Howard, Ex Parte Michael Dee

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,809

Ex parte MICHAEL DEE HOWARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 4321-A IN THE 216TH DISTRICT COURT FROM GILLESPIE COUNTY

K ELLER, P.J., delivered the opinion of the Court in which P RICE, W OMACK, J OHNSON, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K EASLER, J., filed a dissenting opinion. M EYERS, J., did not participate.

This is an application for a writ of habeas corpus. The habeas judge originally recommended

that we grant relief in the form of a new trial because of counsel’s deficient performance in failing

to have mental-health experts appointed and in failing to properly investigate and present an insanity

defense. We originally filed and set this application to determine whether applicant was prejudiced

at the guilt phase of trial by counsel’s deficient performance. We concluded that applicant was not

prejudiced at the guilt phase because Texas law prevents the consideration at guilt of evidence of HOWARD — 2

insanity caused by voluntary intoxication.1 But because Texas law allows consideration of such

evidence at punishment, and the habeas judge had recommended granting relief, we remanded the

proceeding to the habeas judge for findings of fact on whether applicant was prejudiced with respect

to the issue of punishment.2 In his findings of fact and conclusions of law on remand, the habeas

judge concludes that applicant was prejudiced with respect to the issue of punishment. The record

supports the habeas judge’s conclusion in this regard. Consequently, we grant applicant relief in the

form of a new punishment hearing and remand this case to the trial court for that purpose.

Delivered: April 2, 2014 Publish

1 Ex parte Howard, No. AP-76, 809, slip op. at 15 (Tex. Crim. App. September 11, 2013) (not designated for publication). 2 Id. at 15-17.