Pena, Joseph

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,938-01

EX PARTE JOSEPH PENA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 96-CR-2781-W1 IN THE 186TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam. Hervey, J., not participating.

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 life imprisonment. The Fourth Court of Appeals

affirmed his conviction. Pena v. State, No. 04-97-80-CR (Tex. App.–San Antonio, November

12, 1998).

Applicant contends, among other things, that his trial counsel rendered ineffective

assistance during the punishment phase of trial because she failed to investigate an 2

extraneous murder offense, failed to investigate and present mitigating evidence, and failed

to request a limiting instruction regarding that extraneous offense.

The trial court has determined that trial counsel's performance was deficient and that

such deficient performance prejudiced Applicant. We agree. Relief is granted. The sentence

in Cause No. 96-CR-2781 in the 186th District Court of Bexar County is set aside, and

Applicant is remanded to the custody of the Sheriff of Bexar County for a new punishment

hearing. Applicant’s other grounds 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Delivered: September 17, 2014 Do not publish