Silva, Adam Talamantez ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,406-02

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EX PARTE ADAM TALAMANTEZ SILVA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 05-2274 IN THE 106TH DISTRICT COURT FROM GARZA COUNTY

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   Per curiam. O R D E R  

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 attempted murder and assault-family violence. He was sentenced to fifty and twenty years' imprisonment, respectively. The Amarillo Court of Appeals affirmed his convictions. Silva v. State, 07-05-00423-CR, 2006 Tex. App. LEXIS 5661 (Tex. App.-Amarillo June 29, 2006, pet. ref'd) (not designated for publication).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he did not notify him of the State's intent to enhance his punishment while an 8-year plea offer was available, did not stipulate to a prior assault used to elevate the charged assault to a felony, conceded guilt for the assault in closing argument, and did not call the complainant's cousin to testify and rebut the complainant's allegation that applicant choked her.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to when the State notified trial counsel that it would seek enhanced punishment if and when trial counsel communicated the State's intentions regarding enhanced punishment to Applicant, and if trial counsel advised Applicant of the applicable range of punishment. The trial court shall make findings of fact as to whether a plea offer for 8 years' punishment was still available when the State notified trial counsel of their intention to pursue enhanced punishment. The trial court shall make findings of fact as to whether details of Applicant's prior assault conviction were admitted into evidence and, if so, whether trial counsel could have stipulated to the conviction to prevent the details from reaching the jury. The trial court shall make findings of fact as to whether trial counsel conceded guilt for the assault-family violence allegation during closing argument. The trial court shall make findings of fact as to whether trial counsel discovered Chris Bilberry's statement, whether Bilberry testified or was available to testify, and whether his testimony would have rebutted the complainant's allegations with respect to Applicant's intent to murder. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.   

Filed: March 25, 2009

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