EX PARTE LOUIS IVAN AVILES (other)
Annotate this CaseIN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-71,017-01
EX PARTE LOUIS IVAN AVILES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 971688-A IN THE 339TH JUDICIAL DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. Cochran, J., filed a concurring statement. Alcala, J., not participating.
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 sexual assault of a child and sentenced to twenty-five years' imprisonment.
On November 26, 2008, this Court remanded this application to the trial court for findings of fact and conclusion of law. On September 30, 2010, the trial court held a habeas hearing and heard testimony and evidence. On December 2, 2010, the trial court signed and adopted the State's proposed findings of fact, conclusions of law and recommendation to deny relief. Applicant filed a motion for the court to reconsider its findings, and on December 17, 2010, the trial court vacated its prior findings, conclusions and order. The trial court entered new findings of fact and conclusions of law that were based on Applicant's application and attached exhibits, affidavits, the State's answer, and official court documents. The trial court recommended that relief be granted.
The trial court's findings of fact, conclusions of law and recommendation to grant relief are not supported by the record. Applicant has not demonstrated that his trial counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Nor has Applicant shown that counsel's errors were so serious as to deprive Applicant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1984). This Court has undertaken an independent review of all the evidence in the record. Based on this Court's independent review of the entire record, we deny relief.
Filed: May 25, 2011
Do not publish
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