## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. AP-77,010

EX PARTE MARLIN ENOS NELSON

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 483164-B IN THE 178 JUDICIAL DISTRICT COURT T H HARRIS COUNTY

Per Curiam

. O P I N I O N On August 10, 1988, a jury convicted applicant of the of f ense of capital m

urder. The jury answered the special issues subm itted pursua n t to Texas Code of Crim inal Procedure Article 37.071, and the trial court, accordingly , set punishm ent at death. This Court af f irm ed applicant’s conviction and sentence on direct appeal. Nelson v. State , 848 S.W .2d 126 (Tex. Crim

. App. 1992). On October 13, 1998, applicant f iled his initial application f or a writ of habeas corpus p u r s u a n t t o A rticle 11.071. W e denied relief

. Ex parte Nelson , No. W R53,148-01 (Tex. Crim

. App. Sept. 11, 2002). Applicant f iled second application f

or writ ofNelson - 2

habeas corpus pursuant to Article 11.071 on Septem ber 20, 2001. W e dism issed the second application as subsequent. Ex parte Nelson , No. W R-53,148-02 (Tex. Crim

. App. Sept. 11, 2002). In a single allegation in this subsequent applic a t ion, applicant alleged that he is entitled to relief f

rom his death sentence because he presented signif icant m i t i g a t i n g e v idence related to his m oral culpability and the appropriateness of a death sen tence that could not have been gi v e n f

u l l ef f ect by the sentencing jury

. See Penry v. Lynaugh , 492 U.S. 302 (1989); Penry v. Johnson , 532 U.S. 782 (2001). In an order dated June 16, 2010, this Court

rem anded the applica tion to the habeas court f or consideration of the m erits of applicant’s claim

. Ex parte Nelson , No. W R-53,148-03 (Tex. Crim

. App., June 16, 2010). The habeas court subsequently

entered f indings of

f act and conclusions of

law. Reviewing the case af

ter rem and, the record sho w s that the m itigating evidence presented by applicant is the sort of evidence that the United States Suprem e Court has said is not encom

passed within the previous statutory special issu e s . See Abdul-Kabir v. Quarterman , 550 U.S. 233 (2007); Brewer v. Quarterman , 550 U.S. 2 8 6 ( 2 007); Smith v. Texas , 550 U.S. 297 (2007). A pplicant presented m itigating evidence at the punishm ent phase of t r i a l t e n d i ng to establish that during his childhood, applicant was subjected to violence, sexual abuse, poverty , and deprivation, which resulted in problem s with im pulse control and the excessive use of drugs and alcohol.Nelson - 3

The habeas court concluded t h a t t h e f orm er statutory special issues did not provide applicant’s jury with an adequate m echanism f or exercisin g i t s r e asoned m oral judgm ent concerning whether applicant’s m itigating evidence warranted the im position of a lif

e sentence rather than the penalty of death. Base d o n t h e f orgoing, the habeas court

recom m ended that this Court vacate the punishm ent portion of the trial court’s judgm ent and

rem and the case f

or a new punishm ent hearing. This Court has reviewed the record with respect to the allegation m ade by applicant. Based on the habeas court’s f indings and conclusions and our own review relief is granted. W e vacate applicant’s sentence and rem and the case to the trial court f or a new punishm ent hearing. Delivered: March 27, 2013 Do Not Publish