EX. C ODE C RIM. P ROC. art. 44.251(b).
