IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,163

EX PARTE DAVID DENMARK BROWN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F04-72008-M IN THE 194th DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of deadly conduct and sentenced to thirty-seven years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Brown v. State, No. 05-05-00902-CR (Tex. App.–Dallas, delivered January 12, 2007, pet. ref’d).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to request a self-defense instruction on the lesser included charge of deadly conduct.

The trial court, based upon the record, has determined that trial counsel was ineffective in that he failed to request a self-defense instruction on the charge of deadly conduct and that such ineffective representation prejudiced applicant. We find, therefore, that applicant is entitled to relief.

The judgment of conviction in Case No. F04-72008-M from the 194th Judicial District Court of Dallas County is vacated and the applicant is remanded to the Sheriff of Dallas County to answer the charges set out in the indictment.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.

Delivered: June 3, 2009 Do Not Publish