Brewster, Ex Parte Arthur Palmer

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 2005
• Docket: AP-75,114
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,114 EX PARTE ARTHUR PALMER BREWSTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Per Curiam. Meyers, Womack, Keasler, and Hervey, JJ. dissent.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of murder, and punishment was assessed at thirty-five years' confinement. The conviction was affirmed on appeal. Brewster v. State, No. 05-00-00515-CR (Tex. App. -- Dallas, delivered March 15, 2001, pet. ref'd.).

Applicant contends, inter alia, that his trial counsel was ineffective during the punishment phase of trial, for failing to interview and call available witnesses to testify on applicant's behalf. To establish that counsel was ineffective for failing to call witnesses, applicant must make a showing that such witnesses were available and that appellant would benefit from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Applicant has presented affidavits from numerous individuals who state that they were available and willing to testify on applicant's behalf, but that they were never contacted by trial counsel. In addition, trial counsel has provided an affidavit stating that the defense was unprepared for the punishment phase of trial, and that the failure to call favorable punishment witnesses was not the result of any trial strategy.

After conducting a hearing on applicant's habeas claims, the trial court has entered findings of fact and conclusions of law recommending that applicant be granted a new punishment hearing. We agree. Habeas corpus relief is granted. The sentence in cause number F-98-39469-PS from the 282nd District Court of Dallas County is set aside and applicant is remanded to the trial court for a new punishment hearing.

Applicant's remaining claims are denied.

DO NOT PUBLISH

DELIVERED: March 16, 2005